EXHIBIT 4.1
EXECUTION COPY
ARDENT HEALTH SERVICES, INC.
10% SENIOR SUBORDINATED NOTES DUE 2013
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INDENTURE
Dated as of August 19, 2003
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U.S. BANK TRUST NATIONAL ASSOCIATION
TRUSTEE
CROSS-REFERENCE TABLE*
Trust Indenture Act Indenture
Section Section
310(a)(1).............................................................. 7.10
(a)(2).............................................................. 7.10
(a)(5).............................................................. 7.10
(b) ................................................................ 7.10
(c) ................................................................ N.A.
311(a)................................................................. 7.11
(b)................................................................. 7.11
312(a)................................................................. 2.05
(b)................................................................. 12.03
(c) ................................................................ 12.03
313(a)................................................................. 7.06
(b)(2).............................................................. 7.06
(c)................................................................. 7.06
12.02
(d) ................................................................ 7.06
314(a)................................................................. 4.03
12.05
(c)(1).............................................................. 12.04
(c)(2).............................................................. 12.04
(e)................................................................. 12.05
316(a)(last sentence).................................................. 2.09
(a)(1)(A)........................................................... 6.05
(a)(1)(B)........................................................... 6.04
317(a)(1).............................................................. 6.08
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions....................................................1
Section 1.02. Other Definitions.............................................24
Section 1.03. Incorporation by Reference of Trust Indenture Act.............25
Section 1.04. Rules of Construction.........................................25
Article 2
THE NOTES
Section 2.01. Form and Dating...............................................26
Section 2.02. Execution and Authentication..................................27
Section 2.03. Registrar and Paying Agent....................................28
Section 2.04. Paying Agent to Hold Money in Trust...........................28
Section 2.05. Holder Lists..................................................28
Section 2.06. Transfer and Exchange.........................................28
Section 2.07. Replacement Notes.............................................41
Section 2.08. Outstanding Notes.............................................41
Section 2.09. Treasury Notes................................................42
Section 2.10. Temporary Notes...............................................42
Section 2.11. Cancellation..................................................42
Section 2.12. Defaulted Interest............................................42
Section 2.13. CUSIP Numbers.................................................43
Article 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee............................................43
Section 3.02. Selection of Notes to Be Redeemed.............................43
Section 3.03. Notice of Redemption..........................................44
Section 3.04. Effect of Notice of Redemption................................44
Section 3.05. Deposit of Redemption Price...................................44
Section 3.06. Notes Redeemed in Part........................................45
Section 3.07. Optional Redemption...........................................45
Section 3.08. Mandatory Redemption..........................................46
Section 3.09. Offer to Purchase.............................................46
Article 4
COVENANTS
Section 4.01. Payment of Notes..............................................48
Section 4.02. Maintenance of Office or Agency...............................48
Section 4.03. Reports.......................................................49
Section 4.04. Compliance Certificate........................................49
Section 4.05. Taxes.........................................................50
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Section 4.06. Stay, Extension and Usury Laws................................50
Section 4.07. Restricted Payments...........................................50
Section 4.08. Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.......................................54
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock....55
Section 4.10. Asset Sales...................................................58
Section 4.11. Transactions with Affiliates..................................60
Section 4.12. Liens.........................................................61
Section 4.13. Corporate Existence...........................................61
Section 4.14. Offer to Repurchase upon Change of Control....................62
Section 4.15. Limitation on Senior Subordinated Debt........................63
Section 4.16. Designation of Restricted and Unrestricted Subsidiaries.......63
Section 4.17. Limitation on Issuances of Guarantees of Indebtedness.........65
Section 4.18. Payments for Consent..........................................65
Section 4.19. Business Activities...........................................65
Section 4.20. Limitation on Issuances and Sales of Equity Interests in
Restricted Subsidiaries.......................................65
Section 4.21. Additional Note Guarantees....................................66
Article 5
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets.......................66
Section 5.02. Successor Corporation Substituted.............................67
Article 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.............................................68
Section 6.02. Acceleration..................................................70
Section 6.03. Other Remedies................................................70
Section 6.04. Waiver of Past Defaults.......................................70
Section 6.05. Control by Majority...........................................71
Section 6.06. Limitation on Suits...........................................71
Section 6.07. Rights of Holders of Notes to Receive Payment.................72
Section 6.08. Collection Suit by Trustee....................................72
Section 6.09. Trustee May File Proofs of Claim..............................72
Section 6.10. Priorities....................................................72
Section 6.11. Undertaking for Costs.........................................73
Article 7
TRUSTEE
Section 7.01. Duties of Trustee.............................................73
Section 7.02. Rights of Trustee.............................................74
Section 7.03. Individual Rights of Trustee..................................75
Section 7.04. Trustee's Disclaimer..........................................75
Section 7.05. Notice of Defaults............................................75
Section 7.06. Reports by Trustee to the Holders of the Notes................75
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Section 7.07. Compensation and Indemnity....................................76
Section 7.08. Replacement of Trustee........................................76
Section 7.09. Successor Trustee by Merger, Etc..............................77
Section 7.10. Eligibility; Disqualification.................................77
Section 7.11. Preferential Collection of Claims Against Company.............78
Section 7.12. Authorization to Enter Into Intercreditor Agreement...........78
Article 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance......78
Section 8.02. Legal Defeasance and Discharge................................78
Section 8.03. Covenant Defeasance...........................................79
Section 8.04. Conditions to Legal Defeasance or Covenant Defeasance.........79
Section 8.05. Deposited Money and Cash Equivalents to Be Held in Trust;
Other Miscellaneous Provisions................................81
Section 8.06. Repayment to Company..........................................82
Section 8.07. Reinstatement.................................................82
Article 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes...........................82
Section 9.02. With Consent of Holders of Notes..............................83
Section 9.03. Compliance with Trust Indenture Act...........................85
Section 9.04. Revocation and Effect of Consents.............................85
Section 9.05. Notation on or Exchange of Notes..............................85
Section 9.06. Trustee to Sign Amendments, Etc...............................85
Article 10
SUBORDINATION
Section 10.01. Agreement to Subordinate......................................85
Section 10.02. Liquidation; Dissolution; Bankruptcy..........................86
Section 10.03. Default on Designated Senior Debt.............................86
Section 10.04. Acceleration of Securities....................................87
Section 10.05. When Distribution Must Be Paid Over...........................87
Section 10.06. Notice by the Company.........................................87
Section 10.07. Subrogation...................................................88
Section 10.08. Relative Rights...............................................88
Section 10.09. Subordination May Not Be Impaired by the Company..............88
Section 10.10. Distribution or Notice to Representative......................88
Section 10.11. Rights of Trustee and Paying Agent............................88
Section 10.12. Authorization to Effect Subordination.........................89
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Article 11
NOTE GUARANTEES
Section 11.01. Guarantee.....................................................89
Section 11.02. Subordination of Note Guarantee...............................90
Section 11.03. Limitation on Guarantor Liability.............................90
Section 11.04. Execution and Delivery of Note Guarantee......................91
Section 11.05. Guarantors May Consolidate, Etc., on Certain Terms............91
Section 11.06. Releases Following Sale of Assets.............................92
Article 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls..................................93
Section 12.02. Notices.......................................................93
Section 12.03. Communication by Holders of Notes with Other Holders
of Notes......................................................94
Section 12.04. Certificate and Opinion as to Conditions Precedent............94
Section 12.05. Statements Required in Certificate or Opinion.................95
Section 12.06. Rules by Trustee and Agents...................................95
Section 12.07. No Personal Liability of Directors, Officers, Employees
and Stockholders..............................................95
Section 12.08. Governing Law.................................................95
Section 12.09. No Adverse Interpretation of Other Agreements.................95
Section 12.10. Successors....................................................96
Section 12.11. Severability..................................................96
Section 12.12. Counterpart Originals.........................................96
Section 12.13. Table of Contents, Headings, Etc..............................96
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EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF IAI CERTIFICATE
Exhibit E FORM OF NOTE GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL INDENTURE
Schedule I SUBSIDIARY GUARANTORS
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INDENTURE dated as of August 19, 2003 among Ardent Health
Services, Inc., a Delaware corporation (the "Company"), Ardent Health Services
LLC, a Delaware limited liability company (the "Parent"), the Subsidiary
Guarantors listed in Schedule I hereto and U.S. Bank Trust National Association,
a national banking corporation, as trustee (the "Trustee").
The Company, the Parent, the Subsidiary Guarantors and the
Trustee agree as follows for the benefit of each other and for the equal and
ratable benefit of the 10% Senior Subordinated Notes due 2013:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"144A Global Note" means a global note in the form of Exhibit
A hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of, and registered in the name of, the Depositary or
its nominee that shall be issued in a denomination equal to the outstanding
principal amount of the Notes sold in reliance on Rule 144A.
"Acquired Debt" means, with respect to any specified Person:
(a) Indebtedness of any other Person existing at the time such
other Person is merged with or into, or becomes a Subsidiary of, such
specified 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; and
(b) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"Additional Notes" means an unlimited maximum aggregate
principal amount of Notes (other than the Notes issued on the date hereof)
issued under this Indenture in accordance with Sections 2.02 and subject to
Section 4.09 hereof.
"Affiliate" of any specified Person means (a) any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person or (b) any executive officer or
director of 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.
"Agent" means any Registrar, Paying Agent or co-registrar.
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"Applicable Premium" means, with respect to a Note at any date
of redemption, the greater of (a) 1.0% of the principal amount of such Note and
(b) the excess of (i) the present value at such date of redemption of (A) the
redemption price of such Note at August 15, 2008 (such redemption price being
described under Section 3.07) plus (B) all remaining required interest payments
due on such Note through August 15, 2008 (excluding accrued but unpaid interest
to the date of redemption), computed using a discount rate equal to the Treasury
Rate plus 50 basis points, over (ii) the principal amount of such Note.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer or exchange.
"Asset Sale" means:
(a) the sale, lease, conveyance or other disposition of any
assets or rights; provided that the sale, conveyance or other
disposition of all or substantially all of the assets of the Company
and its Restricted Subsidiaries, taken as a whole, shall be governed by
the provisions of Section 4.14 and/or Section 5.01 and not by the
provisions of Section 4.10; and
(b) the issuance of Equity Interests by any of the Company's
Restricted Subsidiaries or the sale by the Company or any Restricted
Subsidiary of Equity Interests in any of its Subsidiaries (other than
directors' qualifying shares and shares to be issued to foreign
nationals under applicable law).
Notwithstanding the preceding, the following items shall be
deemed not to be Asset Sales:
(i) any single transaction or series of related transactions
that involves assets having a fair market value of less than the
greater of (x) $2.0 million and (y) 1.0% of the Consolidated Cash Flow
of the Company on a pro forma basis for the Company's most recently
ended four fiscal quarters for which internal financial statements are
available immediately preceding the date of such transaction or series
of related transactions;
(ii) a transfer, lease, license or other disposition of assets
between or among the Company and its Restricted Subsidiaries;
(iii) an issuance of Equity Interests by a Restricted
Subsidiary of the Company to the Company or to another Restricted
Subsidiary of the Company;
(iv) the sale, license, lease or other disposition of
equipment, inventory, accounts receivable, intellectual property or
other assets in the ordinary course of business;
(v) the sale or other disposition of Cash Equivalents;
(vi) a Restricted Payment or Permitted Investment that is
permitted by Section 4.07;
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(vii) a Hospital Swap;
(viii) any sale or disposition of any property or equipment
that has become damaged, worn out, obsolete or otherwise unsuitable for
use in connection with the business of the Company or its Restricted
Subsidiaries;
(ix) any disposition or leases of substantially unimproved
real property, pursuant to an overall arrangement deemed by the
management of the Company to be fair and reasonable, for the purpose of
building on such real property a medical office building or other
building to contain a healthcare business, or any parking garage or
other structure used in connection with such business;
(x) dispositions of receivables in connection with the
compromise, settlement or collection thereof in the ordinary course of
business or in bankruptcy or similar proceeding and exclusive of
factoring or similar arrangements; and
(xi) any sale or disposition deemed to occur in connection
with creating or granting a Lien.
"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.
"Beneficial Owner" has the meaning assigned to such term in
Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the
beneficial ownership of any particular "person" (as that term is used in Section
13(d)(3) of the Exchange Act), such "person" shall be deemed to have beneficial
ownership of all securities that such "person" has the right to acquire by
conversion or exercise of other securities, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition. The terms "Beneficially Owns" and "Beneficially Owned" shall have a
corresponding meaning.
"Board of Directors" means (a) with respect to a corporation,
the board of directors of the corporation; (b) with respect to a partnership,
the Board of Directors of the general partner of the partnership; and (c) with
respect to any other Person, the board or committee of such Person serving a
similar function.
"Borrowing Base" means, as of any date, an amount equal to the
sum of (a) 85% of the book value of all accounts receivable owned by the Company
and its Restricted Subsidiaries (excluding any accounts receivable from an
Affiliate of the Company or that are more than 90 days past due, and after
deducting (without duplication) the allowance for doubtful accounts attributable
to such accounts receivable) and (b) 75% of the net book value of all inventory
owned by the Company and its Restricted Subsidiaries as of such date, all
calculated
3
on a consolidated basis and in accordance with GAAP. To the extent that
information is not available as to the amount of accounts receivable as of a
specific date, the Company may utilize the most recent available information for
purposes of calculating the Borrowing Base.
"Broker-Dealer" has the meaning set forth in the Registration
Rights Agreement.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the liability in respect of a
capital lease that would at that time be required to be capitalized on a balance
sheet in accordance with GAAP.
"Capital Stock" means (a) in the case of a corporation,
corporate stock, (b) in the case of an association or a business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (c) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited), and (d) 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.
"Captive Insurance Subsidiary" means a Subsidiary established
by the Company or any of its Restricted Subsidiaries for the sole purpose of
insuring, and which only insures, (a) the healthcare business or facilities
owned or operated by the Company or its Restricted Subsidiaries or (b) any
physician employed by or on the medical staff of any such business or facility.
"Cash Equivalents" means (a) United States dollars, (b)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof (provided that the
full faith and credit of the United States is pledged in support thereof) having
maturities of not more than six months from the date of acquisition, (c)
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 domestic commercial bank having capital and surplus in excess of $500.0
million, and a Thomson Bank Watch Rating of "B" or better, (d) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clauses (b) and (c) above entered into with any financial
institution meeting the qualifications specified in clause (c) above, (e)
commercial paper having the highest rating obtainable from Moody's Investors
Service, Inc. or Standard & Poor's Rating Services and in each case maturing
within six months after the date of acquisition, (f) readily marketable direct
obligations issued by any state of the United States or any political
subdivision thereof having one of the two highest ratings obtainable from
Moody's Investors Service, Inc. or Standard & Poor's Rating Services with
maturities of six months or less from the date of acquisition, and (g) money
market funds of which substantially all the assets constitute Cash Equivalents
of the kinds described in clauses (a) through (f) of this definition.
"Certificated Note" means a certificated note in registered
certificated form in the name of the Holder thereof and issued in accordance
with Section 2.06 hereof, in the form of
4
Exhibit A hereto, except that such Note shall not bear the Global Note Legend
and shall not have the "Schedule of Exchanges of Interests in the Global Note"
attached thereto.
"Change of Control" means the occurrence of any of the
following: (a) the direct or indirect sale, 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 properties or assets
of the Company and its Restricted Subsidiaries, taken as a whole, to any
"person" (as that term is used in Section 13(d)(3) of the Exchange Act) other
than the Principals or Related Parties of the Principals, (b) the adoption of a
plan relating to the liquidation or dissolution of the Company, (c) prior to the
first public offering of common stock of the Company or the Parent, (i) the
Principals and their Related Parties cease to be the Beneficial Owner, directly
or indirectly, of a majority in the aggregate of the total voting power of the
Voting Stock of the Company, on a fully diluted basis, whether as a result of
issuance of securities of the Company or the Parent, any merger, consolidation,
liquidation or dissolution of the Company or the Parent, or any direct or
indirect transfer of securities by the Company or the Parent, or otherwise and
(ii) the Principals and their Related Parties do not have the right or ability
by voting power, contract or otherwise to elect or designate for election,
directly or indirectly, a majority of the Board of Directors of the Company, (d)
on and following the first public offering of common stock of the Company or the
Parent (i) any "person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act), other than the Principals and their Related Parties,
becomes the ultimate Beneficial Owner, directly or indirectly, of 35% or more of
the voting power of the Voting Stock of the Company (ii) such "person" or
"group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act)
is or becomes, directly or indirectly, the Beneficial Owner of a greater
percentage of the voting power of the Voting Stock of the Company than the
percentage of which the Principals and their Related Parties are the Beneficial
Owners, directly or indirectly and (iii) the Principals and their Related
Parties do not have the right or ability by voting power, contract or otherwise
to elect or designate for election, directly or indirectly, a majority of the
Board of Directors of the Company, (e) the first day on which a majority of the
members of the Board of Directors of the Company are not Continuing Directors,
or (f) the Company consolidates with, or merges with or into, any Person, or any
Person consolidates with, or merges with or into the Company, in any such event
pursuant to a transaction in which any of the outstanding Voting Stock of the
Company or such other Person is converted into or exchanged for cash, securities
or other property, other than any such transaction where (i) the Voting Stock of
the Company 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) and (ii) immediately after such transaction, (x) no
"person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act), other than the Principals and their Related Parties (A) becomes,
directly or indirectly, the Beneficial Owner of 35% or more of the voting power
of all classes of Voting Stock of such surviving or transferee Person and (B) is
or becomes, directly or indirectly, the Beneficial Owner of a greater percentage
of the voting power of the Voting Stock of such surviving or transferee Person
than the percentage of which the Principals and their Related Parties are the
Beneficial Owners, directly or indirectly or (y) the Principals and their
Related Parties have the right or ability by voting power, contract or otherwise
to elect or designate for election, directly or indirectly, a majority of the
Board of Directors of such surviving or transferee Person.
5
"Clearstream" means Clearstream Banking, societe anonyme.
"Company" means Ardent Health Services, Inc., a Delaware
corporation.
"Consolidated Cash Flow" means, with respect to any specified
Person for any period, the Consolidated Net Income of such Person for such
period plus (a) provision for taxes based on income or profits of such Person
and its Restricted Subsidiaries for such period, to the extent that such
provision for taxes was deducted in computing such Consolidated Net Income; plus
(b) consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether or not paid or accrued and whether or not capitalized
(including, without limitation, amortization of debt issuance costs and original
issue discount, non-cash interest payments, the interest component of any
deferred payment obligations, the interest component of all payments associated
with Capital Lease Obligations, 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 of the effect of all
payments made or received pursuant to Hedging Obligations), to the extent that
any such expense was deducted in computing such Consolidated Net Income; plus
(c) depreciation, amortization (including amortization of intangibles but
excluding amortization of prepaid cash expenses that were paid in a prior
period), non-cash write-offs of goodwill, intangibles and long-lived assets and
other non-cash expenses (including non-cash expenses arising from purchase
accounting but excluding any non-cash expense 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) of such Person and
its Subsidiaries for such period to the extent that such depreciation,
amortization, write-offs and other non-cash expenses were deducted in computing
such Consolidated Net Income; plus (d) without duplication, (i) amortization of
deferred financing costs incurred in connection with the issuance of
Indebtedness permitted to be incurred by this Indenture and (ii) issuance costs
and expenses related to any Qualified Equity Offering, in each case to the
extent that such amortization, costs or expenses were deducted in computing such
Consolidated Net Income; minus (e) non-cash items increasing such Consolidated
Net Income for such period, other than (i) the accrual of revenue consistent
with past practice and (ii) the reversal of accruals in the ordinary course to
the extent that such accrual did not increase consolidated cash flow in a prior
period, in each case, on a consolidated basis and determined in accordance with
GAAP.
Notwithstanding the preceding, the provision for taxes based
on the income or profits of, and the depreciation and amortization and other
non-cash expenses of, a Restricted Subsidiary of the Company shall be added to
Consolidated Net Income to compute Consolidated Cash Flow of the Company only to
the extent that a corresponding amount would be permitted at the date of
determination to be dividended to the Company by such Restricted Subsidiary
without prior governmental approval (that has not been obtained), and without
direct or indirect restriction pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any specified
Person for any period, the aggregate of the Net Income of such Person and its
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that:
6
(a) 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 specified Person or a
Restricted Subsidiary thereof;
(b) 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 Restricted Subsidiary or its
equityholders;
(c) the Net Income of any Person acquired during the specified
period for any period prior to the date of such acquisition shall be
excluded;
(d) the cumulative effect of a change in accounting principles
shall be excluded; and
(e) notwithstanding clause (a) above, the Net Income (but not
loss) of any Unrestricted Subsidiary shall be excluded, whether or not
distributed to the specified Person 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 (a) was a member of such
Board of Directors on the date hereof; or (b) was nominated for election or
elected to such Board of Directors by the Principals or a Related Party of the
Principals or with the approval of a majority of the Continuing Directors who
were members of such Board at the time of such nomination or election.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 12.02 hereof or such other address
as to which the Trustee may give notice to the Company.
"Credit Agreement" means that certain Credit Agreement, dated
as of August 19, 2003, by and among the Company, the guarantors named therein,
Bank One, N.A., as Administrative Agent and the other lenders named therein,
including any related notes, Guarantees, collateral documents, instruments and
agreements executed in connection therewith, and in each case as amended,
modified, restated, renewed, refunded, replaced or refinanced from time to time
(whether with the original agent or agents or lenders or other agents or lenders
and whether pursuant to the original credit agreement or another credit
agreement).
"Credit Facilities" means, one or more debt facilities
(including, without limitation, the Credit Agreement) or commercial paper
facilities, in each case with banks or other institutional lenders providing for
revolving credit loans, term loans, receivables financing (including through the
sale of receivables to such lenders or to special purpose entities formed to
borrow from such lenders against such receivables) or letters of credit, in each
case, as amended,
7
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time.
"Custodian" means the Trustee, as custodian with respect to
the Notes in global form, or any successor entity thereto.
"Default" means any event that is, or with the passage of time
or the giving of notice or both would be, an Event of Default.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Notes, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Designated Senior Debt" means:
(a) any Indebtedness outstanding under the Credit Agreement;
and
(b) after payment in full of all Obligations under the Credit
Agreement, any other Senior Debt permitted under this Indenture the
principal amount of which is $25.0 million or more and that has been
designated by the Company as "Designated Senior Debt."
"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, in each case at the option of the holder thereof), 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 one year
after the date on which the Notes mature; notwithstanding the preceding
sentence, any Capital Stock that would constitute Disqualified Stock solely
because the holders thereof have the right to require the Company to repurchase
such Capital Stock upon the occurrence of a change of control or an asset sale
shall not constitute Disqualified Stock if the terms of such Capital Stock
provide that the Company may not repurchase or redeem any such Capital Stock
pursuant to such provisions unless such repurchase or redemption complies with
Section 4.07. The term "Disqualified Stock" shall also include any options,
warrants or other rights that are convertible into Disqualified Stock or that
are redeemable at the option of the holder, or required to be redeemed, prior to
the date that is one year after the date on which the Notes mature.
"Domestic Subsidiary" means any Subsidiary of the Company
other than a Subsidiary that is a "controlled foreign corporation" under Section
957 of the Internal Revenue Code.
"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.
8
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means the Notes issued in the Exchange Offer
in accordance with Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set
forth in the Registration Rights Agreement.
"Existing Indebtedness" means the aggregate principal amount
of Indebtedness of the Company and its Restricted Subsidiaries (other than
Indebtedness under the Credit Agreement) in existence on the date hereof, until
such amounts are repaid.
"fair market value" means the price that would be paid in an
arm's-length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to buy,
as determined in good faith by the Board of Directors, whose determination shall
be conclusive if evidenced by a Board Resolution.
"Fixed Charges" means, with respect to any specified Person
for any period, the sum, without duplication, of (a) the consolidated interest
expense of such Person and its Restricted Subsidiaries for such period, whether
paid or accrued, including, without limitation, original issue discount (other
than accrual of original issue discount on any Indebtedness arising solely from
the allocation of a portion of the issue price of such Indebtedness to the fair
market value of any equity security attached or associated with such
Indebtedness in accordance with applicable Treasury Regulations), non-cash
interest payments, the interest component of any deferred payment obligations,
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 of the effect of all payments made or
received pursuant to Hedging Obligations; plus (b) the consolidated interest of
such Person and its Restricted Subsidiaries that was capitalized during such
period; plus (c) 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 (d) the product of (i) all
dividends, whether paid or accrued and whether or not in cash, on any series of
Disqualified Stock or preferred stock of such Person or any of its Restricted
Subsidiaries, other than dividends on Equity Interests payable solely in Equity
Interests of the Company (other than Disqualified Stock) or to the Company or a
Restricted Subsidiary of the Company, times (ii) 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.
"Fixed Charge Coverage Ratio" means, with respect to any
specified Person for any period, the ratio of the Consolidated Cash Flow of such
Person for such period to the Fixed Charges of such Person for such period. In
the event that the specified Person or any of its Restricted Subsidiaries
incurs, assumes, Guarantees, repays, repurchases or redeems any
9
Indebtedness or issues, repurchases or redeems preferred stock subsequent to the
commencement of the period for which the Fixed Charge Coverage Ratio is being
calculated and on or prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"),
then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect
to such incurrence, assumption, Guarantee, repayment, repurchase or redemption
of Indebtedness, or such issuance, repurchase or redemption of preferred stock,
and the use of the proceeds therefrom 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:
(a) acquisitions and dispositions of business entities or
property and assets constituting a division or line of business of any
Person that have been made by the specified Person 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 given pro forma effect
as if they had occurred on the first day of the four-quarter reference
period and Consolidated Cash Flow for such reference period shall be
calculated on a pro forma basis in accordance with pro forma
calculations (without giving effect to clause (c) in the proviso to the
definition of Consolidated Net Income) determined in good faith by a
responsible financial or accounting officer of the Company and
delivered to the Trustee;
(b) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP shall be excluded;
(c) the Fixed Charges attributable to discontinued operations,
as determined in accordance with GAAP 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 Subsidiaries
following the Calculation Date; and
(d) consolidated interest expense attributable to interest on
any Indebtedness (whether existing or being incurred) computed on a pro
forma basis and bearing a floating interest rate shall be computed as
if the rate in effect on the Calculation Date (taking into account any
interest rate option, swap, cap or similar agreement applicable to such
Indebtedness if such agreement has a remaining term in excess of 12
months or, if shorter, at least equal to the remaining term of such
Indebtedness) had been the applicable rate for the entire period.
"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, the opinions and
pronouncements of the Public Company Accounting Oversight Board and in the
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.
10
"Global Note Legend" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"Global Notes" means, individually and collectively, each of
the Restricted Global Notes and the Unrestricted Global Notes, issued in
accordance with certain sections of this Indenture.
"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, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
"Guarantors" means the Parent and the Subsidiary Guarantors.
"Hedging Obligations" means, with respect to any specified
Person, the obligations of such Person under (a) interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements and other
agreements or arrangements with respect to exposure to interest rates; (b)
commodity swap agreements, commodity option agreements, forward contracts and
other agreements or arrangements with respect to exposure to commodity prices;
and (c) foreign exchange contracts, currency swap agreements and other
agreements or arrangements with respect to exposure to foreign currency exchange
rates.
"HMO" means any health maintenance organization, managed care
organization, any Person doing business as a health maintenance organization or
managed care organization, or any Person required to qualify or be licensed as a
health maintenance organization or managed care organization under applicable
federal or state law (including, without limitation, HMO Regulations).
"HMO Business" means the business of owning and operating an
HMO or other similar regulated entity or business.
"HMO Regulations" means all laws, regulations, directives and
administrative orders applicable under federal or state law to any HMO or HMO
Business (and any regulations, orders and directives promulgated or issued
pursuant to any of the foregoing) and Subchapter XI of Title 42 of the United
States Code Annotated (and any regulations, orders and directives promulgated or
issued pursuant thereto, including, without limitation, Part 417 of Chapter IV
of 42 Code of Federal Regulations (1990)).
"HMO Subsidiary" means each direct or indirect Subsidiary of
the Company that is capitalized or licensed as an HMO, conducting HMO Business
or providing managed care services.
"Holder" means a Person in whose name a Note is registered.
11
"Hospital Swap" means an exchange of assets and, to the extent
necessary to equalize the value of the assets being exchanged, cash paid or
received by the Company or any of its Restricted Subsidiaries for one or more
hospitals and/or one or more businesses related or ancillary to the business of
the Company, or for 100% of the Capital Stock of any Person owning or operating
one or more hospitals and/or one or more such related businesses, provided that
cash does not exceed 20% of the sum of the amount of the cash and the fair
market value of the Capital Stock or assets received or given by the Company or
such Restricted Subsidiary in the transaction, unless such excess cash is
applied in accordance with the requirements of Section 4.10.
"IAI Global Note" means the global Note substantially in the
form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee that shall be issued in a denomination equal to
the outstanding principal amount of the Notes sold to Institutional Accredited
Investors.
"incur" means, with respect to any Indebtedness, to incur,
create, issue, assume, Guarantee or otherwise become directly or indirectly
liable for or with respect to, or become responsible for, the payment of,
contingently or otherwise, such Indebtedness; provided that any Indebtedness of
a Person existing at the time such Person becomes a Restricted Subsidiary shall
be deemed to be incurred by such Restricted Subsidiary at the time it becomes a
Restricted Subsidiary.
"Indebtedness" means, with respect to any specified Person,
any indebtedness of such Person, whether or not contingent:
(a) in respect of borrowed money;
(b) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in
respect thereof); but excluding obligations with respect to letters of
credit (including trade letters of credit) securing obligations entered
into in the ordinary course of business of such Person to the extent
such letters of credit are not drawn upon or, if drawn upon, to the
extent such drawing is reimbursed no later than the third business day
following receipt by such Person of a demand for reimbursement;
(c) in respect of banker's acceptances;
(d) representing Capital Lease Obligations and Attributable
Debt;
(e) in respect of the balance deferred and unpaid of the
purchase price of any property, which purchase price is due more than
six months after the date of placing such property in service or taking
delivery and title thereto or the completion of such services, except
any such balance that constitutes an accrued expense or trade payable;
(f) representing Hedging Obligations, other than Hedging
Obligations that are entered into for bona fide hedging purposes by the
Company or its Restricted Subsidiaries with respect to interest rates,
commodity prices or foreign currency
12
exchange rates, and not for speculative purposes, and that do not
increase the Indebtedness of the obligor outstanding at any time other
than as a result of fluctuations in interest rates, commodity prices or
foreign currency exchange rates or by reason of fees, indemnities and
compensation payable thereunder; or
(g) representing Disqualified Stock valued at the greater of
its voluntary or involuntary maximum fixed repurchase price plus
accrued dividends.
In addition, the term "Indebtedness" includes (x) 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), provided that the amount of
such Indebtedness shall be the lesser of (i) the fair market value of such asset
at such date of determination and (ii) the amount of such Indebtedness, and (y)
to the extent not otherwise included, the Guarantee by the specified Person of
any indebtedness of any other Person. For purposes hereof, the "maximum fixed
repurchase price" of any Disqualified Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Disqualified Stock as if such Disqualified Stock were purchased on any date on
which Indebtedness shall be required to be determined pursuant to this
Indenture, and if such price is based upon, or measured by, the fair market
value of such Disqualified Stock, such fair market value shall be determined in
good faith by the Board of Directors of the issuer of such Disqualified Stock.
The amount of any Indebtedness outstanding as of any date
shall be the outstanding balance at such date of all unconditional obligations
as described above and, with respect to contingent obligations, the maximum
liability upon the occurrence of the contingency giving rise to the obligation,
and shall be:
(A) the accreted value thereof, in the case of any
Indebtedness issued with original issue discount; 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;
provided that the obligation to repay money borrowed and set aside at the time
of the incurrence of any Indebtedness in order to pre-fund the payment of the
interest on such Indebtedness shall be deemed not to be "Indebtedness" so long
as such money is held to secure the payment of such interest and that
Indebtedness shall not include:
(1) any liability for federal, state, local or other taxes; or
(2) agreements providing for indemnification, adjustment of
purchase price or similar obligations, or Guarantees or letters of
credit, surety bonds or performance bonds securing any obligations of
the Company or any of its Restricted Subsidiaries pursuant to such
agreements, in any case incurred in connection with the disposition of
any business, assets or Restricted Subsidiary (other than Guarantees of
Indebtedness incurred by any Person acquiring all or any portion of
such business, assets or Restricted Subsidiary for the purpose of
financing such acquisition), so long as the principal amount does not
exceed the gross proceeds actually received by the Company or such
Restricted Subsidiary in connection with such disposition.
13
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act, who are not also QIBs.
"Intercreditor and Subordination Agreement" means the
Intercreditor and Subordination Agreement dated as of August 19, 2003 among Bank
One, NA, as Administrative Agent, the Trustee and the Company.
"Investments" means, with respect to any Person, all direct or
indirect investments by such Person in other Persons (including Affiliates) in
the forms of loans or other extensions of credit (including Guarantees or
arrangements, but excluding advances to customers or suppliers in the ordinary
course of business that are, in conformity with GAAP, recorded as accounts
receivable, prepaid expenses or deposits on the balance sheet of the Company or
its Restricted Subsidiaries and endorsements for collection or deposit arising
in the ordinary course of business), advances (excluding commission, travel and
similar advances to officers and employees made consistent with past practices),
capital contributions (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), purchases or other acquisitions 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 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 Investment in
such Restricted Subsidiary not sold or disposed of in an amount determined as
provided in Section 4.07. The acquisition by the Company or any Restricted
Subsidiary of the Company of a Person that holds an Investment in a third Person
shall be deemed to be an Investment by the Company or such Restricted Subsidiary
in such third Person in an amount equal to the fair market value of the
Investment held by the acquired Person in such third Person determined as
provided in the final paragraph of Section 4.07.
"Issue Date" means the date on which $225.0 million in
aggregate principal amount of the Notes were originally issued under this
Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which
commercial banks in The City of New York or at a place of payment are authorized
or required by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest on such
payment shall accrue for the intervening period.
14
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by such
Holders in connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law, including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction.
"Liquidated Damages" means the additional amounts (if any)
payable by the Company in the event of a Registration Default under, and as
defined in, the Registration Rights Agreement.
"Net Income" means, with respect to any specified Person, the
net income (loss) of such Person, determined in accordance with GAAP and before
any reduction in respect of preferred stock dividends, excluding, however, (a)
any gain or loss, together with any related provision for taxes on such gain or
loss, realized in connection with (i) any asset sale outside the ordinary course
of business or (ii) 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 (b) any extraordinary gain or
loss, together with any related provision for taxes on such extraordinary gain
or loss.
"Net Proceeds" means the aggregate cash proceeds, including
payments in respect of deferred payment obligations (to the extent corresponding
to the principal, but not the interest component, thereof) 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
(a) the direct costs relating to such Asset Sale, including, without limitation,
legal, accounting, investment banking and brokerage fees, and sales commissions,
and any relocation expenses incurred as a result thereof, (b) taxes paid or
payable as a result thereof, in each case, after taking into account any
available tax credits or deductions and any tax sharing arrangements, (c)
amounts required to be applied to the repayment of Indebtedness, secured by a
Lien on the asset or assets that were the subject of such Asset Sale, or is
required to be paid as a result of such sale, (d) payments to holders of Equity
Interests in a Restricted Subsidiary (other than such Equity Interests held by
the Company or any Restricted Subsidiary thereof) that has consummated an Asset
Sale, which payments are required to be made as a result of such Asset Sale and
(e) any reserve for adjustment in respect of the sale price of such asset or
assets established in accordance with GAAP.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Guarantee" means the Guarantee by each Guarantor of the
Company's payment obligations under this Indenture and on the Notes, executed
pursuant to this Indenture.
15
"Notes" means the 10% Senior Notes due 2013 of the Company
issued on the date hereof and the Exchange Notes. The Notes and the Additional
Notes, if any, shall be treated as a single class for all purposes under this
Indenture.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages, costs and expenses and other
liabilities payable under the documentation governing any Indebtedness.
"Offering" means the offering of the Notes by the Company.
"Offering Memorandum" means the offering memorandum of the
Company for the Offering, dated August 7, 2003.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf
of the Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer, or the
principal accounting officer of the Company, that meets the requirements of
Section 12.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel that
meets the requirements of Section 12.05 hereof. The counsel may be an employee
of or counsel to the Company.
"Parent" means Ardent Health Services LLC.
"Participant" means, with respect to the Depositary, Euroclear
or Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to The Depository Trust Company,
shall include Euroclear and Clearstream).
"Permitted Business" means any business conducted or proposed
to be conducted (as described in the Offering Memorandum) by the Company and its
Restricted Subsidiaries on the Issue Date and other businesses reasonably
related or ancillary thereto.
"Permitted Investments" means:
(a) any Investment in the Company or in a Restricted
Subsidiary of the Company;
(b) any Investment in Cash Equivalents;
(c) any Investment by the Company or any Restricted Subsidiary
of the Company in a Person, if as a result of such Investment:
(i) such Person becomes a Restricted Subsidiary of
the Company; or
16
(ii) 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;
(d) 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 4.10;
(e) Investments acquired solely in exchange for the issuance
of Equity Interests (other than Disqualified Stock) of the Company;
(f) Hedging Obligations that are incurred for bona fide
hedging purposes by the Company or its Restricted Subsidiaries with
respect to interest rates, commodity prices or foreign currency
exchange rates, and not for speculative purposes, and that do not
increase the Indebtedness of the obligor outstanding at any time other
than as a result of fluctuations in interest rates, commodity prices or
foreign currency exchange rates or by reason of fees, indemnifies and
compensation payable thereunder;
(g) payments subject to reimbursement that are made by the
Company or any of its Restricted Subsidiaries in the ordinary course of
business on behalf of any HMO Subsidiary in connection with the
provision of services to such HMO Subsidiary;
(h) Physician Support Obligations made by the Company or a
Subsidiary thereof;
(i) payments to any Captive Insurance Subsidiary in an amount
not to exceed the minimum amount of capital required under the laws of
the jurisdiction in which such Captive Insurance Subsidiary is formed
and any reasonable general corporate and overhead expenses of such
Captive Insurance Subsidiary;
(j) other Investments in any Person that is not an Affiliate
of the Company (other than a Restricted Subsidiary) having an aggregate
fair market value (measured on the date each such Investment was made
and without giving effect to subsequent changes in value), when taken
together with all other Investments made pursuant to this clause (j)
since the Issue Date, not to exceed the greater of (x) $30.0 million
and (y) 3% of the Total Assets of the Company; and
(k) stock, obligations or securities received in satisfaction
of judgments.
"Permitted Junior Securities" means (a) Equity Interests in
the Company or any Guarantor and (b) debt securities of the Company or any
Guarantor that are subordinated to all Senior Debt and any debt securities
issued in exchange for Senior Debt to the same extent as, or to a greater extent
than, the Notes and the Note Guarantees are subordinated to Senior Debt under
this Indenture.
17
"Permitted Liens" means:
(a) Liens on the assets of the Company and any Guarantor
(other than on any Subsidiary Intercompany Note) securing Senior Debt
that was permitted by the terms of this Indenture to be incurred;
(b) Liens in favor of the Company or any of its Restricted
Subsidiaries;
(c) Liens on property of a Person existing at the time such
Person is merged with or into or consolidated with the Company or any
Restricted Subsidiary of the Company; provided that such Liens were in
existence prior to the contemplation of such merger or consolidation
and do not extend to any assets other than those of the Person merged
into or consolidated with the Company or the Restricted Subsidiary;
(d) Liens on property existing at the time of acquisition
thereof by the Company or any Restricted Subsidiary of the Company,
provided that such Liens were in existence prior to the contemplation
of such acquisition and do not extend to any property other than the
property so acquired by the Company or the Restricted Subsidiary;
(e) Liens existing on the Issue Date; and
(f) 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 $15.0 million at any one time
outstanding.
"Permitted Refinancing Indebtedness" means any Indebtedness of
the Company or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that:
(a) the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the principal
amount (or accreted value, if applicable) of the Indebtedness so
extended, refinanced, renewed, replaced, defeased or refunded (plus all
accrued interest thereon and the amount of any reasonably determined
premium necessary to accomplish such refinancing and such reasonable
expenses incurred in connection therewith);
(b) such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and has a Weighted
Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded;
(c) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to
the Notes or the Note Guarantees, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity
date of, and is subordinated in right of payment to, the Notes on terms
at least as favorable to the Holders of Notes as those contained in the
documentation
18
governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded;
(d) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is pari passu in right of payment to the
Notes or the Note Guarantees, such Permitted Refinancing Indebtedness
is pari passu or subordinated in right of payment to, the Notes; and
(e) such Indebtedness is incurred either by the Company or by
the Restricted Subsidiary who is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.
"Physician Support Obligations" means a loan to or on behalf
of, or a Guarantee of Indebtedness of, (a) a physician or other healthcare
professional providing services to patients in the service area of a hospital or
other healthcare facility operated by the Company or any of its Restricted
Subsidiaries made or given by the Company or any Subsidiary of the Company, or
(b) any independent practice association or other entity majority owned by any
Person described in clause (a) above (other than any Person in which the Company
or any of its Affiliates owns any Equity Interests) in each case:
(i) in the ordinary course of business of the Company or such
Restricted Subsidiary; and
(ii) pursuant to a written agreement having a period not to
exceed five years.
"preferred stock" means, with respect to any Person, any
Capital Stock of such Person that has preferential rights to any other Capital
Stock of such Person with respect to dividends or redemption upon liquidation.
"Principals" means (a) Welsh, Carson, Anderson & Stowe IX,
L.P., (b) FFC Partners II, L.P., (c) BancAmerica Capital Investors I, L.P., (d)
any investment fund under common control or management with any Person in the
foregoing clause (a), (b) or (c), and (e) any general partner or other entity
directly controlling or managing any Person in the foregoing clauses (a) through
(d).
"Private Placement Legend" means the legend set forth in
Section 2.06(g)(i) to be placed on all Notes issued hereunder except where
otherwise permitted by this Indenture.
"Qualified Equity Offering" means (a) an offer and sale of
common stock or common units (other than Disqualified Stock) of the Company or
the Parent pursuant to a registration statement that has been declared effective
by the SEC pursuant to the Securities Act (other than a registration statement
on Form S-8 or otherwise relating to equity securities issuable under any
employee benefit plan of the Company or the Parent) or (b) any private placement
of common stock or common units (other than Disqualified Stock) of the Company
or
19
the Parent; provided that if such Qualified Equity Offering is an offer, sale or
private placement of common stock or common units (other than Disqualified
Stock) of the Parent, 100% of the net cash proceeds therefrom has been
contributed to the common equity capital of the Company.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated August 19, 2003, among the Company, the Guarantors, Banc of
America Securities LLC, UBS Securities LLC, Banc One Capital Markets, Inc. and
Merrill Lynch, Pierce, Fenner & Smith Incorporated.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" means a Regulation S Temporary
Global Note or a Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent Global
Note in the form of Exhibit A hereto bearing the Global Note Legend and the
Private Placement Legend and deposited with or on behalf of and registered in
the name of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount at maturity of the Regulation S Temporary Global
Note upon expiration of the Restricted Period.
"Regulation S Temporary Global Note" means a temporary global
Note in the form of Exhibit A hereto bearing the Global Note Legend, the Private
Placement Legend and the Temporary Regulation S Legend and deposited with or on
behalf of and registered in the name of the Depositary or its nominee, issued in
a denomination equal to the outstanding principal amount at maturity of the
Notes initially sold in reliance on Rule 903 of Regulation S.
"Related Party" means (a) any controlling stockholder,
partner, member 80% (or more) owned Subsidiary, or immediate family member (in
the case of an individual) of any Principal or (b) any trust, corporation,
partnership or other entity, the beneficiaries, stockholders, partners, owners
or Persons beneficially holding an 80% or more controlling interest of which
consist of any one or more Principals and/or such other Persons referred to in
the immediately preceding clause (a).
"Replacement Assets" means (a) non-current tangible assets
that shall be used or useful in a Permitted Business or (b) substantially all
the assets of a Permitted Business or a majority of the Voting Stock of any
Person engaged in a Permitted Business that shall become on the date of
acquisition thereof a Restricted Subsidiary of the Company.
"Representative" means the Trustee, agent or representative
for any Senior Debt.
"Responsible Officer" when used with respect to the Trustee,
means any officer within the Corporate Trust Administration of the Trustee (or
any successor group of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and
20
familiarity with the particular subject and who shall have direct responsibility
for the administration of this Indenture.
"Restricted Certificated Note" means a Certificated Note
bearing the Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the
Private Placement Legend.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Period" means the 40-day restricted period as
defined in Regulation S.
"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 903" means Rule 903 promulgated under the Securities
Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"Sale and Leaseback Transaction" means, with respect to any
Person, any transaction involving any of the assets or properties of such Person
whether now owned or hereafter acquired, whereby such Person sells or transfers
such assets or properties and then or thereafter leases such assets or
properties or any part thereof or any other assets or properties which such
Person intends to use for substantially the same purpose or purposes as the
assets or properties sold or transferred.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means:
(a) all Indebtedness of the Company or any Guarantor
outstanding under Credit Facilities (including the Credit Agreement)
and all Hedging Obligations with respect thereto;
(b) any other Indebtedness of the Company or any Guarantor
permitted to be incurred under the terms of this Indenture, unless the
instrument under which such Indebtedness is incurred expressly provides
that it is on a parity with or subordinated in right of payment to the
Notes or any Note Guarantee; and
(c) all Obligations with respect to the items listed in the
preceding clauses (a) and (b).
21
Notwithstanding anything to the contrary in the preceding,
Senior Debt shall not include:
(i) any liability for federal, state, local or other taxes
owed or owing by the Company or any Guarantor;
(ii) any Indebtedness of the Company or any Guarantor to any
of their Subsidiaries or other Affiliates;
(iii) any trade payables;
(iv) the portion of any Indebtedness that is incurred in
violation of this Indenture;
(v) any Indebtedness of the Company or any Guarantor that,
when incurred, was without recourse to the Company or such Guarantor;
(vi) any repurchase, redemption or other obligation in respect
of Disqualified Stock; or
(vii) any Indebtedness owed to any employee of the Company or
any of its Subsidiaries.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would
constitute a "significant subsidiary" within the meaning of Article 1 of
Regulation S-X of the Securities Act; provided, however, that for purposes of
this Indenture and the Notes, 5% shall be substituted for 10% in each place it
appears in such definition.
"Stated Maturity" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which such
payment of interest or principal was scheduled to be paid in the original
documentation governing such Indebtedness, 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.
"Subsidiary" means, with respect to any specified Person: (a)
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, trustees or other voting members of the governing body 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); (b)
any corporation, association or other business entity of which (i) 50% or more
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, trustees or other voting members of the governing body thereof, and
(ii) 50% or more of the Capital Stock 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);
22
and (c) any partnership (i) the sole general partner or the managing general
partner of which is such Person or a Subsidiary of such Person or (ii) the only
general partners of which are such Person or one or more Subsidiaries of such
Person (or any combination thereof).
"Subsidiary Guarantors" means:
(a) each direct or indirect Domestic Subsidiary of the Company
other than (i) any HMO Subsidiary to the extent it is prohibited by
applicable HMO Regulations from providing a full and unconditional
Guarantee of the Notes, and (ii) any Domestic Subsidiary that is not a
Wholly Owned Restricted Subsidiary and has not provided a Guarantee in
respect of any Indebtedness of the Company or any Guarantor; and
(b) any other subsidiary that executes a Note Guarantee in
accordance with this Indenture;
and their respective successors and assigns until released from their
obligations under their Note Guarantees and this Indenture in accordance with
the terms of this Indenture.
"Subsidiary Intercompany Note" means any Indebtedness owed to
and held by the Company or any Restricted Subsidiary thereof on which the
obligor is a Subsidiary of the Company that is not a Guarantor, including any
such Indebtedness secured by a Lien on any assets of such obligor.
"Temporary Regulation S Legend" means the legend set forth in
Section 2.06(h), which is required to be placed on the Regulation S Temporary
Global Note.
"TIA" means the Trust Indenture Act of 1939, as amended (15
U.S.C. ss.ss. 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA.
"Total Assets" of any Person means the total consolidated
assets of such Person and its Restricted Subsidiaries as shown on the most
recent balance sheet of such Person prepared in conformity with GAAP.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15 (519) which has become publicly available at least two Business Days prior
to the date fixed for prepayment (or, if such Statistical Release is no longer
published, any publicly available source for similar market data)) most nearly
equal to the then remaining term of the Notes to August 15, 2008; provided,
however, that if the then remaining term of the Notes to August 15, 2008 is not
equal to the constant maturity of a United States Treasury security for which a
weekly average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the then remaining term of the Notes to August 15, 2008 is
less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
23
"Treasury Regulations" means the Treasury regulations
promulgated under the Internal Revenue Code of 1986, as amended from time to
time (including any successor law).
"Trustee" means the party named as such in the preamble to
this Indenture until a successor replaces it in accordance with this Indenture
and thereafter means the successor serving hereunder.
"Unrestricted Certificated Note" means one or more
Certificated Notes that do not bear and are not required to bear the Private
Placement Legend.
"Unrestricted Global Note" means a permanent global Note in
the form of Exhibit A attached hereto that bears the Global Note Legend and that
has the "Schedule of Exchanges of Interests in the Global Note" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing a series of Notes that do not bear the Private
Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company
that is designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a Board Resolution in compliance with Section 4.16 and
any Subsidiary of such Subsidiary.
"U.S. Person" means a U.S. person as defined in Rule 902(o)
under the Securities Act.
"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: (a) the sum
of the products obtained by multiplying (i) 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 (ii) the
number of years (calculated to the nearest one-twelfth) that shall elapse
between such date and the making of such payment; by (b) the then outstanding
principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any specified Person
means a Restricted Subsidiary of such Person all of the outstanding Capital
Stock or other ownership interests of which (other than directors' qualifying
shares or Investments by foreign nationals mandated by applicable law) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person.
Section 1.02. Other Definitions.
DEFINED IN
TERM SECTION
---- ---------
"Affiliate Transaction"............................. 4.11
"Asset Sale Offer".................................. 4.10
"Authentication Order".............................. 2.02
"Change of Control Offer"........................... 4.14
24
DEFINED IN
TERM SECTION
---- ---------
"Change of Control Payment"......................... 4.14
"Change of Control Payment Date".................... 4.14
"Covenant Defeasance"............................... 8.03
"DTC"............................................... 2.03
"Event of Default".................................. 6.01
"Excess Proceeds"................................... 4.10
"incur"............................................. 4.09
"Legal Defeasance".................................. 8.02
"Offer Amount"...................................... 3.09
"Offer Period"...................................... 3.09
"Paying Agent"...................................... 2.03
"Payment Blockage Notice"........................... 10.03
"Payment Blockage Period"........................... 10.03
"Permitted Debt".................................... 4.09
"Purchase Date"..................................... 3.09
"Registrar"......................................... 2.03
"Repurchase Offer".................................. 3.09
"Restricted Payments"............................... 4.07
Section 1.03. Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Notes means the Company and any successor
obligor upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction. Unless the context
otherwise requires:
(a) a term has the meaning assigned to it;
25
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the
plural include the singular;
(e) provisions apply to successive events and transactions;
and
(f) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement of successor sections or
rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating. (a) General. The Notes and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A hereto. The Notes may have notations, legends or endorsements required
by law, stock exchange rule or usage. Each Note shall be dated the date of its
authentication. The Notes shall be issued in registered, global form and shall
be in denominations of $1,000 and integral multiples of $1,000 in excess
thereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company, the Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Note conflicts with this Indenture,
this Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the Global
Note Legend thereon and the "Schedule of Exchanges of Interests in the Global
Note" attached thereto). Notes issued in definitive form shall be substantially
in the form of Exhibit A attached hereto (but without the Global Note Legend
thereon and without the "Schedule of Exchanges of Interests in the Global Note"
attached thereto). Each Global Note shall represent such of the outstanding
Notes as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of outstanding Notes from time to time
endorsed thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06 hereof.
(c) Temporary Global Notes. Notes offered and sold in reliance
on Regulation S shall be issued initially in the form of the Regulation S
Temporary Global Note, which shall be
26
deposited on behalf of the purchasers of the Notes represented thereby with the
Trustee, as custodian for The Depository Trust Company in New York, New York,
and registered in the name of the Depositary or the nominee of the Depositary
for the accounts of designated agents holding on behalf of Euroclear or
Clearstream, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The Restricted Period shall be terminated upon the receipt
by the Trustee of (i) a written certificate from Euroclear and Clearstream
certifying that they have received certification of non-United States beneficial
ownership of 100% of the aggregate principal amount at maturity of the
Regulation S Temporary Global Note (except to the extent of any Beneficial
Owners thereof who acquired an interest therein during the Restricted Period
pursuant to another exemption from registration under the Securities Act and who
shall take delivery of a beneficial ownership interest in a 144A Global Note
bearing a Private Placement Legend, all as contemplated by Section 2.06(b)(ii)
hereof), and (ii) an Officers' Certificate from the Company. Following the
termination of the Restricted Period, beneficial interests in the Regulation S
Temporary Global Note shall be exchanged for beneficial interests in Regulation
S Permanent Global Notes pursuant to the Applicable Procedures. Simultaneously
with the authentication of Regulation S Permanent Global Notes, the Trustee
shall cancel the Regulation S Temporary Global Note. The aggregate principal
amount of the Regulation S Temporary Global Note and the Regulation S Permanent
Global Notes may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depositary or its nominee, as the case may
be, in connection with transfers of interest as hereinafter provided.
(d) Euroclear and Clearstream Procedures Applicable. The
provisions of the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of Euroclear" and the "General Terms and Conditions of
Clearstream Banking" and "Customer Handbook" of Clearstream shall be applicable
to transfers of beneficial interests in the Regulation S Global Notes that are
held by Participants through Euroclear or Clearstream.
Section 2.02. Execution and Authentication. Two Officers shall
sign the Notes for the Company by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is unlimited.
The Trustee shall, upon a written order of the Company signed
by one Officer (an "Authentication Order"), authenticate Notes for original
issue up to the aggregate principal amount authorized pursuant to this
Indenture.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may
27
do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as an Agent to deal with Holders or an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent. The Company shall
maintain an office or agency where Notes may be presented for registration of
transfer or for exchange ("Registrar") and an office or agency where Notes may
be presented for payment ("Paying Agent"). The Registrar shall keep a register
of the Notes and of their transfer and exchange. The Company may appoint one or
more co-registrars and one or more additional paying agents. The term
"Registrar" includes any co-registrar and the term "Paying Agent" includes any
additional paying agent. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company shall promptly notify the Trustee in
writing of the name and address of any Agent not a party to this Indenture. If
the Company fails to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may
act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Custodian with respect to the Global
Notes.
Section 2.04. Paying Agent to Hold Money in Trust. The Company
shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent shall hold in trust for the benefit of Holders or the Trustee
all money held by the Paying Agent for the payment of principal, premium or
Liquidated Damages, if any, or interest on the Notes, and shall notify the
Trustee of any default by the Company in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary thereof) shall have no
further liability for the money. If the Company or a Subsidiary thereof acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy
or reorganization proceedings relating to the Company, the Trustee shall serve
as Paying Agent for the Notes.
Section 2.05. Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of all Holders and shall otherwise comply with TIA
ss. 312(a). If the Trustee is not the Registrar, the Company shall furnish to
the Trustee at least seven Business Days before each interest payment date and
at such other times as the Trustee may request in writing, a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of the Holders of Notes and the Company shall otherwise comply with
TIA ss. 312(a).
Section 2.06. Transfer and Exchange. (a) Transfer and Exchange
of Global Notes. A Global Note may not be transferred as a whole except by the
Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the
28
Depositary, by the Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary. All Global Notes shall be exchanged by the
Company for Certificated Notes if (i) the Company delivers to the Trustee notice
from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 120 days after the date of such notice from the Depositary or
(ii) the Company in its sole discretion determines that the Global Notes (in
whole but not in part) should be exchanged for Certificated Notes and delivers a
written notice to such effect to the Trustee; provided that in no event shall
the Regulation S Temporary Global Note be exchanged by the Company for
Certificated Notes prior to (x) the expiration of the Restricted Period and (y)
the receipt by the Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act or (iii) there shall have occurred and
be continuing a Default or Event of Default with respect to the Notes. Upon the
occurrence of any of the preceding events in (i), (ii) or (iii) above,
Certificated Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be exchanged or replaced, in whole
or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Note. A Global Note may not be exchanged for another Note other than as provided
in this Section 2.06(a), however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the
Global Notes. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also shall require compliance with
either subparagraph (i) or (ii) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement Legend;
provided, however, that prior to the expiration of the Restricted
Period, transfers of beneficial interests in the Regulation S Temporary
Global Note may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Beneficial
interests in any Unrestricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests
in Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(i) above,
the transferor of such beneficial interest shall deliver to the
Registrar either (A) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the
29
Depositary to credit or cause to be credited a beneficial interest in
the Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (B) instructions given in accordance with
the Applicable Procedures containing information regarding the
Participant account to be credited with such increase or (C) a written
order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Certificated Note in an amount equal
to the beneficial interest to be transferred or exchanged and (D)
instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Certificated Note
shall be registered to effect the transfer or exchange referred to in
(A) above; provided that in no event shall Certificated Notes be issued
upon the transfer or exchange of beneficial interests in the Regulation
S Temporary Global Note prior to (x) the expiration of the Restricted
Period and (y) the receipt by the Registrar of any certificates
required pursuant to Rule 903 under the Securities Act. Upon
consummation of an Exchange Offer by the Company in accordance with
Section 2.06(f) hereof, the requirements of this Section 2.06(b)(ii)
shall be deemed to have been satisfied upon receipt by the Registrar of
the instructions contained in the Letter of Transmittal delivered by
the Holder of such beneficial interests in the Restricted Global Notes.
Upon satisfaction of all of the requirements for transfer or exchange
of beneficial interests in Global Notes contained in this Indenture and
the Notes or otherwise applicable under the Securities Act, the Trustee
shall adjust the principal amount of the relevant Global Note(s)
pursuant to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:
(A) if the transferee shall take delivery in the form of
a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof; and
(B) if the transferee shall take delivery in the form
of a beneficial interest in the Regulation S Global Note, then
the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2)
thereof.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee,
30
in the case of a transfer, certifies in the applicable Letter
of Transmittal that it is not (1) a Broker-Dealer, (2) a
Person participating in the distribution of the Exchange Notes
or (3) a Person who is an affiliate (as defined in Rule 144)
of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such
beneficial interest for a beneficial interest in an
Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(2) if the Holder of such beneficial interest in a
Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such Holder
in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B)
or (D) above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for
Certificated Notes.
(i) Beneficial Interests in Restricted Global Notes to
Restricted Certificated Notes. If any Holder of a beneficial interest in a
Restricted Global Note proposes to exchange
31
such beneficial interest for a Restricted Certificated Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Restricted Certificated Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted Certificated Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item (2)(a)
thereof;
(B) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications
in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such beneficial interest is being transferred pursuant
to an exemption from the registration requirements of the Securities
Act in accordance with Rule 144 under the Securities Act, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed
in subparagraphs (B) through (D) above, a certificate to the effect set
forth in Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (3)(b)
thereof; or
(G) if such beneficial interest is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Certificated Note in the appropriate
principal amount. Any Certificated Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Certificated Notes to the
Persons in whose names such Notes are so registered. Any Certificated Note
issued in exchange for a beneficial interest in a Restricted Global Note
pursuant to this Section 2.06(c)(i) shall bear
32
the Private Placement Legend and shall be subject to all restrictions on
transfer contained therein.
(ii) Beneficial Interests in Regulation S Temporary Global
Note to Definitive Notes. Notwithstanding Sections 2.06(c)(i)(A) and (C), a
beneficial interest in the Regulation S Temporary Global Note may not be
exchanged for a Certificated Note or transferred to a Person who takes delivery
thereof in the form of a Certificated Note prior to (x) the expiration of the
Restricted Period and (y) the receipt by the Registrar of any certificates
required pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act, except in
the case of a transfer pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Notes to
Unrestricted Certificated Notes. A Holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an Unrestricted
Certificated Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Certificated Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and
the Holder of such beneficial interest, in the case of an exchange, or
the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Certificated Note that does not bear the
Private Placement Legend, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in
item (1)(b) thereof; or
(2) if the Holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a Certificated Note that does not bear the Private
Placement Legend, a certificate from such Holder in the form
of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the
33
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iv) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Certificated Notes. If any Holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for a
Certificated Note or to transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Certificated Note, then, upon satisfaction of
the conditions set forth in Section 2.06(b)(ii) hereof, the Trustee shall cause
the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Company shall execute
and the Trustee shall authenticate and deliver to the Person designated in the
instructions a Certificated Note in the appropriate principal amount. Any
Certificated Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iv) shall be registered in such name or names and in such
authorized denomination or denominations as the Holder of such beneficial
interest shall instruct the Registrar through instructions from the Depositary
and the Participant or Indirect Participant. The Trustee shall deliver such
Certificated Notes to the Persons in whose names such Notes are so registered.
Any Certificated Note issued in exchange for a beneficial interest pursuant to
this Section 2.06(c)(iv) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Certificated Notes for Beneficial
Interests.
(i) Restricted Certificated Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Certificated Note
proposes to exchange such Note for a beneficial interest in a Restricted Global
Note or to transfer such Restricted Certificated Note to a Person who takes
delivery thereof in the form of a beneficial interest in a Restricted Global
Note, then, upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Certificated Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item (2)(b) thereof;
(B) if such Restricted Certificated Note is being transferred
to a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such Restricted Certificated Note is being transferred
to a Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such Restricted Certificated Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such Restricted Certificated Note is being transferred
to an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other than
those listed in subparagraphs (B) through (D) above, a
34
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3) thereof, if applicable;
(F) if such Restricted Certificated Note is being transferred
to the Company or any of its Subsidiaries, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(G) if such Restricted Certificated Note is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Certificated Note, increase or cause to
be increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Note, in the case of clause (B) above, the
144A Global Note, in the case of clause (C) above, the Regulation S Global Note,
and in all other cases, the IAI Global Note.
(ii) Restricted Certificated Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Certificated Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Restricted Certificated Note to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note only
if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and
the Holder, in the case of an exchange, or the transferee, in the case
of a transfer, certifies in the applicable Letter of Transmittal that
it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Certificated Notes proposes
to exchange such Notes for a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in
item (1)(c) thereof; or
(2) if the Holder of such Certificated Notes proposes
to transfer such Notes to a Person who shall take delivery
thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit B hereto, including the certifications in
item (4) thereof;
35
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this Section
2.06(d)(ii), the Trustee shall cancel the Certificated Notes and increase or
cause to be increased the aggregate principal amount of the Unrestricted Global
Note.
(iii) Unrestricted Certificated Notes to Beneficial Interests
in Unrestricted Global Notes. A Holder of an Unrestricted Certificated Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Certificated Notes to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note at any time. Upon
receipt of a request for such an exchange or transfer, the Trustee shall cancel
the applicable Unrestricted Certificated Note and increase or cause to be
increased the aggregate principal amount of one of the Unrestricted Global
Notes.
If any such exchange or transfer from a Certificated Note to a
beneficial interest is effected pursuant to subparagraph (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Certificated Notes so transferred.
(e) Transfer and Exchange of Certificated Notes for
Certificated Notes. Upon request by a Holder of Certificated Notes and such
Holder's compliance with this Section 2.06(e), the Registrar shall register the
transfer or exchange of Certificated Notes. Prior to such registration of
transfer or exchange, the requesting Holder shall present or surrender to the
Registrar the Certificated Notes duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly executed by
such Holder or by his attorney, duly authorized in writing. In addition, the
requesting Holder shall provide any additional certifications, documents and
information, as applicable, required pursuant to the following clauses of this
Section 2.06(e).
(i) Restricted Certificated Notes to Restricted Certificated
Notes. Any Restricted Certificated Note may be transferred to and
registered in the name of Persons who take delivery thereof in the form
of a Restricted Certificated Note if the Registrar receives the
following:
(A) if the transfer shall be made pursuant to Rule
144A under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
36
(B) if the transfer shall be made pursuant to Rule
903 or Rule 904, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transfer shall be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(ii) Restricted Certificated Notes to Unrestricted
Certificated Notes. Any Restricted Certificated Note may be exchanged
by the Holder thereof for an Unrestricted Certificated Note or
transferred to a Person or Persons who take delivery thereof in the
form of an Unrestricted Certificated Note if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution
of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted
Certificated Notes proposes to exchange such Notes
for an Unrestricted Certificated Note, a certificate
from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(d) thereof;
or
(2) if the Holder of such Restricted
Certificated Notes proposes to transfer such Notes to
a Person who shall take delivery thereof in the form
of an Unrestricted Certificated Note, a certificate
from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
37
(iii) Unrestricted Certificated Notes to Unrestricted
Certificated Notes. A Holder of Unrestricted Certificated Notes may
transfer such Notes to a Person who takes delivery thereof in the form
of an Unrestricted Certificated Note. Upon receipt of a request to
register such a transfer, the Registrar shall register the Unrestricted
Certificated Notes pursuant to the instructions from the Holder
thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer
in accordance with the Registration Rights Agreement, the Company shall issue
and, upon receipt of an Authentication Order in accordance with Section 2.02,
the Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not
Broker-Dealers, (y) they are not participating in a distribution of the Exchange
Notes and (z) they are not affiliates (as defined in Rule 144) of the Company,
and accepted for exchange in the Exchange Offer and (ii) Certificated Notes in
an aggregate principal amount equal to the principal amount of the Restricted
Certificated Notes accepted for exchange in the Exchange Offer. Concurrently
with the issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Certificated Notes so accepted Certificated
Notes in the appropriate principal amount. Any Notes that remain outstanding
after the consummation of the Exchange Offer, and Exchange Notes issued in
connection with the Exchange Offer, shall be treated as a single class of
securities under this Indenture.
(g) Legends. The following legends shall appear on the face of
all Global Notes and Certificated Notes issued under this Indenture unless
specifically stated otherwise in this Indenture.
(i) Private Placement Legend. (A) Except as permitted by
subparagraph (B) below, each Global Note and each Certificated Note
(and all Notes issued in exchange therefor or substitution thereof)
shall bear the legend in substantially the following form:
"THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
NOTE NOR THE GUARANTEES ENDORSED HEREON NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE
GUARANTEES ENDORSED HEREON BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE
DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY
38
WAS THE OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON
(OR ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED
HEREON OF THIS NOTE) (THE "RESALE RESTRICTION TERMINATION
DATE") ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) PRIOR TO THE END
OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT
TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT
A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE
IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRANSFER
AGENT. THIS LEGEND SHALL BE REMOVED UPON THE REQUEST OF A
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE."
(B) Notwithstanding the foregoing, any Global Note or
Certificated Note issued pursuant to subparagraph (b)(iv), (c)(iii),
(c)(iv), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section
2.06 (and all Notes issued in exchange therefor or substitution
thereof) shall not bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend
in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE
39
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a)
OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO
THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY."
(h) Regulation S Temporary Global Note Legend. The Regulation
S Temporary Global Note shall bear a legend in substantially the following form:
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE
FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS
DEFINED HEREIN).
(i) Cancellation and/or Adjustment of Global Notes. At such
time as all beneficial interests in a particular Global Note have been exchanged
for Certificated Notes or a particular Global Note has been redeemed,
repurchased or canceled in whole and not in part, each such Global Note shall be
returned to or retained and canceled by the Trustee in accordance with Section
2.11 hereof. At any time prior to such cancellation, if any beneficial interest
in a Global Note is exchanged for or transferred to a Person who shall take
delivery thereof in the form of a beneficial interest in another Global Note or
for Certificated Notes, the principal amount of Notes represented by such Global
Note shall be reduced accordingly and an endorsement shall be made on such
Global Note by the Trustee or by the Depositary at the direction of the Trustee
to reflect such reduction; and if the beneficial interest is being exchanged for
or transferred to a Person who shall take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.
(j) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Global Notes and Certificated Notes
upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Certificated Note for
any registration of transfer or exchange, but the Company may require payment of
a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections 2.10,
3.06, 3.09, 4.10, 4.14 and 9.05 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
40
(iv) All Global Notes and Certificated Notes issued upon any
registration of transfer or exchange of Global Notes or Certificated Notes shall
be the valid and legally binding obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Global
Notes or Certificated Notes surrendered upon such registration of transfer or
exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period beginning at
the opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close of business on the
day of selection, (B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part or (C) to register the transfer of or to
exchange a Note between a record date and the next succeeding interest payment
date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on such
Notes and for all other purposes, and none of the Trustee, any Agent or the
Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Certificated Notes in accordance with Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this Section 2.06
to effect a registration of transfer or exchange may be submitted by facsimile
with the original to follow by first class mail.
Section 2.07. Replacement Notes. If any mutilated Note is
surrendered to the Trustee or the Company and the Trustee receives evidence to
its satisfaction of the destruction, loss or theft of any Note, the Company
shall issue and the Trustee, upon receipt of an Authentication Order, shall
authenticate a replacement Note if the Trustee's requirements are met. If
required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Note is replaced. The Company may
charge for its expenses in replacing a Note.
Every replacement Note issued pursuant to this Section 2.07 is
an additional obligation of the Company and shall be entitled to all of the
benefits of this Indenture equally and proportionately with all other Notes duly
issued hereunder.
Section 2.08. Outstanding Notes. The Notes outstanding at any
time are all the Notes authenticated by the Trustee except for those canceled by
it, those delivered to it for cancellation, those reductions in the interest in
a Global Note effected by the Trustee in accordance with this Indenture, and
those described in this Section as not outstanding. Except as set forth in
Section 2.09 hereof, a Note does not cease to be outstanding because the Company
or an Affiliate of the Company holds the Note; however, Notes held by the
Company or a
41
Subsidiary of the Company shall not be deemed to be outstanding for purposes of
Section 3.07(b) hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any of the foregoing) holds, on a redemption date or maturity
date, money sufficient to pay Notes payable on that date, then on and after that
date such Notes shall be deemed to be no longer outstanding and shall cease to
accrue interest.
Section 2.09. Treasury Notes. In determining whether the
Holders of the required principal amount of the Notes have concurred in any
direction, waiver or consent, Notes owned by the Company, any direct or indirect
Subsidiary of the Company or any Principals or Related Party shall be considered
as though not outstanding, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, waiver or
consent, only Notes that the Trustee knows are so owned shall be so disregarded.
Notes so owned which have been pledged in good faith shall not be disregarded if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
to deliver any such direction, waiver or consent with respect to the Notes and
that the pledgee is not the Company or any obligor upon the Notes or any
Affiliate of the Company or of such other obligor.
Section 2.10. Temporary Notes. Until certificates representing
Notes are ready for delivery, the Company may prepare and the Trustee, upon
receipt of an Authentication Order, shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of certificated Notes but may
have variations that the Company considers appropriate for temporary Notes and
as shall be reasonably acceptable to the Trustee. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate definitive Notes in
exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
Section 2.11. Cancellation. The Company at any time may
deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent
shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel all
Notes surrendered for registration of transfer, exchange, payment, replacement
or cancellation and shall dispose of such canceled Notes in its customary
manner. Subject to Section 2.07, the Company may not issue new Notes to replace
Notes that it has paid or that have been delivered to the Trustee for
cancellation.
Section 2.12. Defaulted Interest. If the Company defaults in a
payment of interest on the Notes, it shall pay the defaulted interest in any
lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent
42
special record date, in each case at the rate provided in the Notes and in
Section 4.01 hereof. The Company shall notify the Trustee in writing of the
amount of defaulted interest proposed to be paid on each Note and the date of
the proposed payment. The Company shall fix or cause to be fixed each such
special record date and payment date, provided that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) shall mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
Section 2.13. CUSIP Numbers. The Company in issuing the Notes
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company shall
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee. If the Company elects to
redeem Notes pursuant to Section 3.07 hereof, it shall furnish to the Trustee,
at least 30 days but not more than 60 days before a redemption date (unless a
shorter notice period shall be satisfactory to the Trustee in its reasonable
discretion), an Officers' Certificate setting forth (a) the clause of this
Indenture pursuant to which the redemption shall occur, (b) the redemption date,
(c) the principal amount of Notes to be redeemed and (d) the redemption price.
Section 3.02. Selection of Notes to Be Redeemed. If less than
all of the Notes are to be redeemed at any time, selection of Notes for
redemption shall be made by the Trustee in compliance with the requirements of
the principal national securities exchange, if any, on which the Notes are
listed, or, if the Notes are not so listed, on a pro rata basis, by lot or by
such method as the Trustee shall deem fair and appropriate. In the event of
partial redemption by lot, the particular Notes to be redeemed shall be
selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption date by the Trustee (unless a shorter time period
shall be satisfactory to the Trustee) from the outstanding Notes not previously
called for redemption.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not a multiple
of $1,000, shall
43
be redeemed. Except as provided in the preceding sentence, the provisions of
this Indenture that apply to Notes called for redemption also apply to portions
of Notes called for redemption.
Section 3.03. Notice of Redemption. Subject to Section 3.09
hereof, at least 30 days but not more than 60 days before a redemption date, the
Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered
address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion of the original Note
shall be issued in the name of the Holder thereof upon cancellation of
the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price and become due on the
date fixed for redemption;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph. The notice, if mailed in the manner provided herein
shall be presumed to have been given, whether or not the Holder receives such
notice.
Section 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption become irrevocably due and payable on the redemption date at the
redemption price. A notice of redemption may not be conditional.
Section 3.05. Deposit of Redemption Price. On or prior to the
redemption date, the Company shall deposit with the Trustee or with the Paying
Agent money sufficient to pay the
44
redemption price of and accrued and unpaid interest and Liquidated Damages, if
any, on all Notes to be redeemed on that date. The Trustee or the Paying Agent
shall promptly return to the Company any money deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued and unpaid interest on, all Notes to be
redeemed.
If the Company complies with the preceding paragraph of this
Section 3.05, on and after the redemption date, interest shall cease to accrue
on the Notes or the portions of Notes called for redemption. If a Note is
redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid to the
Person in whose name such Note was registered at the close of business on such
record date. If any Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, interest shall accrue on the unpaid principal, from the
redemption date until such principal is paid, and to the extent permitted by
applicable law on any interest accrued through the date of redemption but not
paid on such unpaid principal, in each case at the rate provided in the Notes
and in Section 4.01 hereof.
Section 3.06. Notes Redeemed in Part. Upon surrender of a Note
that is redeemed in part, the Company shall issue and, upon the Company's
written request, the Trustee shall authenticate for the Holder at the expense of
the Company a new Note equal in principal amount to the unredeemed portion of
the Note surrendered.
Section 3.07. Optional Redemption. (a) Except as set forth in
clauses (b) and (c) of this Section 3.07, the Notes shall not be redeemable at
the Company's option prior to August 15, 2008. Thereafter, the Company may
redeem all or a part of the Notes, from time to time, upon not less than 30 nor
more than 60 days' notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest and
Liquidated Damages, if any, to the applicable redemption date, if redeemed
during the twelve-month period beginning on August 15 of the years indicated
below:
YEAR PERCENTAGE
---- ----------
2008....................................... 105.000%
2009....................................... 103.333%
2010....................................... 101.667%
2011 and thereafter........................ 100.000%
(b) At any time prior to August 15, 2006, the Company may at
its option on any one or more occasions redeem up to 35% of the aggregate
principal amount of Notes issued under this Indenture (including Additional
Notes, if any) at a redemption price of 110.000% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the redemption date (subject to the right of the Holders of record on
the relevant record date to receive interest due on the relevant interest
payment date), with the net cash proceeds of one or more Qualified Equity
Offerings; provided that (i) at least 65% of the aggregate principal amount of
Notes issued under this Indenture (including Additional Notes, if any) remains
outstanding immediately after the occurrence of such redemption (excluding Notes
45
held by the Parent, the Company or their Subsidiaries); and (ii) the redemption
must occur within 90 days of the date of the closing of such Qualified Equity
Offering.
In addition, at any time prior to August 15, 2008, the Company
may redeem all or part of the Notes upon not less than 30 days' nor more than 60
days' notice at a redemption price equal to the sum of (i) 100% of the principal
amount thereof, plus (ii) the Applicable Premium, plus (iii) accrued and unpaid
interest, if any, to the applicable date of redemption.
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to Section 3.01 through 3.06 hereof.
Section 3.08. Mandatory Redemption. The Company is not
required to make mandatory redemption or sinking fund payments with respect to
the Notes.
Section 3.09. Offer to Purchase. In the event that, pursuant
to Sections 4.10 and 4.14 hereof, the Company shall be required to commence an
offer to all Holders to purchase Notes (a "Repurchase Offer"), it shall follow
the procedures specified below.
The Repurchase Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "Offer Period"). No
later than five Business Days after the termination of the Offer Period (the
"Purchase Date"), the Company shall purchase the principal amount of Notes
required to be purchased pursuant to Section 4.10 or 4.14 hereof (the "Offer
Amount") or, if less than the Offer Amount has been tendered, all Notes tendered
in response to the Repurchase Offer. Payment for any Notes so purchased shall be
made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date
and on or before the related interest payment date, any accrued and unpaid
interest shall be paid to the Person in whose name a Note is registered at the
close of business on such record date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Repurchase Offer.
Upon the commencement of a Repurchase Offer, the Company shall
send, by first class mail, a notice to the Trustee and each of the Holders, with
a copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Repurchase
Offer. The Repurchase Offer shall be made to all Holders. The notice, which
shall govern the terms of the Repurchase Offer, shall state:
(a) that the Repurchase Offer is being made pursuant to this
Section 3.09 and Section 4.10 or 4.14 hereof and the length of time the
Repurchase Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase
Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrete or accrue interest and Liquidated Damages, if any;
46
(d) that, unless the Company defaults in making such payment,
any Note accepted for payment pursuant to the Repurchase Offer shall
cease to accrete or accrue interest and Liquidated Damages, if any,
after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to
a Repurchase Offer may only elect to have all of such Note purchased or
a portion of such Note in denominations of $1,000 or integral multiples
thereof;
(f) that Holders electing to have a Note purchased pursuant to
any Repurchase Offer shall be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of
the Note completed, or transfer by book-entry transfer, to the Company,
the Depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three days before the Purchase
Date;
(g) that Holders shall be entitled to withdraw their election
if the Company, the Depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is withdrawing
his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Company shall
select the Notes to be purchased pursuant to the terms of Section 3.02
(with such adjustments as may be deemed appropriate by the Trustee so
that only Notes in denominations of $1,000, or integral multiples
thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall
be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer).
On or before the Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent necessary,
the Offer Amount of Notes or portions thereof tendered pursuant to the
Repurchase Offer, or if less than the Offer Amount has been tendered, all Notes
tendered, and shall deliver to the Trustee an Officers' Certificate stating that
such Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.09. The Company, the Depositary or
the Paying Agent, as the case may be, shall promptly (but in any case not later
than five days after the Purchase Date) mail or deliver to each tendering Holder
an amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, and the Company shall promptly issue a new
Note, and the Trustee, upon written request from the Company shall authenticate
and mail or deliver such new Note to such Holder, in a principal amount equal to
any unpurchased portion of the Note surrendered. Any Note not so accepted shall
be promptly mailed or delivered by the Company to the Holder thereof. The
Company shall publicly announce the results of the Repurchase Offer on the
Purchase Date.
47
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to Sections 3.01
through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes. The Company shall pay or cause
to be paid the principal of, premium, if any, and interest on the Notes on the
dates and in the manner provided in the Notes. Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent, if a
Person other than the Company or a Subsidiary thereof, holds as of 12:00 p.m.
(noon) Eastern Time on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and accrued and unpaid interest then due. The
Company shall pay all Liquidated Damages, if any, in the same manner on the
dates and in the amounts set forth in the Registration Rights Agreement.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the then applicable interest rate on the
Notes to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Liquidated Damages (without regard to any applicable grace period)
at the same rate to the extent lawful.
Section 4.02. Maintenance of Office or Agency. The Company
shall maintain in the Borough of Manhattan, the City of New York, an office or
agency (which may be an office of the Trustee or an affiliate of the Trustee,
Registrar or co-registrar) where Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.03.
48
Section 4.03. Reports. (a) Whether or not required by the SEC,
so long as any Notes are outstanding, at all times after the earlier of (A) the
date of commencement of the Exchange Offer or the effectiveness of the Shelf
Registration Statement and (B) the date that is 210 days after the date the
Notes are originally issued, the Company shall furnish to the Holders of Notes,
within the time periods specified in the SEC's rules and regulations, (i) all
quarterly and annual financial information that would be required to be
contained in a filing with the SEC 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 (ii) all current reports that
would be required to be filed with the SEC on Form 8-K if the Company were
required to file such reports. In addition, whether or not required by the SEC,
the Company shall file a copy of all of the information and reports referred to
in clauses (i) and (ii) above with the SEC for public availability within the
time periods specified in the SEC's rules and regulations (unless the SEC shall
not accept such a filing) and make such information available to securities
analysts and prospective investors upon request. In addition, the Company and
the Guarantors have agreed that, for so long as any Notes remain outstanding,
they shall furnish to the Holders and to prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
(b) If the Company has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial information
required by paragraph (a) above shall include a reasonably detailed
presentation, either on the face of the financial statements or in the footnotes
thereto, and in "Management's Discussion and Analysis of Financial Condition and
Results of Operations" 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.
(c) Notwithstanding clauses (a) and (b) above, so long as the
Parent is a Guarantor, the reports, information and other documents required to
be filed and provided as described above will be those of the Parent, rather
than those of the Company, so long as such filings would satisfy the SEC's
requirements. In such event, the quarterly and annual financial information
required by this Section 4.03 shall include a reasonably detailed presentation,
either on the face of the financial statements or in the footnotes thereto, and
in "Management's Discussion and Analysis of Financial Condition and Results of
Operations," 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 both (x) the Unrestricted Subsidiaries of the Company
and (y) any Subsidiaries of the Parent (other than the Company) that are not
Subsidiaries of the Company.
Section 4.04. Compliance Certificate. (a) The Company and each
Guarantor (to the extent that such Guarantor is so required under the TIA) shall
deliver to the Trustee, within 90 days after the end of each fiscal year, an
Officers' Certificate stating that, to his or her knowledge the Company has
kept, observed, performed and fulfilled its obligations under this Indenture and
is not in default in the performance or observance of any of the terms,
provisions and conditions of this Indenture (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and
49
what action the Company is taking or proposes to take with respect thereto) and
that to his or her knowledge no event has occurred and is continuing by reason
of which payments on account of the principal of or interest, if any, on the
Notes is prohibited or if such event has occurred, a description of the event
and what action the Company is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
year-end financial statements delivered pursuant to Section 4.03(a) above shall
be accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements,
nothing has come to their attention that would lead them to believe that the
Company has violated Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith, but in no event later than five
Business Days, upon any Officer becoming aware of any Default or Event of
Default, an Officers' Certificate specifying such Default or Event of Default
and what action the Company is taking or proposes to take with respect thereto.
Section 4.05. Taxes. The Company shall pay, and shall cause
each of its Subsidiaries to pay, prior to delinquency, all material taxes,
assessments, and governmental levies except such as are contested in good faith
and by appropriate proceedings or where the failure to effect such payment is
not adverse in any material respect to the Holders of the Notes.
Section 4.06. Stay, Extension and Usury Laws. Each of the
Company and the Guarantors covenants (to the extent that it is permitted by
applicable law) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may
affect the obligations of the Company and each of the Guarantors and the
performance of this Indenture by the Company and each of the Guarantors; and
each of the Company and the Guarantors (to the extent that it is permitted by
applicable law) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
Section 4.07. Restricted Payments. (a) The Company shall not,
and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly:
(i) 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 in connection with any merger or consolidation involving the
Company or any of its Restricted Subsidiaries) 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
50
Interests (other than Disqualified Stock) of the Company or to the
Company or a Restricted Subsidiary of the Company);
(ii) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or
consolidation involving the Company or any of its Restricted
Subsidiaries) any Equity Interests of the Company or any Restricted
Subsidiary of the Company held by Persons other than the Company or any
of its Restricted Subsidiaries;
(iii) make any voluntary payment of principal or premium on or
with respect to, or purchase, redeem, defease or otherwise acquire or
retire for value any Indebtedness that is subordinated to the Notes or
the Note Guarantees; or
(iv) make any Restricted Investment (all such payments and
other actions set forth in clauses (i) through (iv) above being
collectively referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such Restricted Payment:
(A) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof; and
(B) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted Payment
had been made at the beginning of the 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 Section
4.09; and
(C) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and its
Restricted Subsidiaries after the date of this Indenture (excluding
Restricted Payments permitted by clauses (ii), (iii), (iv) (to the
extent such dividends are payable to the Company or any Restricted
Subsidiary thereof), (vi), (vii), (viii) and (ix) of Section 4.07(b)),
is less than the sum, without duplication, of:
(1) 50% of the Consolidated Net Income of the Company
for the period (taken as one accounting period) from the
beginning of the first fiscal quarter commencing after the
date hereof to the end of the Company's most recently ended
fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such
Consolidated Net Income for such period is a deficit, less
100% of such deficit); plus
(2) 100% of the aggregate net cash proceeds received
by the Company since the date hereof as a contribution to its
common equity capital or from the issue or sale of Equity
Interests of the Company (other than Disqualified Stock) or
from the issue or sale of convertible or exchangeable
Disqualified Stock or convertible or exchangeable debt
securities of the Company that have been converted into or
exchanged for such Equity Interests (other than Equity
Interests
51
(or Disqualified Stock or debt securities) sold to a
Subsidiary of the Company); plus
(3) an amount equal to the net reduction in
Investments (other than reductions in Permitted Investments)
in any Person resulting from repayments of loans or advances,
or other transfers of assets, in each case to the Company or
any of its Restricted Subsidiaries or from the net cash
proceeds from the sale of any such Investment (except, in each
case, to the extent any such payment or proceeds are included
in the calculation of Consolidated Net Income), from the
release of any Guarantee or from redesignations of
Unrestricted Subsidiaries as Restricted Subsidiaries, not to
exceed, in each case, the amount of Investments previously
made by the Company or any of its Restricted Subsidiaries in
such Person or Unrestricted Subsidiary.
(b) The preceding clauses of this Section 4.07 shall not
prohibit:
(i) the payment of any dividend within 60 days after the date
of declaration thereof, if at said date of declaration such payment
would have complied with this Indenture;
(ii) the redemption, repurchase, retirement, defeasance or
other acquisition of any subordinated Indebtedness of the Company or
any Subsidiary Guarantor or of any Equity Interests of the Company in
exchange for, or out of the net cash proceeds of a contribution to the
common equity of the Company or a substantially concurrent sale (other
than to a Subsidiary of the Company) of, Equity Interests of the
Company (other than Disqualified Stock); provided that the amount of
any such net cash proceeds that are utilized for any such redemption,
repurchase, retirement, defeasance or other acquisition shall be
excluded from clause (C)(2) of Section 4.07(a);
(iii) the defeasance, redemption, repurchase or other
acquisition of subordinated Indebtedness of the Company or any
Subsidiary Guarantor with the net cash proceeds from an incurrence of
Permitted Refinancing Indebtedness;
(iv) the payment of any dividend by a Restricted Subsidiary of
the Company to the holders of its common Equity Interests on a pro rata
basis;
(v) so long as no Default has occurred and is continuing or
would be caused thereby, the repurchase, redemption or other
acquisition or retirement for value of any Equity Interests of the
Parent or the Company (or dividends to the Parent to consummate any
such repurchase of such Equity Interests) held by any employee, former
employee, director or former director of the Company (or any of its
Restricted Subsidiaries) upon the death, disability or termination of
employment of any of the foregoing pursuant to the terms of any
employee equity subscription agreement, stock option agreement or
similar agreement; provided that the aggregate price paid for all such
repurchased, redeemed, acquired or retired Equity Interests in any
calendar year shall not exceed the sum of (x) $2.0 million and (y) the
aggregate amount of Restricted Payments permitted but not made pursuant
to this clause (v) in the immediately preceding three calendar years;
52
(vi) so long as no Default has occurred and is continuing or
would be caused thereby, Investments acquired as a capital contribution
to, or in exchange for, or out of the net cash proceeds of a
substantially concurrent offering of, Capital Stock (other than
Disqualified Stock) of the Company; provided that the amount of any
such net cash proceeds that are utilized for any such acquisition or
exchange shall be excluded from clause (C)(2) of Section 4.07(a);
(vii) the repurchase of Capital Stock deemed to occur upon the
exercise of options or warrants if such Capital Stock represents all or
a portion of the exercise price thereof;
(viii) the payment of dividends or distributions by the
Company to the Parent in amounts required for the Parent to pay
franchise taxes and other fees required to maintain its existence and
provide for all other actual out-of-pocket operating costs of the
Parent, in each case to the extent such costs are attributable to the
ownership and operation of the Company and its Restricted Subsidiaries
including, without limitation, in respect of director fees and
expenses, administrative, legal and accounting services provided by
third parties and costs and expenses with respect to filings with the
SEC, of up to $500,000 per fiscal year;
(ix) in the event that, and for each taxable year in which,
the Parent is treated as an association taxable as a corporation for
Federal, state and local income tax purposes and the Company and its
Subsidiaries are included in a consolidated or combined tax group with
the Parent, the payment of dividends or distributions by the Company to
the Parent in an amount equal to the share of the consolidated or
combined income tax liability allocable to the Company and its
Subsidiaries in accordance with applicable Treasury Regulations;
provided that any refunds received by the Parent attributable to the
Company and its Subsidiaries shall promptly be paid by the Parent to
the Company;
(x) upon the occurrence of a Change of Control and within 60
days after the completion of the offer to repurchase the Notes pursuant
to Section 4.14 (including the purchase of all Notes tendered), any
purchase or redemption of subordinated Indebtedness of the Company
required pursuant to the terms thereof as a result of such Change of
Control at a purchase or redemption price not to exceed 101% of the
outstanding principal amount thereof, plus accrued and unpaid interest
thereon, if any; provided, however, that (A) at the time of such
purchase or redemption no Default shall have occurred and be continuing
(or would result therefrom), (B) the Company would be able to incur at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in Section 4.09(a) after giving pro forma
effect to such Restricted Payment and (C) such purchase or redemption
is not made, directly or indirectly, from the proceeds of (or made in
anticipation of) any issuance of Indebtedness by the Company or any
Subsidiary thereof; or
(xi) so long as no Default has occurred and is continuing or
would be caused thereby, Restricted Payments in an amount which, when
taken together with all other Restricted Payments made pursuant to this
clause (xi), does not exceed $10.0 million.
53
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 to or by the Company or such
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair
market value of any assets or securities that are required to be valued pursuant
to this Section 4.07 shall be determined 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 the fair market value exceeds $10.0 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
4.07 were computed, together with a copy of any fairness opinion or appraisal
required by this Indenture.
Section 4.08. Dividend 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 restriction on the
ability of any Restricted Subsidiary to:
(a) pay dividends or make any other distributions on its
Capital Stock to the Company or any of its Restricted Subsidiaries, or
with respect to any other interest or participation in, or measured by,
its profits, or pay any indebtedness owed to the Company or any of its
Restricted Subsidiaries;
(b) make loans or advances to the Company or any of its
Restricted Subsidiaries; or
(c) transfer any of its properties or assets to the Company or
any of its Restricted Subsidiaries.
However, the preceding restrictions shall not apply to
encumbrances or restrictions existing under, by reason of, or with respect to:
(i) Existing Indebtedness (including the Credit Agreement) or
any other agreements in effect on the date hereof and any amendments,
modifications, increases, restatements, renewals, extensions,
supplements, refundings, replacements or refinancings thereof, provided
that the encumbrances and restrictions in any such amendments,
modifications, increases, restatements, renewals, extensions,
supplements, refundings, replacement or refinancings are no more
restrictive, taken as a whole, than those in effect on the Issue Date;
(ii) this Indenture, the Notes and the Note Guarantees;
(iii) applicable law, rule, regulation or order;
(iv) any Person or the property or assets of such Person
acquired by the Company or any of its Restricted Subsidiaries, existing
at the time of such acquisition and not 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
54
any Person, other than the Person, or the property or assets of such
Person, so acquired and any amendments, modifications, restatements,
renewals, extensions, supplements, refundings, replacements or
refinancings thereof, provided that the encumbrances and restrictions
in any such amendments, modifications, restatements, renewals,
extensions, supplements, refundings, replacement or refinancings are no
more restrictive, taken as a whole, than those in effect on the date of
the acquisition;
(v) in the case of clause (c) of the first paragraph of this
Section 4.08:
(A) that restrict in a customary manner the
subletting, assignment or transfer of any property or asset
that is the subject of a lease, license, conveyance or
contract or similar property or asset,
(B) existing by virtue of any transfer of, agreement
to transfer, option or right with respect to, or Lien on, any
property or assets of the Company or its Restricted
Subsidiaries not otherwise prohibited by this Indenture or
(C) arising or agreed to in the ordinary course of
business, not relating to any Indebtedness, and that do not,
individually or in the aggregate, detract from the value of
property or assets of the Company or any of its Restricted
Subsidiaries in any manner material to the Company or any of
its Restricted Subsidiaries;
(vi) any agreement for the sale or other disposition of all or
substantially all of the capital stock of, or property and assets of, a
Restricted Subsidiary of the Company;
(vii) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary
course of business;
(viii) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive, taken as a whole,
than those contained in the agreements governing the Indebtedness being
refinanced; and
(ix) customary supermajority voting provisions and customary
provisions with respect to the disposition or distribution of assets or
property, in each case contained in joint venture agreements.
Section 4.09. Incurrence of Indebtedness and Issuance of
Preferred Stock. (a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, incur any Indebtedness
(including Acquired Debt), and the Company shall not permit any of its
Restricted Subsidiaries to issue any preferred stock; provided, however, that
the Company or any Subsidiary Guarantor may incur Indebtedness (including
Acquired Debt) and a Subsidiary Guarantor may issue 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 preferred stock is issued would have been at least 2.0 to 1, determined on a
pro forma basis (including a pro forma application of the net proceeds
therefrom), as if the additional
55
Indebtedness or preferred stock, as the case may be, had been incurred at the
beginning of such four-quarter period.
(b) Section 4.09(a) shall not prohibit the incurrence of any
of the following items of Indebtedness (collectively, "Permitted Debt"):
(i) the incurrence by the Company of Indebtedness under Credit
Facilities (and the incurrence by the Subsidiary Guarantors of
Guarantees thereof) in an aggregate principal amount at any one time
outstanding (with letters of credit being deemed to have a principal
amount equal to the maximum potential liability of the Company and its
Restricted Subsidiaries thereunder) not to exceed the greater of (x)
$150 million less the aggregate amount of all Net Proceeds of Asset
Sales applied by the Company or any of its Restricted Subsidiaries to
permanently repay any such Indebtedness (and, in the case of any
revolving credit Indebtedness, to effect a corresponding commitment
reduction thereunder) pursuant to Section 4.10 and (y) the Borrowing
Base on such date of incurrence;
(ii) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Company and the Subsidiary
Guarantors of Indebtedness represented by the Notes and the related
Note Guarantees to be issued on the date of this Indenture and the
Exchange Notes and the related Note Guarantees to be issued pursuant to
the Registration Rights Agreement;
(iv) 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 within 180 days of the acquisition or completion of
construction or installation for the purpose of financing all or any
part of the purchase price or cost of construction, installation or
improvement of property, plant or equipment used in the business of the
Company or such Restricted Subsidiary, in an aggregate principal
amount, including all Permitted Refinancing Indebtedness incurred to
refund, refinance or replace any Indebtedness incurred pursuant to this
clause (iv), at any time outstanding not to exceed the greater of (x)
$25.0 million and (y) 3% of the Total Assets of the Company;
(v) 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 Section 4.09(a) or clause (ii),
(iii), (iv), (v) or (xiii) of this Section 4.09(b);
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness owing to and held by the
Company or any of its Restricted Subsidiaries; provided, however, that:
(x) if the Company or any Subsidiary Guarantor is the
obligor on such Indebtedness (other than any Indebtedness
solely between or among the Company and any Subsidiary
Guarantor), such Indebtedness must be unsecured and
56
expressly subordinated to the prior payment in full in cash of
all Obligations with respect to the Notes, in the case of the
Company, or the Note Guarantee, in the case of a Subsidiary
Guarantor;
(y) (A) 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 Restricted Subsidiary
thereof and (B) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a
Restricted Subsidiary thereof, 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 (vi); and
(z) Indebtedness owed to the Company or any
Subsidiary Guarantor must be evidenced by an unsubordinated
promissory note, unless the obligor under such Indebtedness is
the Company or a Subsidiary Guarantor;
(vii) the Guarantee by the Company or any of the Subsidiary
Guarantors of Indebtedness of the Company or a Restricted Subsidiary of
the Company that was permitted to be incurred by another provision of
this Section 4.09;
(viii) the incurrence by the Company or any of its Restricted
Subsidiaries of Physician Support Obligations;
(ix) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness owed to (including obligations in respect
of letters of credit for the benefit of) any person providing worker's
compensation, health, disability or other employee benefits or
property, casualty or liability insurance, pursuant to reimbursement or
indemnification obligations to such person, in each case incurred in
the ordinary course of business;
(x) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness in respect of performance bonds, bid
bonds, appeal bonds, surety bonds and similar obligations, including
repayment obligations in connection with self-insurance requirements,
in each case provided in the ordinary course of business;
(xi) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument
drawn against insufficient funds in the ordinary course of business,
provided, however, that such Indebtedness is extinguished within five
Business Days of its incurrence;
(xii) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness in the form of loans from a Captive
Insurance Subsidiary in an aggregate principal amount at any time
outstanding not to exceed 20% of the Total Assets of such Captive
Insurance Subsidiary; and
(xiii) the incurrence by the Company or any Restricted
Subsidiary thereof of additional Indebtedness in an aggregate principal
amount (or accreted value, as
57
applicable), including all Permitted Refinancing Indebtedness incurred
to refund, refinance or replace any Indebtedness incurred pursuant to
this clause (xiii), not to exceed $50.0 million at any time
outstanding; provided that the aggregate principal amount (or accreted
value, as applicable) of all Indebtedness of all Restricted
Subsidiaries of the Company that are not Subsidiary Guarantors incurred
pursuant to this clause (xiii), including all Permitted Refinancing
Indebtedness incurred to refund, refinance or replace any such
Indebtedness, shall not exceed $25.0 million.
(c) For purposes of determining compliance with this Section
4.09, in the event that any proposed Indebtedness meets the criteria of more
than one of the categories of Permitted Debt described in clauses (i) through
(xiii) of Section 4.09(b), or is entitled to be incurred pursuant to Section
4.09(a), the Company shall be permitted to classify on the date of its
incurrence such item of Indebtedness in any manner that complies with this
Section 4.09. Indebtedness under Credit Facilities outstanding on the date on
which Notes are first issued under this Indenture shall be deemed to have been
incurred on such date in reliance on the exception provided by clause (i) of
Section 4.09(b). In addition, any Indebtedness originally classified as incurred
pursuant to clauses (i) through (xiii) of this Section 4.09 may later be
reclassified by the Company such that it shall be deemed as having been incurred
pursuant to another of such clauses to the extent that such reclassified
Indebtedness could be incurred pursuant to such new clause at the time of such
reclassification.
The accrual of interest, the accretion or amortization of
original issue discount, the payment of interest on any Indebtedness in the form
of additional Indebtedness with the same terms and the payment of dividends on
Disqualified Stock in the form of additional shares of the same class of
Disqualified Stock shall not be deemed to be an incurrence of Indebtedness for
purposes of this Section 4.09; provided that, in each such case, the amount
thereof is for all other purposes included in the Fixed Charges and Indebtedness
of the Company as accrued.
Notwithstanding any other provision of this Section 4.09, the
maximum amount of Indebtedness that may be incurred pursuant to this Section
4.09 shall not be deemed to be exceeded, with respect to any outstanding
Indebtedness, due solely to the result of fluctuations in the exchange rates of
currencies.
Section 4.10. Asset Sales. (a) The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale
unless: (i) the Company (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of such Asset Sale at least equal to the fair
market value of the assets or Equity Interests issued or sold or otherwise
disposed of; (ii) 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; and (iii) at least 75% of the
consideration therefor received by the Company or such Restricted Subsidiary is
in the form of cash, Cash Equivalents or Replacement Assets or a combination of
the foregoing. For purposes of this Section 4.10, each of the following shall be
deemed to be cash:
(A) any liabilities (as shown on the Company's or such
Restricted Subsidiary's most recent balance sheet) of the Company or
any of its Restricted Subsidiaries (other than contingent liabilities,
liabilities that are by their terms subordinated to the Notes or
58
any Note Guarantee and liabilities that are owed to the Company or any
Affiliate of the Company) that are assumed by the transferee of any
such assets pursuant to a customary written 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
(subject to ordinary settlement periods) converted by the Company or
such Restricted Subsidiary into cash within 30 days (to the extent of
the cash received in that conversion).
(b) Within 360 days after the receipt of any Net Proceeds from
an Asset Sale, the Company or any of its Restricted Subsidiaries may apply such
Net Proceeds at its option:
(i) to repay Senior Debt and, if the Senior Debt repaid is
revolving credit Indebtedness, to correspondingly reduce commitments
with respect thereto; or
(ii) to purchase Replacement Assets (or enter into a binding
agreement to purchase such assets so long as such purchase is
consummated within 90 days after the end of such 360-day period) or
make a capital expenditure in or that is used or useful in a Permitted
Business.
Pending the final application of any such Net Proceeds, the Company or any of
its Restricted Subsidiaries may temporarily reduce revolving credit borrowings
or otherwise invest such Net Proceeds in any manner that is not prohibited by
this Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the preceding paragraph shall constitute "Excess
Proceeds." Within 30 days after the aggregate amount of Excess Proceeds exceeds
$15.0 million, the Company shall make an Asset Sale Offer to all Holders of
Notes and all holders of other Indebtedness that is pari passu with the Notes or
any Note Guarantee containing provisions similar to those set forth in this
Indenture with respect to offers to purchase with the proceeds of sales of
assets, to purchase the maximum principal amount of Notes and such other pari
passu Indebtedness that may be purchased out of the Excess Proceeds. The offer
price in any Asset Sale Offer shall be equal to 100% of principal amount plus
accrued and unpaid interest and Liquidated Damages, if any, to the date of
purchase, and shall be payable in cash. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company or any of its Restricted
Subsidiaries may use such Excess Proceeds for any purpose not otherwise
prohibited by this Indenture. If the aggregate principal amount of Notes and
such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds
the amount of Excess Proceeds, the Trustee shall select the Notes and such other
pari passu Indebtedness to be purchased on a pro rata basis based on the
principal amount of Notes and such other pari passu Indebtedness tendered. Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds shall be
reset at zero.
(d) 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 each repurchase of Notes pursuant to an Asset Sale Offer. To the extent
that the provisions of any securities laws or regulations conflict with
59
this Section 4.10, the Company shall comply with the applicable securities laws
and regulations and shall not be deemed to have breached its obligations under
this Section 4.10 by virtue of such compliance.
Section 4.11. Transactions with Affiliates. (a) 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,
make, amend, renew or extend any transaction, contract, agreement,
understanding, loan, advance or Guarantee with, or for the benefit of, any
Affiliate (each, an "Affiliate Transaction"), unless (i) 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 arm's-length transaction by the Company or such Restricted Subsidiary
with a Person that is not an Affiliate of the Company; and (ii) 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 $5.0 million, a resolution of the Board of Directors of the
Company set forth in an Officers' Certificate certifying that such
Affiliate Transaction or series of related Affiliate Transactions
complies with this Section 4.11 and that such Affiliate Transaction or
series of related Affiliate Transactions has been approved by a
majority of the disinterested members of the Board of Directors of the
Company; and
(B) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $10.0 million, an opinion as to the fairness to the Company
or such Restricted Subsidiary of such Affiliate Transaction or series
of related Affiliate Transactions from a financial point of view issued
by an independent accounting, appraisal or investment banking firm of
national standing.
(b) The following items shall not be deemed to be Affiliate
Transactions and, therefore, shall not be subject to Section 4.11(a):
(i) transactions between or among the Company and/or its
Restricted Subsidiaries;
(ii) Restricted Payments and Permitted Investments that are
permitted by this Indenture;
(iii) any sale of Capital Stock (other than Disqualified
Stock) of the Company and the granting of registration rights in
connection therewith;
(iv) any transaction pursuant to any agreement in existence on
the Issue Date and disclosed in the Offering Memorandum, or any
amendment or replacement thereof that, taken in its entirety, is no
less favorable to the Company and its Restricted Subsidiaries than such
agreement in effect on the Issue Date;
60
(v) loans or advances to employees of the Company or any of
its Restricted Subsidiaries in the ordinary course of business and in
accordance with prior practice, not to exceed $5.0 million in the
aggregate at any one time outstanding;
(vi) the payment of reasonable fees to directors of the
Company and its Restricted Subsidiaries who are not employees of the
Company or its Restricted Subsidiaries, and compensation and employee
benefit arrangements paid to, and indemnity provided for the benefit
of, directors, officers, or employees of the Company and its Restricted
Subsidiaries in the ordinary course of business;
(vii) payments by the Company or any of its Restricted
Subsidiaries of reasonable insurance premiums to, and any borrowings
from, any Captive Insurance Subsidiary, in each case on terms that are
no less favorable to the Company or such Restricted Subsidiary than
those that would have been obtained in a comparable arm's-length
transaction by the Company or such Restricted Subsidiary with a Person
that is not an Affiliate of the Company; and
(viii) any agreement among any of the Principals, their
Affiliates and the Company or any of its Restricted Subsidiaries
relating to the payment (directly or through the Parent) of fees by the
Company or any of its Restricted Subsidiaries for (i) any financial
advisory, financing, underwriting or placement services or in respect
of other investment banking activities rendered to the Company or any
of its Restricted Subsidiaries in an amount not to exceed 2.0% of the
aggregate transaction value (or portion thereof) in respect of which
such services are rendered, plus reasonable out-of-pocket expenses and
(ii) customary management services provided to the Company or any of
its Restricted Subsidiaries from time to time.
Section 4.12. Liens. 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
Indebtedness (other than Permitted Liens) upon any of their property or assets,
now owned or hereafter acquired, unless all payments due under this Indenture
and the Notes are secured on an equal and ratable basis with the obligations so
secured (or, in the case of subordinated Indebtedness, prior or senior thereto,
with the same relative priority as the Notes shall have with respect to such
subordinated Indebtedness) until such time as such obligations are no longer
secured by a Lien; provided that the Company and any Restricted Subsidiary
thereof may create a Lien upon any Subsidiary Intercompany Note (including any
security interests or pledges or Lien rights that form part of such Subsidiary
Intercompany Note) securing Senior Debt that was permitted by the terms of this
Indenture to be incurred if all payments due under this Indenture and the Notes
are similarly secured with a relative priority with respect to such Senior Debt
as set forth in an intercreditor agreement or any supplement or replacement
thereto substantially in the form of the Intercreditor and Subordination
Agreement.
Section 4.13. Corporate Existence. Subject to Article 5
hereof, the Company shall do or cause to be done all things reasonably necessary
to preserve and keep in full force and effect (a) its corporate existence, and
the corporate, partnership or other existence of each of its Significant
Subsidiaries, in accordance with the respective organizational documents (as the
61
same may be amended from time to time) of the Company or any such Significant
Subsidiary and (b) the material rights (charter and statutory), licenses and
franchises of the Company and its Significant Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Significant Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Significant Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders of the Notes.
Section 4.14. Offer to Repurchase upon Change of Control. (a)
If a Change of Control occurs, each Holder of Notes shall have the right to
require the Company to repurchase all or any part (equal to $1,000 or an
integral multiple thereof) of such Holder's Notes pursuant to the offer
described below (the "Change of Control Offer") at an offer price in cash equal
to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the date of purchase (the
"Change of Control Payment"). Within 30 days following any Change of Control,
the Company shall mail a notice to each Holder describing the transaction or
transactions that constitute the Change of Control and stating (i) that the
Change of Control Offer is being made pursuant to this Section 4.14 and Section
3.09 and that all Notes tendered will be accepted for payment; (ii) the purchase
price and the purchase date, which shall be no earlier than 30 days and no later
than 60 days from the date such notice is mailed (the "Change of Control Payment
Date"); (iii) that any Note not tendered will continue to accrue interest and
Liquidated Damages, if any; (iv) that, unless the Company defaults in the
payment of the Change of Control Payment, all Notes accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest and
Liquidated Damages, if any, after the Change of Control Payment Date; (v) that
Holders electing to have any Notes purchased pursuant to a Change of Control
Offer will be required to surrender the Notes, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Notes completed, to the Paying
Agent at the address specified in the notice prior to the close of business on
the third Business Day preceding the Change of Control Payment Date; (vi) that
Holders will 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 Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such Holder is
withdrawing his election to have the Notes purchased; and (vii) that Holders
whose Notes are being purchased only in part will be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to $1,000 in principal amount or an integral
multiple thereof. The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change of Control. To the extent that
the provisions of any securities laws or regulations conflict with this Section
4.14, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.14 by virtue of such compliance.
(b) On the Change of Control Payment Date, the Company shall,
to the extent lawful (i) accept for payment all Notes or portions thereof
properly tendered pursuant to the Change of Control Offer (ii) deposit with the
Paying Agent an amount equal to the Change of
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Control Payment in respect of all Notes or portions thereof so tendered and
(iii) deliver or cause to be delivered to the Trustee the Notes so accepted
together with an Officers' Certificate stating the aggregate principal amount of
Notes or portions thereof being purchased by the Company. The Paying Agent shall
promptly mail or wire transfer to each Holder of Notes so tendered the Change of
Control Payment for such Notes, and the Trustee shall promptly authenticate and
mail (or cause to be transferred by book entry) to each Holder a new Note equal
in principal amount to any unpurchased portion of the Notes surrendered, if any;
provided that each such new Note shall be in a principal amount of $1,000 or an
integral multiple thereof. Prior to complying with this Section 4.14, but in any
event within 30 days following a Change of Control, the Company shall either
repay all outstanding Senior Debt or obtain the requisite consents, if any,
under all agreements governing outstanding Senior Debt to permit the repurchase
of Notes required by this Section 4.14. The Company shall publicly announce the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.
(c) Clause (b) of this Section 4.14 shall be applicable
regardless of whether any other Sections of this Indenture are applicable.
Except as described above with respect to a Change of Control, this Indenture
does not contain provisions that permit the Holders of the Notes to require that
the Company repurchase or redeem the Notes in the event of a takeover,
recapitalization or similar transaction.
(d) 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 Indenture applicable to a Change of Control Offer
made by the Company and purchases all Notes validly tendered and not withdrawn
under such Change of Control Offer.
Section 4.15. Limitation on Senior Subordinated Debt. The
Company shall not incur any Indebtedness that is subordinate or junior in right
of payment to any Senior Debt of the Company unless it is pari passu or
subordinate in right of payment to the Notes. No Subsidiary Guarantor shall
incur any Indebtedness that is subordinate or junior in right of payment to the
Senior Debt of such Subsidiary Guarantor unless it is pari passu or subordinate
in right of payment to such Subsidiary Guarantor's Note Guarantee. For purposes
of the foregoing, no Indebtedness shall be deemed to be contractually
subordinated in right of payment to any other Indebtedness of the Company solely
by virtue of being unsecured or by virtue of the fact that the holders of any
secured Indebtedness have entered into intercreditor agreements giving one or
more of such holders priority over the other holders in the collateral held by
them.
Section 4.16. Designation of Restricted and Unrestricted
Subsidiaries. The Board of Directors of the Company may designate any Restricted
Subsidiaries of the Company to be an Unrestricted Subsidiary; provided that:
(a) any Guarantee by the Company or any of its Restricted
Subsidiaries of any Indebtedness of the Subsidiary being so designated
shall be deemed to be an incurrence of Indebtedness by the Company or
such Restricted Subsidiary (or both, if applicable) at the time of such
designation, and such incurrence of Indebtedness would be permitted
under Section 4.09;
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(b) the aggregate fair market value of all outstanding
Investments owned by the Company and its Restricted Subsidiaries in the
Subsidiary being so designated (including any Guarantee by the Company
or any Restricted Subsidiary of any Indebtedness of such Subsidiary)
shall be deemed to be an Investment made as of the time of such
designation and that such Investment would be a Permitted Investment or
otherwise permitted under Section 4.07;
(c) such Subsidiary does not own any Equity Interests of, or
hold any Liens on any Property of, the Company or any of its Restricted
Subsidiaries;
(d) the Subsidiary being so designated:
(i) 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;
(ii) 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;
(iii) has not Guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the
Company or any of its Restricted Subsidiaries; and
(iv) has at least one director on its Board of
Directors that is not a director or officer of the Company or
any of its Restricted Subsidiaries and has at least one
executive officer that is not a director or officer of the
Company or any of its Restricted Subsidiaries; and
(e) no Default or Event of Default would be in existence
following such designation.
Any designation of a Restricted 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 of the Company giving effect to
such designation and an Officers' Certificate certifying that such designation
complied with the preceding conditions and was permitted by this Indenture. If,
at any time, any Unrestricted Subsidiary would fail to meet any of the preceding
requirements described in clause (d) above, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness,
Investments, or Liens on the property of such Subsidiary shall be deemed to be
incurred by a Restricted Subsidiary of the Company as of such date and, if such
Indebtedness, Investments or Liens are not permitted to be incurred as of such
date under this Indenture, the Company shall be in default.
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The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that:
(A) such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any
outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if such Indebtedness is permitted
under Section 4.09, calculated on a pro forma basis as if such
designation had occurred at the beginning of the four-quarter reference
period;
(B) all outstanding Investments owned by such Unrestricted
Subsidiary shall be deemed to be made as of the time of such
designation and such Investments shall only be permitted if such
Investments would be Permitted Investments or otherwise permitted under
Section 4.07;
(C) all Liens of such Unrestricted Subsidiary existing at the
time of such designation would be permitted under Section 4.12; and
(D) no Default or Event of Default would be in existence
following such designation.
Section 4.17. Limitation on Issuances of Guarantees of
Indebtedness. The Company shall not permit any of its Restricted Subsidiaries,
directly or indirectly, to Guarantee or pledge any assets to secure the payment
of any other Indebtedness of the Company or any Guarantor, unless such
Restricted Subsidiary is a Guarantor or simultaneously executes and delivers a
supplemental indenture in the form attached hereto as Exhibit F providing for
the Guarantee of the payment of the Notes by such Restricted Subsidiary, which
Guarantee shall be senior to or pari passu with such Restricted Subsidiary's
Guarantee of or pledge to secure such other Indebtedness unless such other
Indebtedness is Senior Debt, in which case the Guarantee of the Notes may be
subordinated to the Guarantee of such Senior Debt to the same extent as the
Notes are subordinated to such Senior Debt. The form of the Note Guarantee is
attached as Exhibit E to this Indenture.
Section 4.18. Payments for Consent. The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, directly or indirectly,
pay or cause to be paid any consideration to or for the benefit of any Holder of
Notes for or as an inducement to any consent, waiver or amendment of any of the
terms of this Indenture or the Notes unless such consideration is offered to be
paid and is paid to all Holders of the Notes that consent, waive or agree to
amend in the time frame set forth in the solicitation documents relating to such
consent, waiver or agreement.
Section 4.19. Business Activities. The Company shall not, and
shall not permit any of its Restricted Subsidiaries to, engage in any business
other than Permitted Businesses, except to such extent as would not be material
to the Company and its Restricted Subsidiaries taken as a whole.
Section 4.20. 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, issue, transfer, convey, sell,
lease or otherwise dispose of any Equity Interests in any Restricted
65
Subsidiary of the Company to any Person (other than the Company or a Restricted
Subsidiary of the Company), unless:
(1) immediately after giving effect to such issuance,
transfer, conveyance, sale, lease or other disposition, any Investment
in such Person remaining after giving effect to such issuance,
transfer, conveyance, sale, lease or other disposition would have been
permitted to be made under Section 4.07 if made on the date of such
issuance, transfer, conveyance, sale, lease or other disposition; and
(2) the Company or such Restricted Subsidiary complies with
Section 4.10 including the application of the Net Proceeds from such
issuance, transfer, conveyance, sale, lease or other disposition.
Section 4.21. Additional Note Guarantees. If, on or after the
Issue Date (a) the Company or any of its Restricted Subsidiaries acquires or
creates another Domestic Subsidiary, other than an HMO Subsidiary, that either
(x) is a Wholly Owned Restricted Subsidiary or (y) provides a Guarantee of any
Indebtedness of the Company or of any other Guarantor, (b) any Domestic
Subsidiary of the Company or of any of its Restricted Subsidiaries that is not a
Guarantor provides a Guarantee of any Indebtedness of the Company or of any
other Guarantor or (c) any HMO Subsidiary ceases to be prohibited by applicable
HMO Regulations from providing a full and unconditional Guarantee of the Notes,
then, in any such event, that Domestic Subsidiary or that HMO Subsidiary, as
applicable, must become a Guarantor and execute a supplemental indenture in the
form attached hereto as Exhibit F within 10 Business Days of the date of such
event.
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets. The
Company shall not directly or indirectly (a) consolidate or merge with or into
another Person (whether or not the Company is the surviving corporation) or (b)
sell, assign, transfer, convey or otherwise dispose of all or substantially all
of the properties and assets of the Company and its Restricted Subsidiaries,
taken as a whole, in one or more related transactions, to another Person or
Persons, unless:
(i) 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 (1) is a
corporation organized or existing under the laws of the United States,
any state thereof or the District of Columbia and (2) assumes all the
obligations of the Company under the Notes, this Indenture, and the
Registration Rights Agreement pursuant to agreements reasonably
satisfactory to the Trustee;
(ii) immediately after giving effect to such transaction no
Default or Event of Default exists;
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(iii) immediately after giving effect to such transaction on a
pro forma basis, the Company or the Person formed by or surviving any
such consolidation or merger (if other than the Company), or to which
such sale, assignment, transfer, conveyance or other disposition shall
have been made shall, on the date of such transaction after giving pro
forma effect thereto and any related financing transactions as if the
same 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 Section
4.09(a);
(iv) each Guarantor, unless such Guarantor is the Person with
which the Company has entered into a transaction under this Section
5.01, shall have by amendment to its Note Guarantee confirmed that its
Note Guarantee shall apply to the obligations of the Company or the
surviving Person in accordance with the Notes and this Indenture; and
(v) the Company delivers to the Trustee an Officers'
Certificate (attaching the arithmetic computation to demonstrate
compliance with clause (iii) above) and Opinion of Counsel, in each
case stating that such transaction and such agreement complies with
this Section 5.01 and that all conditions precedent provided for herein
relating to such transaction have been complied with.
In addition, neither the Company nor any of its Restricted
Subsidiaries may, directly or indirectly, lease all or substantially all of its
properties or assets, in one or more related transactions, to any other Person.
Clause (iii) above of this Section 5.01 shall not apply to any merger,
consolidation or sale, assignment, transfer, lease, conveyance or other
disposition of assets between or among the Company and any of its Restricted
Subsidiaries.
Section 5.02. Successor Corporation Substituted. Upon any
consolidation or merger, or any sale, assignment, transfer, conveyance or other
disposition of all or substantially all of the assets of the Company in
accordance with Section 5.01 hereof, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
assignment, transfer, conveyance or other disposition is made shall succeed to,
and be substituted for (so that from and after the date of such consolidation,
merger, sale, conveyance or other disposition, the provisions of this Indenture
referring to the "Company" shall refer instead to the successor corporation and
not to the Company), and may exercise every right and power of the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein; provided, however, that the predecessor Company shall not
be relieved from the obligation to pay the principal of and interest on the
Notes except in the case of a sale of all of the Company's assets that meets the
requirements of Section 5.01 hereof.
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ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default. (a) Each of the following is
an "Event of Default":
(i) default for 30 days in the payment when due of interest
on, or Liquidated Damages with respect to, the Notes whether or not
prohibited by Article 10 of this Indenture;
(ii) default in payment when due (whether at maturity, upon
acceleration, redemption or otherwise) of the principal of, or premium,
if any, on the Notes, whether or not prohibited by Article 10 of this
Indenture;
(iii) failure by the Company or any of its Restricted
Subsidiaries to comply with Section 4.10, Section 4.14 or Section 5.01;
(iv) failure by the Company or any of its Restricted
Subsidiaries for 30 days after written notice by the Trustee or Holders
representing 25% or more of the aggregate principal amount of Notes
outstanding to comply with any of the other agreements in this
Indenture;
(v) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is Guaranteed by the
Company or any of its Restricted Subsidiaries) whether such
Indebtedness or Guarantee now exists, or is created after the date of
this Indenture, if that default:
(A) is caused by a failure to make any payment when
due at the final maturity of such Indebtedness (a "Payment
Default"); or
(B) results in the acceleration of such Indebtedness
prior to its express maturity,
and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under
which there has been a Payment Default or the maturity of which has
been so accelerated, aggregates $10.0 million or more;
(vi) failure by the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary of the Company (or any
group of Restricted Subsidiaries that together would constitute a
Significant Subsidiary of the Company) to pay final judgments (to the
extent such judgments are not paid or covered by insurance provided by
a carrier that has acknowledged coverage in writing and has the ability
to perform) aggregating in excess of $10.0 million, which judgments are
not paid, discharged or stayed for a period of 60 days;
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(vii) except as permitted by this Indenture, any Note
Guarantee of a Significant Subsidiary of the Company (or the Note
Guarantees of any group of Guarantors that together would constitute a
Significant Subsidiary of the Company) shall be held in any judicial
proceeding to be unenforceable or invalid or shall cease for any reason
to be in full force and effect or any Guarantor that is a Significant
Subsidiary of the Company (or any group of Guarantors that together
would constitute a Significant Subsidiary of the Company) or any Person
acting on behalf of any such Guarantor or Guarantors, shall deny or
disaffirm its obligations under its Note Guarantee; and
(viii) the Company or any of its Restricted Subsidiaries that
is a Significant Subsidiary (or any group of Restricted Subsidiaries
that together would constitute a Significant Subsidiary of the
Company), pursuant to or within the meaning of Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) makes a general assignment for the benefit of its
creditors, or
(D) generally is not paying its debts as they become
due; and
(ix) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary (or
any group of Restricted Subsidiaries that together would
constitute a Significant Subsidiary of the Company), in an
involuntary case; or
(B) appoints a custodian of the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary (or
any group of Restricted Subsidiaries that together would
constitute a Significant Subsidiary of the Company) or for all
or substantially all of the property of the Company or any of
its Restricted Subsidiaries that is a Significant Subsidiary
(or any group of Restricted Subsidiaries that together would
constitute a Significant Subsidiary of the Company), or
(C) orders the liquidation of the Company or any of
its Restricted Subsidiaries that is a Significant Subsidiary
(or any group of Restricted Subsidiaries that together would
constitute a Significant Subsidiary of the Company);
and the order or decree remains undismissed or unstayed and in effect
for 60 consecutive days.
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Section 6.02. Acceleration. (a) In the case of an Event of
Default specified in clause (viii) or (ix) of Section 6.01(a) with respect to
the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary (or any group of Restricted Subsidiaries that together would
constitute a Significant Subsidiary of the Company), all outstanding Notes will
become due and payable immediately without further action or notice. If any
other Event of Default occurs and is continuing, the Trustee or the Holders of
at least 25% in principal amount of the then outstanding Notes may declare all
the Notes to be due and payable immediately by notice in writing to the Company
specifying the Event of Default.
(b) In the event of a declaration of acceleration of the Notes
because an Event of Default has occurred and is continuing as a result of the
acceleration of any Indebtedness described in clause (v) of Section 6.01(a)
hereof, the declaration of acceleration of the Notes shall be automatically
annulled if the holders of any Indebtedness described in clause (v) of Section
6.01(a) hereof have rescinded the declaration of acceleration in respect of the
Indebtedness within 30 days of the date of the declaration and if:
(i) the annulment of the acceleration of Notes would not
conflict with any judgment or decree of a court of competent
jurisdiction; and
(ii) all existing Events of Default, except nonpayment of
principal or interest on the Notes that became due solely because of
the acceleration of the Notes, have been cured or waived.
(c) In the case of any Event of Default occurring by reason of
any willful action or inaction taken or not taken by or on behalf of the Company
with the intention of avoiding payment of the premium that the Company would
have had to pay if the Company then had elected to redeem the Notes pursuant to
Section 3.07 hereof, an equivalent premium shall also become and be immediately
due and payable to the extent permitted by law upon the acceleration of the
Notes.
Section 6.03. Other Remedies. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal, premium, if any, interest and Liquidated Damages, if any,
on the Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults. Holders of a majority
in aggregate principal amount of the then outstanding Notes by notice to the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default or Event of Default and its consequences hereunder (including rescinding
any related acceleration of the payment of the Notes), except a continuing
Default or Event of Default (and any related acceleration of the payment of the
Notes) in the payment of the principal of, premium and Liquidated Damages, if
any, or interest
70
on, the Notes. The Company shall deliver to the Trustee an Officers' Certificate
stating that the requisite percentage of Holders have consented to such waiver
and attaching copies of such consents. In case of any such waiver, the Company,
the Trustee and the Holders shall be restored to their former positions and
rights hereunder and under the Notes, respectively. This Section 6.04 shall be
in lieu of Section 316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of the
TIA is hereby expressly excluded from this Indenture and the Notes, as permitted
by the TIA. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Section 6.05. Control by Majority. Subject to Section 2.09,
holders of a majority in principal amount of the then outstanding Notes may
direct the time, method and place of conducting any proceeding for exercising
any remedy available to the Trustee or exercising any trust or power conferred
on it. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture that may involve the Trustee in personal liability or
that the Trustee determines in good faith may be unduly prejudicial to the
rights of Holders of Notes not joining in the giving of such direction, and the
Trustee shall have the right to decline to follow any such direction, if the
Trustee, being advised by counsel, determines that such action so directed may
not be lawfully taken or if the Trustee, in good faith shall by a Responsible
Officer, determine that the proceedings so directed may involve the Trustee in
personal liability; provided that the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction. In the
event the Trustee takes any action or follows any direction pursuant to this
Indenture, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion against any loss or expense caused by taking such action
or following such direction. This Section 6.05 shall be in lieu of Section
316(a)(1)(A) of the TIA, and such Section 316(a)(1)(A) of the TIA is hereby
expressly excluded from this Indenture and the Notes, as permitted by the TIA.
Section 6.06. Limitation on Suits. A Holder of a Note may not
pursue a remedy with respect to this Indenture, the Notes or the Note Guarantees
unless:
(a) the Holder of a Note gives to the Trustee written notice
of a continuing Event of Default;
(b) the Holders of at least 25% in aggregate principal amount
of the then outstanding Notes make a written request to the Trustee to
pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee
a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
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Section 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Note to receive payment of principal, premium and Liquidated Damages, if
any, and interest on the Note, on or after the respective due dates expressed in
the Note (including in connection with an offer to purchase), or to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
Section 6.08. Collection Suit by Trustee. If an Event of
Default specified in Section 6.01(a) occurs and is continuing, the Trustee is
authorized to recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount of principal of, premium and
Liquidated Damages, if any, and interest remaining unpaid on the Notes and
interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim. The Trustee is
authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and the Holders of the Notes allowed in any
judicial proceedings relative to the Company or any Guarantor (or any other
obligor upon the Notes), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or other securities or
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10. Priorities. If the Trustee collects any money
pursuant to this Article, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee
and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium and Liquidated Damages, if any, and
interest, ratably, without
72
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium and Liquidated Damages, if
any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as a Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07
hereof, or a suit by Holders of more than 10% in principal amount of the then
outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the same degree of care and
skill in its exercise, as a prudent person would exercise or use under the
circumstances in the conduct of its own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
this Indenture and the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts purported to be stated
therein).
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
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(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have offered
to the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money or assets held in trust by the Trustee need not be segregated from other
funds or assets except to the extent required by law.
Section 7.02. Rights of Trustee. (a) The Trustee may
conclusively rely upon any document (whether in its original or facsimile form)
believed by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require (other than in connection with the Exchange
Offer contemplated by Section 2.06(f) unless required by the TIA) an Officers'
Certificate or an Opinion of Counsel or both. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent or
attorney appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such
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Holders shall have offered to the Trustee reasonable security or indemnity
satisfactory to it against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction.
(g) The Trustee shall not be deemed to have knowledge of any
Default or Event of Default except (i) any Event of Default occurring pursuant
to Section 6.01(a) or (ii) any Event of Default of which the Trustee shall have
received written notification or otherwise obtained actual knowledge.
Section 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company or any Affiliate of the Company with the
same rights it would have if it were not Trustee. However, in the event that the
Trustee acquires any conflicting interest it must eliminate such conflict within
90 days, apply to the SEC for permission to continue as trustee or resign. Any
Agent may do the same with like rights and duties. The Trustee is also subject
to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Company's use
of the proceeds from the Notes or any money paid to the Company or upon the
Company's direction under any provision of this Indenture, it shall not be
responsible for the use or application of any money received by any Paying Agent
other than the Trustee, and it shall not be responsible for any statement or
recital herein or any statement in the Notes or any other document in connection
with the sale of the Notes or pursuant to this Indenture other than its
certificate of authentication.
Section 7.05. Notice of Defaults. If a Default or Event of
Default occurs and is continuing and if it is known to the Trustee, the Trustee
shall mail to the Holders of the Notes a notice of the Default or Event of
Default within 90 days after it occurs. Except in the case of a Default or Event
of Default in payment of principal of, premium and Liquidated Damages, if any,
or interest on any Note, the Trustee may withhold the notice if and so long as
the board of directors, the executive committee or a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders of the Notes.
Section 7.06. Reports by Trustee to the Holders of the Notes.
Within 60 days after each May 15 beginning with the May 15 following the date of
this Indenture, and for so long as Notes remain outstanding, the Trustee shall
mail to the Holders of the Notes a brief report dated as of such reporting date
that complies with TIA ss. 313(a) (but if no event described in TIA ss. 313(a)
has occurred within the twelve months preceding the reporting date, no report
need be transmitted). The Trustee also shall comply with TIA ss. 313(b)(2). The
Trustee shall also transmit by mail all reports as required by TIA ss. 313(c).
A copy of each report at the time of its mailing to the
Holders of the Notes shall be mailed to the Company and filed with the SEC and
each stock exchange on which the Notes are listed in accordance with TIA ss.
313(d). The Company shall promptly notify the Trustee when the Notes are listed
on any securities exchange or of any delisting thereof.
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Section 7.07. Compensation and Indemnity. The Company shall
pay to the Trustee from time to time reasonable compensation for its acceptance
of this Indenture and services hereunder. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel and
any taxes or other expenses incurred by a trust created pursuant to Section 8.04
hereof.
The Company shall indemnify the Trustee and its agents against
any and all losses, liabilities, claims, damages or expenses (including
compensation, fees, disbursements and expenses of Trustee's agents and counsel)
incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against the Company (including this Section
7.07) and defending itself against any claim (whether asserted by the Company or
any Holder or any other person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense is judicially determined to have been caused by
to its own negligence or bad faith. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee to
so notify the Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld.
The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a Lien prior to the Notes on all money or property
held or collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture. The Trustee's right to receive payment of any
amounts due under this Section 7.07 shall not be subordinated to any other
liability or Indebtedness of the Company.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(a)(viii) or (ix) hereof occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss.
313(b)(2) to the extent applicable.
Section 7.08. Replacement of Trustee. A resignation or removal
of the Trustee and appointment of a successor Trustee shall become effective
only upon the successor Trustee's acceptance of appointment as provided in this
Section 7.08.
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The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of a majority in principal amount of the then outstanding Notes may
remove the Trustee by so notifying the Trustee and the Company in writing. The
Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of Notes of at least 10% in principal amount of the then
outstanding Notes may petition at the expense of the Company any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note
who has been a Holder of a Note for at least six months, fails to comply with
Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger, Etc. If the Trustee
consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification. There shall at
all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof
that is authorized under such laws to exercise corporate trustee
77
power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $50 million
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss.ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b); provided, however, that there shall be excluded from the operation
of TIA ss. 310(b)(1) any indenture or indentures under which other securities,
or certificates of interest or participation in other securities, of the Company
are outstanding, if the requirements for such exclusion set forth in TIA ss.
310(b)(1) are met.
Section 7.11. Preferential Collection of Claims Against
Company. The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein. The
Trustee hereby waives any right to set off any claim that it may have against
the Company in any capacity (other than as Trustee and Paying Agent) against any
of the assets of the Company held by the Trustee; provided, however, that if the
Trustee is or becomes a lender of any other Indebtedness permitted hereunder to
be pari passu with the Notes, then such waiver shall not apply to the extent of
such Indebtedness.
Section 7.12. Authorization to Enter Into Intercreditor and
Subordination Agreement. The Trustee hereby consents and approves the terms of
the Intercreditor and Subordination Agreement and is so authorized to enter into
such agreement. The Trustee agrees to be bound by the terms of such
Intercreditor and Subordination Agreement and is so authorized to enter into any
replacement intercreditor and subordination agreement substantially in the form
of the Intercreditor and Subordination Agreement.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.02 or Section 8.03 hereof be applied to all
outstanding Notes upon compliance with the conditions set forth below in this
Article 8.
Section 8.02. Legal Defeasance and Discharge. Upon the
Company's exercise under Section 8.01 hereof of the option applicable to this
Section 8.01, the Company shall, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, be deemed to have been discharged from its
obligations with respect to all outstanding Notes and all obligations of the
Guarantors shall be deemed to have been discharged with respect to their
obligations under the Subsidiary Guarantees on the date the conditions set forth
below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal
Defeasance means that the Company and the Guarantors shall be deemed to have
paid and discharged the entire Indebtedness represented by
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the outstanding Notes and Subsidiary Guarantees, respectively, which shall
thereafter be deemed to be "outstanding" only for the purposes of Section 8.05
hereof and the other Sections of this Indenture referred to in (a) and (b)
below, and to have satisfied all its other obligations under such Notes and this
Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following clauses, which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of outstanding Notes to receive solely from
the trust fund described in Section 8.04 hereof, and as more fully set forth in
such Section, payments in respect of the principal of, premium, if any, interest
and Liquidated Damages, if any, on such Notes when such payments are due, (b)
the Company's obligations with respect to such Notes under Article 2 and Section
4.02 hereof, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations in connection therewith and (d)
this Article 8. Subject to compliance with this Article 8, the Company may
exercise its option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 hereof.
Section 8.03. Covenant Defeasance. Upon the Company's exercise
under Section 8.01 hereof of the option applicable to this Section 8.03, the
Company and each of the Guarantors shall, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, be released from their respective
obligations under the covenants set forth in Sections 4.03, 4.04(b), 4.05, 4.06,
4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19,
4.20, 4.21, 5.01(a)(iii) and 5.01(a)(v), but only with respect to the delivery
of an Officer's Certificate by the Company in accordance with Section 5.01(a)(v)
demonstrating compliance with Section 5.01(a)(iii), hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.04
are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.01 hereof, but,
except as specified above, the remainder of this Indenture and such Notes shall
be unaffected thereby. In addition, upon the Company's exercise under Section
8.01 hereof of the option applicable to this Section 8.03, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(a)(iii) through 6.01(a)(vii) hereof shall cease to operate and not
constitute Events of Default.
Section 8.04. Conditions to Legal Defeasance or Covenant
Defeasance. The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Notes:
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In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company shall irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Notes, cash in U.S.
dollars, non-callable Government Securities, or a combination thereof,
in such amounts as shall be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal
of, premium and Liquidated Damages, if any, and interest on the
outstanding Notes on the stated maturity or on the applicable
redemption date, as the case may be, and the Company shall specify
whether the Notes are being defeased to maturity or to a particular
redemption date;
(b) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel
reasonably acceptable to the Trustee confirming that (i) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling or (ii) since the date of this Indenture, 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, the Holders of the outstanding Notes shall not recognize
income, gain or loss for federal income tax purposes as a result of
such Legal Defeasance and shall be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have
been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes shall not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and shall
be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred;
(d) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that, (i) assuming no intervening bankruptcy
of the Company or any Guarantor between the date of deposit and the
123rd day following the deposit and assuming that no Holder is an
"insider" of the Company under applicable bankruptcy law, after the
123rd day following the deposit, the trust funds shall not be subject
to the effect of Section 547 of the United States Bankruptcy Code or
Section 15 of the New York Debtor and Creditor Law and (ii) the
creation of the defeasance trust does not violate the Investment
Company Act of 1940.
(e) if the Notes are to be redeemed prior to their Stated
Maturity, the Company shall have delivered to the Trustee irrevocable
instructions to redeem all of the Notes on the specified redemption
date;
(f) no Default or Event of Default shall have occurred and be
continuing either (i) on the date of such deposit, or (ii) insofar as
an Event of Default set forth in Section 6.01(h) shall have occurred
and be continuing, at any time in the period ending on the 123rd day
after the date of deposit;
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(g) 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;
(h) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of Notes over any
other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company or others;
and
(i) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent, including, without limitation, the conditions set
forth in this Section 8.04, provided for or relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.
Section 8.05. Deposited Money and Cash Equivalents to Be Held
in Trust; Other Miscellaneous Provisions. Subject to Section 8.06 hereof, all
money and non-callable Cash Equivalents (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.05, the "Trustee") pursuant to Section 8.04 hereof in
respect of the outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of such
Notes of all sums due and to become due thereon in respect of principal, premium
and Liquidated Damages, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or non-callable
Cash Equivalents deposited pursuant to Section 8.04(a) hereof or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or non-callable Cash Equivalents held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04 hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 8.06. Repayment to Company. Any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of, premium, if any, interest, or Liquidated Damages,
if any, on any Note and remaining unclaimed for two years after such principal,
and premium, if any, interest, or Liquidated Damages, if any, has become due and
payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note shall
thereafter, as a secured creditor, look only to the Company for payment thereof,
and all liability of the Trustee or
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such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in the New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining shall be repaid to the Company.
Section 8.07. Reinstatement. If the Trustee or Paying Agent is
unable to apply any United States dollars or non-callable Government Securities
in accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of, premium, if
any, or interest on any Note following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, without the consent of any
Holder of Notes, the Company, the Guarantors and the Trustee may amend or
supplement this Indenture or the Notes:
(a) to cure any ambiguity, defect, error or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(c) to provide for the assumption of the Company's or any
Guarantor's obligations to Holders of Notes in the case of a merger or
consolidation or sale of all or substantially all of the assets of the
Company or of such Guarantor;
(d) to make any change that would provide any additional
rights or benefits to the Holders of Notes or that does not adversely
affect the legal rights under this Indenture of any such Holder;
(e) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the Trust
Indenture Act;
(f) to comply with the requirements of Section 4.17; or
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(g) to evidence and provide for the acceptance of appointment
by a successor Trustee.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 7.02(b) hereof stating that such amended or supplemental
Indenture complies with this Section 9.01, the Trustee shall join with the
Company in the execution of any amended or supplemental Indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into such amended or supplemental Indenture that
affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.02. With Consent of Holders of Notes. Except as
provided below in this Section 9.02, the Company, the Guarantors and the Trustee
may amend or supplement this Indenture (including Sections 3.09, 4.10 and 4.14
hereof) or the Notes with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding voting as a single class
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, the Notes), and, subject to Sections
6.04 and 6.07 hereof, any existing Default or Event of Default or compliance
with any provision of this Indenture or the Notes may be waived with the consent
of the Holders of a majority in principal amount of the then outstanding Notes
voting as a single class (including, without limitation, consents obtained in
connection with a tender offer or exchange offer for, the Notes). Without the
consent of the Holders of at least 75% in aggregate principal amount of the
Notes then outstanding voting as a single class (including consents obtained in
connection with a purchase of, or tender offer or exchange offer for, the
Notes), no waiver or amendment to this Indenture may make any change to Article
10 hereof that adversely affects the rights of any Holder of Notes. Section 2.08
hereof shall determine which Notes are considered to be "outstanding" for
purposes of this Section 9.02.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid,
and upon receipt by the Trustee of the documents described in Section 7.02(b)
hereof stating that any such amended or supplemental Indenture complies with
this Section 9.02, the Trustee shall join with the Company in the execution of
such amended or supplemental Indenture unless such amended or supplemental
Indenture directly affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such amended or supplemental
Indenture.
It shall not be necessary for the consent of the Holders of
Notes under this Section 9.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such
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notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such amended or supplemental Indenture or waiver.
Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding voting as a
single class may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Notes. However, without the consent of
each Holder affected, an amendment or waiver under this Section 9.02 may not
(with respect to any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of
any Note or alter the provisions, or waive any payment, with respect to
the redemption of the Notes;
(c) reduce the rate of or change the time for payment of
interest on any Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest or Liquidated Damages, if
any, on the Notes (except a rescission of acceleration of the Notes by
the Holders of at least a majority in aggregate principal amount of the
Notes and a waiver of the payment default that resulted from such
acceleration);
(e) make any Note payable in money other than U.S. dollars;
(f) amend, change or modify the obligation of the Company to
make and consummate an Asset Sale Offer with respect to any Asset Sale
in accordance with Section 4.10 after the obligation to make such an
Asset Sale Offer has arisen, or the obligation of the Company to make
and consummate a Change of Control Offer in the event of a Change of
Control in accordance with Section 4.14 after such Change of Control
has occurred, including, in each case, amending, changing or modifying
any definition relating thereto;
(g) except as otherwise permitted under Section 5.01 and
Article 11, consent to the assignment or transfer by the Company or any
Guarantor of any of their rights or obligations under this Indenture;
(h) make any change in Section 6.04 or 6.07 hereof or in the
foregoing amendment and waiver provisions;
(i) release any Guarantor from any of its obligations under
its Note Guarantee of these Notes or this Indenture, except in
accordance with the terms of this Indenture; or
(j) impair the right to institute suit for the enforcement of
any payment on or with respect to the Notes or the Note Guarantees.
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Section 9.03. Compliance with Trust Indenture Act. Every
amendment or supplement to this Indenture or the Notes shall be set forth in a
amended or supplemental Indenture that complies with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents. Until an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
of a Note is a continuing consent by such Holder of a Note and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder of a Note or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05. Notation on or Exchange of Notes. The Trustee
may place an appropriate notation about an amendment, supplement or waiver on
any Note thereafter authenticated. The Company in exchange for all Notes may
issue and the Trustee shall, upon receipt of an Authentication Order,
authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 9.06. Trustee to Sign Amendments, Etc. The Trustee
shall sign any amended or supplemental indenture or Note authorized pursuant to
this Article 9 if the amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. The Company may not
sign an amendment or supplemental indenture or Note until the Board of Directors
approves it. In executing any amended or supplemental indenture or Note, the
Trustee shall be entitled to receive and (subject to Section 7.01 hereof) shall
be fully protected in relying upon, in addition to the documents required by
Section 11.04 hereof, an Officer's Certificate and an Opinion of Counsel stating
that the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
execute any such amendment, supplement or waiver which affects the Trustee's
rights, duties or immunities under this Indenture or otherwise. In signing any
amendment, supplement or waiver, the Trustee shall be entitled to receive an
indemnity reasonably satisfactory to it.
ARTICLE 10
SUBORDINATION
Section 10.01. Agreement to Subordinate. The Company agrees,
and each Holder by accepting a Note agrees, that the Indebtedness evidenced by
the Notes is subordinated in right of payment, to the extent and in the manner
provided in this Article 10, to the prior payment in full in cash or Cash
Equivalents of all Senior Debt (whether outstanding on the date hereof or
hereafter created, incurred, assumed or guaranteed), and that the subordination
is for the benefit of the holders of Senior Debt.
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Section 10.02. Liquidation; Dissolution; Bankruptcy. The
holders of Senior Debt of the Company shall be entitled to receive payment in
full in cash or Cash Equivalents of all Obligations due in respect of Senior
Debt of the Company (including interest after the commencement of any bankruptcy
proceeding at the rate specified in the applicable Senior Debt of the Company
whether or not an allowed claim) before the Holders of Notes shall be entitled
to receive any payment with respect to the Notes (except that Holders of Notes
may receive and retain Permitted Junior Securities and payments made from the
trust pursuant to Article 8 hereof), in the event of any distribution to
creditors of the Company in connection with (a) any liquidation or dissolution
of the Company; (b) any bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to the Company or its property; (c) any assignment
by the Company for the benefit of its creditors; or (d) any marshaling of the
Company's assets and liabilities.
Section 10.03. Default on Designated Senior Debt. The Company
shall not make any payment in respect of the Notes (except in Permitted Junior
Securities or from the trust pursuant to Article 8 hereof) if:
(a) a payment default on Designated Senior Debt of the Company
occurs and is continuing; or
(b) any other default (a "nonpayment default") occurs and is
continuing on any series of Designated Senior Debt of the Company that
permits holders of that series of Designated Senior Debt of the Company
to accelerate its maturity and the Trustee receives a notice of such
default (a "Payment Blockage Notice") from (i) with respect to
Designated Senior Debt incurred pursuant to the Credit Agreement, the
agent for the lenders thereunder and (ii) with respect to any other
Designated Senior Debt, the holders of a majority of such Designated
Senior Debt.
(c) Payments on the Notes may and shall be resumed:
(i) in the case of a payment default on Designated
Senior Debt of the Company, upon the date on which such
default is cured or waived; and
(ii) in case of a nonpayment default, the earlier of
the date on which such default is cured or waived or 179 days
after the date on which the applicable Payment Blockage Notice
is received, unless the maturity of such Designated Senior
Debt of the Company has been accelerated.
(d) No new Payment Blockage Notice may be delivered unless and
until:
(i) 360 days have elapsed since the delivery of the
immediately prior Payment Blockage Notice; and
(ii) all scheduled payments of principal, interest
and premium and Liquidated Damages, if any, on the Notes that
have come due have been paid in full in cash.
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(e) No nonpayment default that existed or was continuing on
the date of delivery of any Payment Blockage Notice to the Trustee
shall be, or be made, the basis for a subsequent Payment Blockage
Notice unless such default has been cured or waived for a period of not
less than 90 days.
(f) If the Trustee or any Holder of the Notes receives a
payment in respect of the Notes (except in Permitted Junior Securities
or from the trust described under Article 8) when (i) the payment is
prohibited by this Article 10 and (ii) the Trustee or the Holder has
actual knowledge that the payment is prohibited the Trustee or the
Holder, as the case may be, shall hold the payment in trust for the
benefit of the holders of Senior Debt of the Company. Upon the proper
written request of the holders of Senior Debt of the Company, the
Trustee or the Holder, as the case may be, shall deliver the amounts in
trust to the holders of Senior Debt of the Company or their proper
representative.
Section 10.04. Acceleration of Securities. If payment of the
Securities is accelerated because of an Event of Default, the Company and the
Trustee shall promptly notify holders of Senior Debt of the acceleration.
Section 10.05. When Distribution Must Be Paid Over. In the
event that the Trustee or any Holder receives any payment of any Obligations
with respect to the Notes (except in Permitted Junior Securities or from the
trust pursuant to Article 8 hereof) at a time when the Trustee or such Holder,
as applicable, has actual knowledge that such payment is prohibited by Article
10 hereof, such payment shall be held by the Trustee or such Holder, as
applicable, in trust for the benefit of, and shall be paid forthwith over and
delivered, upon written request, to the holders of Senior Debt as their
interests may appear or their Representative under this Indenture or other
agreement (if any) pursuant to which Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of all
Obligations with respect to Senior Debt remaining unpaid to the extent necessary
to pay such Obligations in full in accordance with their terms, after giving
effect to any concurrent payment or distribution to or for the holders of Senior
Debt.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt, and shall not be liable to any
such holders if the Trustee shall pay over or distribute to or on behalf of
Holders or the Company or any other Person money or assets to which any holders
of Senior Debt shall be entitled by virtue of this Article 10, except if such
payment is made as a result of the willful misconduct or gross negligence of the
Trustee.
Section 10.06. Notice by the Company. The Company shall
promptly notify the Trustee and the Paying Agent in writing of any facts known
to the Company that would cause a payment of any Obligations with respect to the
Notes to violate this Article 10, but failure to give such notice shall not
affect the subordination of the Notes to the Senior Debt as provided in this
Article 10.
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Section 10.07. Subrogation. After all Senior Debt is paid in
full and until the Notes are paid in full, Holders of Notes shall be subrogated
(equally and ratably with all other Indebtedness pari passu with the Notes) to
the rights of holders of Senior Debt to receive distributions applicable to
Senior Debt to the extent that distributions otherwise payable to the Holders of
Notes have been applied to the payment of Senior Debt. A distribution made under
this Article 10 to holders of Senior Debt that otherwise would have been made to
Holders of Notes is not, as between the Company and Holders, a payment by the
Company on the Notes.
Section 10.08. Relative Rights. This Article 10 defines the
relative rights of Holders of Notes and holders of Senior Debt. Nothing in this
Indenture shall:
(a) impair, as between the Company and Holders of Notes, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Notes in accordance with their terms;
(b) affect the relative rights of Holders of Notes and
creditors of the Company other than their rights in relation to holders
of Senior Debt; or
(c) prevent the Trustee or any Holder of Notes from exercising
its available remedies upon a Default or Event of Default, subject to
the rights of holders and owners of Senior Debt to receive
distributions and payments otherwise payable to Holders of Notes.
If the Company fails because of this Article 10 to pay
principal of or interest on a Note on the due date, the failure is still a
Default or Event of Default.
Section 10.09. Subordination May Not Be Impaired by the
Company. No right of any holder of Senior Debt to enforce the subordination of
the Indebtedness evidenced by the Notes shall be impaired by any act or failure
to act by the Company or any Holder or by the failure of the Company or any
Holder to comply with this Indenture.
Section 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior
Debt, the distribution may be made and the notice given to their Representative.
Upon any payment or distribution of assets of the Company
referred to in this Article 10, the Trustee and the Holders of Notes shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders of Notes for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of the Senior Debt and
other Indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 10.
Section 10.11. Rights of Trustee and Paying Agent.
Notwithstanding this Article 10 or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment or distribution by the Trustee, and the
Trustee and the Paying Agent may continue to make payments on the Notes,
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unless the Trustee shall have received at its Corporate Trust Office at least
five Business Days prior to the date of such payment written notice of facts
that would cause the payment of any Obligations with respect to the Notes to
violate this Article 10. Only the Company or a Representative may give the
notice. Nothing in this Article 10 shall impair the claims of, or payments to,
the Trustee under or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights.
Section 10.12. Authorization to Effect Subordination. Each
Holder of Notes, by the Holder's acceptance thereof, authorizes and directs the
Trustee on such Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article 10, and
appoints the Trustee to act as such Holder's attorney-in-fact for any and all
such purposes. If the Trustee does not file a proper proof of claim or proof of
debt in the form required in any proceeding referred to in Section 6.09 hereof
at least 30 days before the expiration of the time to file such claim, the
lenders under the Credit Agreement are hereby authorized to file an appropriate
claim for and on behalf of the Holders of the Notes.
ARTICLE 11
NOTE GUARANTEES
Section 11.01. Guarantee. Subject to this Article 11 each of
the Guarantors hereby, jointly and severally, unconditionally guarantees to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Notes or the obligations of the Company hereunder or
thereunder, that:
(a) (i) the principal of and interest on the Notes will be
promptly paid in full when due, whether at maturity, by acceleration, redemption
or otherwise, and interest on the overdue principal of and interest on the
Notes, if any, if lawful (subject in all cases to any applicable grace period
provided herein), and all other obligations of the Company to the Holders or the
Trustee hereunder or thereunder will be promptly paid in full or performed, all
in accordance with the terms hereof and thereof; and (ii) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same immediately.
Each Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.
(b) The Guarantors hereby agree that their obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to this Indenture, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or
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equitable discharge or defense of a Guarantor. Subject to Section 6.06 hereof
and to the extent permitted by applicable law, each Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenant that this Note Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and this Indenture.
(c) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid by either to the Trustee or such Holder, this
Note Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect.
(d) Each Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
Each Guarantor further agrees that, as between the Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
for the purposes of this Note Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Article 6 hereof, such obligations (whether or
not due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of this Note Guarantee. The Guarantors shall have the right to
seek contribution from any non-paying Guarantor so long as the exercise of such
right does not impair the rights of the Holders under the Note Guarantee.
Section 11.02. Subordination of Note Guarantee. The
Obligations of each Guarantor under its Note Guarantee pursuant to this Article
11 shall be junior and subordinated to the Guarantee of any Senior Debt of such
Guarantor on the same basis as the Notes are junior and subordinated to Senior
Debt of the Company. For the purposes of the foregoing sentence, the Trustee and
the Holders shall have the right to receive and/or retain payments by any of the
Guarantors only at such times as they may receive and/or retain payments in
respect of the Notes pursuant to this Indenture, including Article 10 hereof.
Section 11.03. Limitation on Guarantor Liability. Each
Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it
is the intention of all such parties that the Note Guarantee of such Guarantor
not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar federal or state law to the extent applicable to any Note
Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and
the Guarantors hereby irrevocably agree that the obligations of such Guarantor
shall, after giving effect to such maximum amount and all other contingent and
fixed liabilities of such Guarantor that are relevant under such laws, and after
giving effect to any collections from, rights to receive contribution from or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 11, result in the
obligations of such Guarantor under its Note Guarantee not constituting a
fraudulent transfer or conveyance.
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Section 11.04. Execution and Delivery of Note Guarantee. To
evidence its Note Guarantee set forth in Section 11.01, each Guarantor hereby
agrees that a notation of such Note Guarantee substantially in the form included
in Exhibit E attached hereto shall be endorsed by an Officer of such Guarantor
on each Note authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of such Guarantor by its President or one of its
Vice Presidents.
Each Guarantor hereby agrees that its Note Guarantee set forth
in Section 11.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
If an Officer whose signature is on this Indenture or on the
Note Guarantee no longer holds that office at the time the Trustee authenticates
the Note on which a Note Guarantee is endorsed, the Note Guarantee shall be
valid nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Note
Guarantee set forth in this Indenture on behalf of the Guarantors.
If required by Section 4.21 hereof, the Company shall cause
certain of its Subsidiaries to execute supplemental indentures to this Indenture
in the form attached hereto as Exhibit F and Note Guarantees in accordance with
Section 4.21 hereof and this Article 11, to the extent applicable.
Section 11.05. Guarantors May Consolidate, Etc., on Certain
Terms. Except as otherwise provided in Section 11.06, a Guarantor may not sell
or otherwise dispose of all or substantially all of its assets, or consolidate
with or merge with or into (whether or not such Guarantor is the surviving
Person) another Person unless:
(a) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(b) either:
(i) the Person acquiring the property in any such
sale or disposition or the Person formed by or surviving any
such consolidation or merger is a corporation, organized or
existing under (i) the laws of the United States, any state
thereof or the District of Columbia or (ii) the laws of the
same jurisdiction as that Guarantor and, in each case, assumes
all the obligations of that Guarantor under this Indenture,
its Note Guarantee and the Registration Rights Agreement
pursuant to a supplemental indenture satisfactory to the
Trustee; or
(ii) in the case of a Subsidiary Guarantor (and
except in the case of any consolidation or merger of a
Subsidiary Guarantor with or into Lovelace Health Systems,
Inc. as described in Section 11.06), such sale or other
disposition (A) complies with Section 4.10, including the
application of the Net Proceeds
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therefrom and (B) is to a Person that is not a Restricted
Subsidiary of the Company.
In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the Note Guarantee endorsed upon the Notes and the due and punctual
performance of all of the obligations and conditions of this Indenture to be
performed by a Guarantor, such successor Person shall succeed to and be
substituted for a Guarantor with the same effect as if it had been named herein
as a Guarantor. Such successor Person thereupon may cause to be signed any or
all of the Note Guarantees to be endorsed upon all of the Notes issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee. All the Note Guarantees so issued shall in all
respects have the same legal rank and benefit under this Indenture as the Note
Guarantees theretofore and thereafter issued in accordance with the terms of
this Indenture as though all of such Note Guarantees had been issued at the date
of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and
notwithstanding clauses (a) and (b) above, nothing contained in this Indenture
or in any of the Notes shall prevent any consolidation or merger of a Guarantor
with or into the Company or another Guarantor, or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.
Section 11.06. Releases Following Sale of Assets. Any
Guarantor shall be released and relieved of any obligations under its Note
Guarantee, (a) in connection with any sale of all of the Capital Stock of that
Guarantor (including by way of merger or consolidation) to a Person that is not
(either before or after giving effect to such transaction) a Restricted
Subsidiary of the Company, if the sale of all of such Capital Stock of that
Guarantor complies with Section 4.10 hereof, including the application of the
Net Proceeds therefrom; (b) in connection with the merger or consolidation of
AHS Albuquerque Regional Medical Center, LLC, AHS West Mesa Hospital, LLC, AHS
Albuquerque Rehabilitation Hospital, LLC, AHS Northeast Heights Hospital, LLC,
AHS Albuquerque Physician Group, LLC and Mesilla Valley Hospital with, or into,
Lovelace Health Systems, Inc., if (i) the surviving Person is an HMO Subsidiary
and is prohibited from providing a full and unconditional Guarantee of the
Notes; (ii) no such Subsidiary Guarantor has outstanding at the time of such
consolidation or merger any indebtedness other than Indebtedness that it would
otherwise be permitted to incur at such time as a Restricted Subsidiary that is
not a Subsidiary Guarantor under Section 4.08; and (iii) the Company complies
with Section 4.12; or (c) if the Company designated such Subsidiary Guarantor as
an Unrestricted Subsidiary in accordance with this Indenture.
Any Guarantor not released from its obligations under its Note
Guarantee shall remain liable for the full amount of principal of and interest
on the Notes and for the other obligations of any Guarantor under this Indenture
as provided in this Article Eleven.
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ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls. This Indenture is
subject to the provisions of the TIA that are required to be a part of this
Indenture, and shall, to the extent applicable, be governed by such provisions.
If any provision of this Indenture modifies any TIA provision that may be so
modified, such TIA provision shall be deemed to apply to this Indenture as so
modified. If any provision of this Indenture excludes any TIA provision that may
be so excluded, such TIA provision shall be excluded from this Indenture.
The provisions of TIA ss.ss. 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
Section 12.02. Notices. Any notice or communication by the
Company, any Guarantor or the Trustee to the others is duly given if in writing
and delivered in Person or mailed by first class mail (registered or certified,
return receipt requested), telex, telecopier or overnight air courier
guaranteeing next day delivery, to the others' address.
If to the Company and/or any Guarantor:
Ardent Health Services, Inc.
One Burton Hills Boulevard
Suite 250
Nashville, TN 37215
Facsimile: 615-296-6384
Attention: General Counsel
with a copy to:
Ardent Health Services LLC
One Burton Hills Boulevard
Suite 250
Nashville, TN 37215
Facsimile: 615-296-6384
Attention: General Counsel
with a copy to:
Boult, Cummings, Conners & Berry, PLC
414 Union Street
Suite 1600
Nashville, TN 37219
Facsimile: 615-252-6300
Attention: Stephen Braun
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If to the Trustee:
U.S. Bank Trust National Association
60 Livingston Avenue
St. Paul, MN 55107-2292
Facsimile: 651- 495-8097
Attention: Corporate Trust Department
The Company, any Guarantor or the Trustee, by notice to the
others may designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: (i) at the time delivered by
hand, if personally delivered; (ii) five Business Days after being deposited in
the mail, postage prepaid, if mailed; (iii) when answered back, (iv) if telexed;
when receipt acknowledged, if telecopied; and (v) the next Business Day after
timely delivery to the courier, if sent by overnight air courier guaranteeing
next day delivery.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on the
register kept by the Registrar. Any notice or communication shall also be so
mailed to any Person described in TIA ss. 313(c), to the extent required by the
TIA. Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 12.03. Communication by Holders of Notes with Other
Holders of Notes. Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA ss. 312(c).
Section 12.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
any action under this Indenture (other than in connection with the Exchange
Offer contemplated by Section 2.06(f) or under Section 2.02 hereof unless
required by the TIA), the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied;
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.05 hereof) stating that,
94
in the opinion of such counsel, all such conditions precedent and
covenants have been satisfied; and
(c) where applicable, a certificate or opinion by an
independent certified public accountant satisfactory to the Trustee
that complies with TIA ss. 314(c).
Section 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA ss.
314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
Section 12.06. Rules by Trustee and Agents. The Trustee may
make reasonable rules for action by or at a meeting of Holders. The Registrar or
Paying Agent may make reasonable rules and set reasonable requirements for its
functions.
Section 12.07. No Personal Liability of Directors, Officers,
Employees and Stockholders. No director, officer, employee, agent, manager,
member, incorporator, stockholder or other equityholder of the Company or any
Guarantor, as such, shall have any liability for any obligations of the Company
or the Guarantors under the Notes, the Exchange Notes, the Note Guarantees, this
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to
waive liabilities under the federal securities laws.
Section 12.08. Governing Law. THE INTERNAL LAW OF THE STATE OF
NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE
NOTE GUARANTEES.
Section 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Company or its Subsidiaries or of any other Person. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
All agreements of each Guarantor in this Indenture shall bind its successors,
except as otherwise provided in Section 11.05.
95
Section 12.10. Successors. All agreements of the Company in
this Indenture and the Notes shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors. All agreements of each
Guarantor in this Indenture shall bind its successors, except as otherwise
provided in Section 11.05.
Section 12.11. Severability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 12.12. Counterpart Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
Section 12.13. Table of Contents, Headings, Etc. The Table of
Contents, Cross-Reference Table and Headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part of this Indenture and shall in no way modify or restrict
any of the terms or provisions hereof.
[Signatures on following page]
96
IN WITNESS WHEREOF, the parties have executed this Indenture as
of August 19, 2003.
ARDENT HEALTH SERVICES, INC.
By: /s/ W. Page Barnes
------------------------------------
Name: W. Page Barnes
Title: Senior Vice President and
Chief Financial Officer
ARDENT HEALTH SERVICES LLC
By: /s/ W. Page Barnes
------------------------------------
Name: W. Page Barnes
Title: Senior Vice President and
Chief Financial Officer
AHS ALBURQUERQUE HOLDINGS, LLC
AHS ALBUQUERQUE REGIONAL MEDICAL CENTER, LLC
AHS ALBUQUERQUE PHYSICIAN GROUP, LLC
AHS ALBUQUERQUE REHABILITATION HOSPITAL, LLC
AHS CUMBERLAND HOSPITAL, LLC
AHS KENTUCKY HOLDINGS, INC.
AHS KENTUCKY HOSPITALS, INC.
AHS LOUISIANA HOLDINGS, INC.
AHS LOUISIANA HOSPITALS, INC.
AHS MANAGEMENT COMPANY, INC.
AHS MANAGEMENT SERVICES OF NEW JERSEY, LLC
AHS NEW MEXICO HOLDINGS, INC.
AHS NORTHEAST HEIGHTS HOSPITAL, LLC
AHS RESEARCH AND REVIEW, LLC
AHS SAMARITAN HOSPITAL, LLC
AHS S.E.D. MEDICAL LABORATORIES, INC.
AHS SUMMIT HOSPITAL, LLC
AHS WEST MESA HOSPITAL, LLC
ARDENT MEDICAL SERVICES, INC.
BEHAVIORAL HEALTHCARE CORPORATION
BHC ALHAMBRA HOSPITAL, INC.
BHC BELMONT PINES HOSPITAL, INC.
BHC CEDAR CREST RTC, INC.
BHC CEDAR VISTA HOSPITAL, INC.
BHC CLINICAS DEL ESTE HOSPITAL, INC.
BHC COLUMBUS HOSPITAL, INC.
BHC FAIRFAX HOSPITAL, INC.
BHC FORT LAUDERDALE HOSPITAL, INC.
BHC FOX RUN HOSPITAL, INC.
BHC FREEMONT HOSPITAL, INC.
BHC GULF COAST MANAGEMENT GROUP, INC.
BHC HEALTH SERVICES OF NEVADA, INC.
BHC HERITAGE OAKS HOSPITAL, INC.
BHC HOSPITAL HOLDINGS, INC.
BHC INTERMOUNTAIN HOSPITAL, INC.
BHC LEBANON HOSPITAL, INC.
BHC MANAGEMENT HOLDINGS, INC.
BHC MANAGEMENT SERVICES, LLC
BHC MANAGEMENT SERVICES OF INDIANA, LLC
BHC MANAGEMENT SERVICES OF KENTUCKY, LLC
BHC MANAGEMENT SERVICES OF NEW MEXICO, LLC
BHC MANAGEMENT SERVICES OF PENNSYLVANIA, LLC
BHC MANAGEMENT SERVICES OF STREAMWOOD, LLC
BHC MEADOWS PARTNER, INC.
BHC MILLWOOD HOSPITAL, INC.
BHC MONTEVISTA HOSPITAL, INC.
BHC NORTHWEST PSYCHIATRIC HOSPITAL, LLC
BHC OF INDIANA, GENERAL PARTNERSHIP
BHC OF NORTHERN INDIANA, INC.
BHC PACIFIC GATEWAY HOSPITAL, INC.
BHC PACIFIC SHORES HOSPITAL, INC.
BHC PACIFIC VIEW RTC, INC.
BHC PHYSICIAN SERVICES OF KENTUCKY, LLC
BHC PINNACLE POINTE HOSPITAL, INC.
BHC PROPERTIES, INC.
BHC ROSS HOSPITAL, INC.
BHC SAN JUAN CAPESTRANO HOSPITAL, INC.
BHC SIERRA VISTA HOSPITAL, INC.
BHC SPIRIT OF ST. LOUIS HOSPITAL, INC.
BHC STREAMWOOD HOSPITAL, INC.
BHC VALLE VISTA HOSPITAL, INC.
BHC VISTA DEL MAR HOSPITAL, INC.
BHC WINDSOR HOSPITAL, INC.
BLOOMINGTON MEADOWS, G.P.
COLUMBUS HOSPITAL, LLC
COMMUNITY PSYCHIATRIC CENTERS OF TEXAS, INC.
INDIANA PSYCHIATRIC INSTITUTES, INC.
LEBANON HOSPITAL, LLC
MESILLA VALLEY GENERAL PARTNERSHIP
MESILLA VALLEY HOSPITAL, INC.
MESILLA VALLEY MENTAL HEALTH ASSOCIATES, INC.
NORTHERN INDIANA HOSPITAL, LLC
VALLE VISTA, LLC
WILLOW SPRINGS, LLC
By: /s/ W. Page Barnes
------------------------------------------
Name: W. Page Barnes
Title: Senior Vice President
U.S. BANK TRUST NATIONAL ASSOCIATION,
as trustee
By: /s/ Frank P. Leslie, III
-------------------------------------
Name: Frank P. Leslie, III
Title: Vice President
EXHIBIT A
[Face of Note]
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS NOTE NOR THE GUARANTEES ENDORSED HEREON NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE GUARANTEES
ENDORSED HEREON BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED
HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON OF
THIS NOTE) (THE "RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE COMPANY
OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUSTEE'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) PRIOR TO
THE END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO THE
RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRANSFER AGENT. THIS LEGEND SHALL BE REMOVED UPON THE REQUEST
OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
[Additional Language for Regulation S Note]
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN).
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CUSIP 144A 03979PAA3
REGS U22168AA3
No. ________ **$_________**
ARDENT HEALTH SERVICES, INC.
10% Senior Subordinated Notes due 2013
Ardent Health Services, Inc. (the "Company"), for value received,
promises to pay to CEDE & Co., or its registered assigns, the principal sum of
[Amount of Note] $_________ Dollars on August 15, 2013.
Interest Payment Dates: February 15 and August 15 of each year, starting on
February 15, 2004
Record Dates: February 1 and August 1
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by
facsimile by its duly authorized officers.
ARDENT HEALTH SERVICES, INC.
By:
---------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
(Trustee's Certificate of Authentication)
This is one of the 10% Senior Subordinated Notes due 2013 referred to in the
within-mentioned Indenture.
Dated:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:
-------------------------------
Authorized Signatory
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[Reverse Side of Note]
ARDENT HEALTH SERVICES, INC.
10% Senior Subordinated Notes due 2013
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. Interest. The Company promises to pay interest on the principal
amount and premium, if any, of this Note at 10% per annum from the date hereof
until maturity and shall pay the Liquidated Damages, if any, payable pursuant to
Section 5 of the Registration Rights Agreement referred to below. The Company
shall pay interest and Liquidated Damages, if any, semi-annually on February 15
and August 15 of each year, or if any such day is not a Business Day, on the
next succeeding Business Day (each an "Interest Payment Date"). Interest on the
Notes shall accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from the date of issuance; provided that if there
is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided further that the first Interest
Payment Date shall be February 15, 2004. The Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at a rate
that is 1% per annum in excess of the rate then in effect; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Liquidated Damages (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest shall be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons who
are registered Holders of Notes at the close of business on the record date
immediately preceding the Interest Payment Date, even if such Notes are canceled
after such record date and on or before such Interest Payment Date, except as
provided in Section 2.12 of the Indenture with respect to defaulted interest.
The Notes shall be payable as to principal, premium and Liquidated Damages, if
any, and interest at the office or agency of the Company maintained for such
purpose within or without the City and State of New York, or, at the option of
the Company, payment of interest and Liquidated Damages, if any, may be made by
check mailed to the Holders at their addresses set forth in the register of
Holders, and provided that payment by wire transfer of immediately available
funds shall be required with respect to principal of and interest, premium and
Liquidated Damages on, all Global Notes and all other Notes the Holders of which
shall have provided wire transfer instructions to the Company or the Paying
Agent. Such payment shall be in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.
3. Paying Agent and Registrar. Initially, U.S. Bank Trust National
Association, the Trustee under the Indenture, shall act as Paying Agent and
Registrar. The
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Company may change any Paying Agent or Registrar without notice to any Holder.
The Company or any of its Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture dated as
of August 19, 2003 (the "Indenture") among the Company, the Guarantors and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended. The Notes are subject to all such terms, and Holders are referred to
the Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling. The Indenture
pursuant to which this Note is issued provides that an unlimited aggregate
principal amount of Additional Notes may be issued thereunder.
5. Optional Redemption. (a) Except as set forth in paragraphs 5 (b) and
(c) and paragraph 6 below, the Notes shall not be redeemable at the Company's
option prior to August 15, 2008. Thereafter, the Company may redeem all or a
part of these Notes, upon not less than 30 nor more than 60 days' notice, at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the
applicable redemption date, if redeemed during the twelve-month period beginning
on August 15 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2008.......................................... 105.000%
2009.......................................... 103.333%
2010.......................................... 101.667%
2011 and thereafter........................... 100.000%
(b) Notwithstanding the foregoing, at any time prior to August 15,
2006, the Company may on one or more occasions redeem up to 35% of the aggregate
principal amount of Notes originally issued under the Indenture at a redemption
price of 110.000% of the principal amount thereof, plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the redemption date, with
the net cash proceeds of one or more Qualified Equity Offerings of the Company;
provided that at least 65% of the aggregate principal amount of Notes (including
Additional Notes, if any) remains outstanding immediately after the occurrence
of such redemption (excluding Notes held by the Parent, the Company or their
Subsidiaries); and such redemption shall occur within 90 days of the date of the
closing of such Qualified Equity Offering.
(c) Notwithstanding the foregoing, at any time prior to August 15,
2008, the Company may redeem all or part of the Notes upon not less than 30
days' nor more than 60 days' notice at a redemption price equal to the sum of
(i) 100% of the principal amount thereof, plus (ii) the Applicable Premium, plus
(iii) accrued and unpaid interest, if any, to the applicable date of redemption.
6. Repurchase at Option of Holder. (a) Upon the occurrence of a Change
of Control, each Holder of Notes shall have the right to require the Company to
repurchase all or any part (equal to $1,000 or an integral multiple thereof) of
such Holder's Notes pursuant to the
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offer described below (the "Change of Control Offer") at an offer price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the date of purchase (the
"Change of Control Payment"). Within 30 days following any Change of Control,
the Company shall mail a notice to each Holder describing the transaction or
transactions that constitute the Change of Control and which shall be no earlier
than 30 days and no later than 60 days from the date such notice is mailed (the
"Change of Control Payment Date"), pursuant to the procedures required by the
Indenture and described in such notice;
(b) Within 360 days after the receipt of any Net Proceeds from an Asset
Sale, the Company may apply such Net Proceeds at its option: (i) to repay Senior
Debt and, if the Senior Debt being repaid is revolving credit Indebtedness, to
correspondingly reduce commitments with respect thereto; or (ii) to purchase
Replacement Assets (or enter into a binding agreement to purchase such assets so
long as such purchase is consummated within 90 days after the end of such
360-day period; or (iii) make a capital expenditure in or that is used or useful
in a Permitted Business. Pending the final applications of any such Net
Proceeds, the Company may temporarily reduce revolving credit borrowings or
otherwise invest such Net Proceeds in any manner that is not prohibited by the
Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the preceding paragraph will constitute "Excess Proceeds." When the
aggregate amount of Excess Proceeds exceeds $15.0 million, the Company will make
an offer (an "Asset Sale Offer") to all Holders of Notes and all holders of
other Indebtedness that is pari passu with the Notes containing provisions
similar to those set forth in the Indenture with respect to offers to purchase
with the proceeds of sales of assets to purchase the maximum principal amount of
Notes and such other pari passu Indebtedness that may be purchased out of the
Excess Proceeds at an offer price in cash equal to 100% of the principal amount
thereof plus accrued and unpaid interest and Liquidated Damages, if any, to the
date of purchase, and will be payable in cash. If any Excess Proceeds remain
after consummation of an Asset Sale Offer, the Company may use such Excess
Proceeds for any purpose not otherwise prohibited by the Indenture. If the
aggregate principal amount of Notes and such other pari passu Indebtedness
tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes and such other pari passu Indebtedness to be
purchased on a pro rata basis based on the principal amount of Notes and such
other pari passu Indebtedness tendered. Upon completion of each Asset Sale
Offer, the amount of Excess Proceeds shall be reset at zero.
7. Selection and Notice of Redemption If less than all of the Notes are
to be redeemed or purchased in an offer to purchase at any time, the Trustee
shall select the Notes to be redeemed or purchased among the Holders in
compliance with the requirements of the principal national securities exchange,
if any, on which the Notes are listed, or, if the Notes are not so listed, on a
pro rata basis, by lot or in accordance with any other method the Trustee shall
deem fair and appropriate. At least 30 days but not more than 60 days before a
redemption date, the Company shall mail or cause to be mailed, by first class
mail, a notice of redemption to each Holder whose Notes are to be redeemed at
its registered address. The notice shall identify the Notes to be redeemed and
shall state:(i) the redemption date; (ii) the redemption price; (iii) if any
Note is being redeemed in part, the portion of the principal amount of such Note
to be redeemed and that, after the redemption date upon surrender of such Note,
a new Note or Notes in principal amount equal to the unredeemed portion of the
original Note shall be issued in the name of the
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Holder thereof upon cancellation of the original Note; (iv) the name and address
of the Paying Agent; (v) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price and become due on the date
fixed for redemption; (vi) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to accrue on
and after the redemption date; (vii) the paragraph of the Notes and/or Section
of the Indenture pursuant to which the Notes called for redemption are being
redeemed; and (viii) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the
Notes.
8. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
9. Persons Deemed Owners. The registered Holder of a Note will be
treated as its owner for all purposes.
10. Amendment, Supplement and Waiver. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the then outstanding
Notes and Additional Notes, if any, voting as a single class, and any existing
default or compliance with any provision of the Indenture or the Notes may be
waived with the consent of the Holders of a majority in principal amount of the
then outstanding Notes and Additional Notes, if any, voting as a single class.
Without the consent of any Holder of a Note, the Indenture or the Notes may be
amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Company's obligations to Holders of
the Notes in case of a merger or consolidation or sale of all or substantially
all of the assets of the Company, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder, to
comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act or to allow any
Subsidiary to guarantee the Notes, to provide for the issuance of Additional
Notes in accordance with the limitations set forth in the Indenture, or to allow
any Guarantor to execute a supplemental indenture to the Indenture with respect
to the Notes.
11. Defaults and Remedies. In the case of an Event of Default arising
from certain events of bankruptcy or insolvency, with respect to the Company or
any of its Restricted Subsidiaries that is a Significant Subsidiary, all
outstanding Notes will become due and payable immediately without further action
or notice. If any other Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Notes may
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declare all the Notes to be due and payable immediately by notice in writing to
the Company specifying the Event of Default. Holders of the Notes may not
enforce the Indenture or the Notes except as provided in the Indenture. Subject
to certain limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under
the Indenture except a continuing Default or Event of Default in the payment of
interest, premium or Liquidated Damages on, or the principal of, the Notes.
In the case of any Event of Default occurring by reason of any willful
action or inaction taken or not taken by or on behalf of the Company with the
intention of avoiding payment of the premium that the Company would have had to
pay if the Company then had elected to redeem the Notes pursuant to Section 3.07
of the Indenture concerning optional redemption, an equivalent premium shall
also become and be immediately due and payable to the extent permitted by law
upon the acceleration of the Notes.
12. Trustee Dealings with Company. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
13. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Company or any
Guarantor, as such, shall have any liability for any obligations of the Company
or any Guarantor under the Notes, any Note Guarantees, the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such a
waiver is against public policy.
14. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
15. Additional Rights of Holders of Restricted Global Notes and
Restricted Certificated Notes. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the Registration Rights
Agreement, dated as of August 19, 2003, among the Company, the Guarantors and
the parties named on the signature pages thereof or, in the case of Additional
Notes, Holders of Restricted Global Notes and Restricted Definitive Notes shall
have the rights set forth in one or more registration rights agreements, if any,
among the Company, the Guarantors and the other parties thereto, relating to
rights given by the Company to the purchasers of Additional Notes (collectively,
the "Registration Rights Agreement").
16. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of
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redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
If to the Company and/or any Guarantor:
Ardent Health Services, Inc.
One Burton Hills Boulevard
Suite 250
Nashville, TN 37215
Facsimile: 615-296-6384
Attention: General Counsel
with a copy to:
Ardent Health Services LLC
One Burton Hills Boulevard
Suite 250
Nashville, TN 37215
Facsimile: 615-296-6384
Attention: General Counsel
with a copy to:
Boult, Cummings, Conners & Berry, PLC
414 Union Street
Suite 1600
Nashville, TN 37219
Facsimile: 615-252-6300
Attention: Stephen Braun
A-10
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's legal name)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
- --------------------------------------------------------------------------------
and irrevocably appoint
--------------------------------------------------------
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
- --------------------------------------------------------------------------------
Date: _______________
Your Signature:______________________
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee.*
* Participant is recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
[ ] [ ]
Section 4.10 Section 4.14
If you want to elect to have only part of the Note purchased
by the Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state
the amount you elect to have purchased: $________
Date: Your Signature:
--------- -------------------------
(Sign exactly as your name appears on
the Note)
Tax Identification No:
-----------------
Signature Guarantee.*
* Participant is recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-12
SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL NOTE
The following exchanges of a part of this Regulation S
Temporary Global Note for an interest in another Global Note or of other
Restricted Global Notes for an interest in this Regulation S Temporary Global
Note, have been made:
Principal Amount at
Amount of Decrease in Amount of Increase in Maturity Signature of
Principal Amount at Principal Amount at of this Global Note Authorized Officer
Maturity Maturity Following such of Trustee or
Date of Exchange of this Global Note of this Global Note decrease (or increase) Note Custodian
---------------- ------------------- ------------------- ---------------------- --------------
A-13
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Re: 10% Senior Subordinated Notes due 2013
Reference is hereby made to the Indenture, dated as of August
19 , 2003 (the "Indenture"), between Ardent Health Services, Inc., as issuer
(the "Company"), Ardent Health Services LLC (the "Parent"), The Subsidiary
Guarantors, as defined therein (the "Guarantors") and U.S. Bank Trust National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
______________, (the "Transferor") owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in
the principal amount of $___________ in such Note[s] or interests (the
"Transfer"), to __________ (the "Transferee"), as further specified in Annex A
hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
[ ] 1. CHECK IF TRANSFEREE SHALL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE 144A GLOBAL NOTE OR A CERTIFICATED NOTE PURSUANT TO RULE 144A.
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the United States Securities Act of 1933, as amended (the "Securities
Act"), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Certificated Note is being transferred to a Person that
the Transferor reasonably believed and believes is purchasing the beneficial
interest or Certificated Note for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and such
Person and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and
such Transfer is in compliance with any applicable blue sky securities laws of
any state of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Certificated Note shall be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the 144A Global Note and/or the
Certificated Note and in the Indenture and the Securities Act.
[ ] 2. CHECK IF TRANSFEREE SHALL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE REGULATION S GLOBAL NOTE OR A CERTIFICATED NOTE PURSUANT TO
REGULATION S. The Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor
hereby further certifies that (a) the Transfer is not being made to a person in
the United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (b) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (c) the transaction is not part
of a plan or scheme to evade the registration requirements of the Securities Act
and (d) if the proposed transfer is being made prior to the expiration of the
B-1
Restricted Period, the transfer is not being made to a U.S. Person or for the
account or benefit of a U.S. Person (other than an Initial Purchaser). Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Certificated Note shall be
subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Global Note and/or the Certificated Note and
in the Indenture and the Securities Act.
[ ] 3. CHECK AND COMPLETE IF TRANSFEREE SHALL TAKE DELIVERY
OF A BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A CERTIFICATED NOTE PURSUANT
TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Certificated Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
[ ] (a) such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
[ ] (b) such Transfer is being effected to the Company or a
subsidiary thereof;
or
[ ] (c) such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
[ ] (d) such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the Securities Act
and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted Certificated
Notes and the requirements of the exemption claimed, which certification is
supported by (i) a certificate executed by the Transferee in the form of Exhibit
D to the Indenture and (ii) if such Transfer is in respect of a principal amount
of Notes at the time of transfer of less than $250,000, an Opinion of Counsel
provided by the Transferor or the Transferee (a copy of which the Transferor has
attached to this certification), to the effect that such Transfer is in
compliance with the Securities Act. Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Certificated Note shall be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the IAI Global Note and/or
the Certificated Notes and in the Indenture and the Securities Act.
B-2
[ ] 4 CHECK IF TRANSFEREE SHALL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED CERTIFICATED NOTE.
[ ] (a) CHECK IF TRANSFER IS PURSUANT TO RULE 144. (a) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (b) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Certificated Note shall no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Certificated Notes and in the Indenture.
[ ] (b) CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (a) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (b) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Certificated Note shall no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Certificated Notes and in the Indenture.
[ ] (c) CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (a)
The Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State of the
United States and (b) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Certificated Note shall not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes or Restricted Certificated Notes and in the Indenture.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
[Insert Name of Transferor]
By:
-------------------------------
Name:
Title:
Dated:
----------, -----
B-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
[ ] (a) a beneficial interest in the:
(i) 144A Global Note (CUSIP _____), or
(ii) Regulation S Global Note (CUSIP ________), or
(iii) IAI Global Note (CUSIP _______); or
[ ] (b) a Restricted Certificated Note.
2. After the Transfer the Transferee shall hold:
[CHECK ONE]
[ ] (c) a beneficial interest in the:
(i) 144A Global Note (CUSIP ______), or
(ii) Regulation S Global Note (CUSIP ______), or
(iii) IAI Global Note (CUSIP _______); or
(iv) Unrestricted Global Note (CUSIP ________); or
[ ] (d) a Restricted Certificated Note; or
[ ] (e) an Unrestricted Certificated Note,
in accordance with the terms of the Indenture.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Re: 10% Senior Subordinated Notes due 2013
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of August
19 , 2003 (the "Indenture"), between Ardent Health Services, Inc., as issuer
(the "Company") and Ardent Health Services, LLC (the "Parent"), the Subsidiary
Guarantors named therein (the "Guarantors") and U.S. Bank Trust National
Association, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
____________, (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
$____________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED CERTIFICATED NOTES OR BENEFICIAL
INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED CERTIFICATED NOTES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE.
[ ] (a) CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
[ ] (b) CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED CERTIFICATED Note. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Certificated Note, the Owner hereby certifies (i) the Certificated
Note is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Certificated Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
C-1
[ ] (c) CHECK IF EXCHANGE IS FROM RESTRICTED CERTIFICATED NOTE
TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL Note. In connection with the
Owner's Exchange of a Restricted Certificated Note for a beneficial interest in
an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Certificated Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
[ ] (d) CHECK IF EXCHANGE IS FROM RESTRICTED CERTIFICATED NOTE
TO UNRESTRICTED CERTIFICATED NOTE. In connection with the Owner's Exchange of a
Restricted Certificated Note for an Unrestricted Certificated Note, the Owner
hereby certifies (i) the Unrestricted Certificated Note is being acquired for
the Owner's own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to Restricted
Certificated Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Unrestricted Certificated Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
2. EXCHANGE OF RESTRICTED CERTIFICATED NOTES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED CERTIFICATED NOTES OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES.
[ ] (a) CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED CERTIFICATED NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Certificated Note with an equal principal amount, the Owner hereby
certifies that the Restricted Certificated Note is being acquired for the
Owner's own account without transfer. Upon consummation of the proposed Exchange
in accordance with the terms of the Indenture, the Restricted Certificated Note
issued shall continue to be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Certificated Note and
in the Indenture and the Securities Act.
[ ] (b) CHECK IF EXCHANGE IS FROM RESTRICTED CERTIFICATED NOTE
TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner's Restricted Certificated Note for a beneficial interest
in the [CHECK ONE] 144A Global Note, Regulation S Global Note, IAI Global Note
with an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer and (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued shall be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the relevant Restricted Global Note and in
the Indenture and the Securities Act.
C-2
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
[Insert Name of Owner]
By:
-----------------------------
Name:
Title:
Dated:
-------------, --------
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Re: 10% Senior Subordinated Notes due 2013
Reference is hereby made to the Indenture, dated as of August
19 , 2003 (the "Indenture"), between Ardent Health Services, Inc., as issuer
(the "Company") and Ardent Health Services, LLC, the Subsidiary Guarantors named
therein, (the "Guarantors") and U.S. Bank Trust National Association, as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
In connection with our proposed purchase of $____________
aggregate principal amount of:
(a) a beneficial interest in a Global Note, or
(b) a Certificated Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or
any interest therein is subject to certain restrictions and conditions set forth
in the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we shall do so only (A) to the Company or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to you and to the
Company a signed letter substantially in the form of this letter and, if such
transfer is in respect of a principal amount of Notes, at the time of transfer
of less than $250,000, an Opinion of Counsel in form reasonably acceptable to
the Company to the effect that such transfer is in compliance with the
Securities Act, (D) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to the provisions of Rule
144(k) under the Securities Act or (F) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing the Certificated Note or beneficial interest in a Global Note
from us in a transaction meeting the requirements of clauses (A) through (E) of
this paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.
D-1
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we shall be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
shall bear a legend to the foregoing effect. We further understand that any
subsequent transfer by us of the Notes or beneficial interest therein acquired
by us must be effected through one of the Placement Agents.
4. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
5. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
[Insert Name of Accredited Investor]
By:
---------------------------------
Name:
Title:
Dated:
------------, -------
D-2
EXHIBIT E
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any
successor Person under the Indenture) has, jointly and severally,
unconditionally guaranteed, to the extent set forth in the Indenture and subject
to the provisions in the Indenture dated as of August 19, 2003 (the "Indenture")
among Ardent Health Services, Inc. (the "Company"), Ardent Health Services LLC
(the "Parent"), the Subsidiary Guarantors named therein and U.S. Bank Trust
National Association, as trustee (the "Trustee"), (a) the due and punctual
payment of the principal of, premium, if any, and interest on the Notes (as
defined in the Indenture), whether at maturity, by acceleration, redemption or
otherwise, the due and punctual payment of interest on overdue principal and
premium, and, to the extent permitted by law, interest, and the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee all in accordance with the terms of the Indenture and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that the same shall be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. The obligations of the Guarantors to the
Holders of Notes and to the Trustee pursuant to the Note Guarantee and the
Indenture are expressly set forth in Article Eleven of the Indenture and
reference is hereby made to the Indenture for the precise terms of the Note
Guarantee. Each Holder of a Note, by accepting the same, (a) agrees to and shall
be bound by such provisions, (b) authorizes and directs the Trustee, on behalf
of such Holder, to take such action as may be necessary or appropriate to
effectuate the subordination as provided in the Indenture and (c) appoints the
Trustee attorney-in-fact of such Holder for such purpose; provided, however,
that the Indebtedness evidenced by this Note Guarantee shall cease to be so
subordinated and subject in right of payment upon any defeasance of this Note in
accordance with the provisions of the Indenture.
E-1
IN WITNESS HEREOF, the Guarantors have caused this Notation of Guarantee to be
executed by a duly authorized officer.
[Name of Guarantor]
By:
---------------------------------
Name:
Title:
E-2
EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental Indenture (this "Supplemental Indenture"), dated
as of _____________, among __________________ (the "Guaranteeing Subsidiary"),
Ardent Health Services, Inc., a Delaware Corporation, (the "Company"), Ardent
Health Services LLC, a Delaware limited liability company, (the "Parent"), the
Subsidiary Guarantors (as defined in the Indenture referred to herein) and U.S.
Bank Trust National Association, as Trustee (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company, the Parent and the Guarantors have
heretofore executed and delivered to the Trustee an indenture (the "Indenture"),
dated as of August 19, 2003 providing for the issuance of an aggregate principal
amount of $225.0 million of 10% Senior Subordinated Notes due 2013 (the
"Notes");
WHEREAS, the Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary
shall unconditionally guarantee all of the Company's obligations under the Notes
and the Indenture on the terms and conditions set forth herein (the "Note
Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the
Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby
agrees as follows:
(a) Along with all other Guarantors, to jointly and severally
Guarantee to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of the Indenture, the Notes or the
obligations of the Company hereunder or thereunder, that:
(i) the principal of and interest on the Notes shall
be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the
overdue principal of and interest on the Notes, if any, if
lawful (subject in all cases to any applicable grace period
provided in the Indenture), and
F-1
all other obligations of the Company to the Holders or the
Trustee hereunder or thereunder shall be promptly paid in full
or performed, all in accordance with the terms hereof and
thereof; and
(ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, the
same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors
shall be jointly and severally obligated to pay the same
immediately.
(b) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes
or the Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance that
might otherwise constitute a legal or equitable discharge or defense of
a guarantor.
(c) Subject to Section 6.06 of the Indenture and to the extent
permitted by applicable law, each Guarantor hereby waives: diligence
presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require
a proceeding first against the Company, protest, notice and all demands
whatsoever.
(d) Subject to Section 6.06 of the Indenture and to the extent
permitted by applicable law, this Note Guarantee shall not be
discharged except by complete performance of the obligations contained
in the Notes and the Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors, or any custodian,
trustee, liquidator or other similar official acting in relation to
either the Company or the Guarantors, any amount paid by either to the
Trustee or such Holder, this Note Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any
right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article
6 of the Indenture for the purposes of this Note Guarantee,
notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and
(y) in the event of any declaration of acceleration of such obligations
as provided in Article 6 of the Indenture, such obligations (whether or
not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Note Guarantee.
F-2
(h) The Guarantors shall have the right to seek contribution
from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Note Guarantee.
(i) Pursuant to Section 11.03 of the Indenture, after giving
effect to any maximum amount and any other contingent and fixed
liabilities of the Guarantor that are relevant under any applicable
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the
extent applicable, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of
any other Guarantor in respect of the obligations of such other
Guarantor under Article 11 of the Indenture, the Trustee, the Holders
and the Guarantor irrevocably agree that the obligation of such
Guarantor shall result in the obligations of such Guarantor under its
Note Guarantee not constituting a fraudulent transfer or conveyance.
3. Subordination. The Obligations of the Guaranteeing
Subsidiary under its Note Guarantee pursuant to this Supplemental Indenture
shall be junior and subordinated to the Senior Debt of the Guaranteeing
Subsidiary on the same basis as the Notes are junior and subordinated to the
Senior Debt of the Company. For the purposes of the foregoing sentence, the
Trustee and the Holders shall have the right to receive and/or retain payments
by the Guaranteeing Subsidiary only at such time as they may receive and/or
retain payments in respect of the Notes pursuant to the Indenture, including
Article 10 thereof.
4. Execution and Delivery. Each Guaranteeing Subsidiary
agrees that the Note Guarantees shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such Note
Guarantee.
5. Guaranteeing Subsidiary May Consolidate, Etc., on Certain
Terms. Except as otherwise provided in Section 11.06 of the Indenture, a
Guarantor may not sell or otherwise dispose of all or substantially all of its
assets, or consolidate with or merge with or into (whether or not such Guarantor
is the surviving Person) another Person unless:
(a) immediately after giving effect to such transaction, no Default or
Event of Default exists; and
(b) either:
(i) the Person acquiring the property in any such
sale or disposition or the Person formed by or surviving any
such consolidation or merger is a corporation, organized or
existing under (i) the laws of the United States, any state
thereof or the District of Columbia or (ii) the laws of the
same jurisdiction as that Guarantor and, in each case, assumes
all the obligations of that Guarantor under the Indenture, its
Note Guarantee and the Registration Rights Agreement pursuant
to a supplemental indenture satisfactory to the Trustee; or
(ii) in the case of a Subsidiary Guarantor (and
except in the case of any consolidation or merger of a
Subsidiary Guarantor with or into Lovelace Health
F-3
Systems, Inc. as described in Section 11.06 of the Indenture),
such sale or other disposition (A) complies with Section 4.10
of the Indenture, including the application of the Net
Proceeds therefrom and (B) is to a Person that is not a
Restricted Subsidiary of the Company.
In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the Note Guarantee endorsed upon the Notes and the due and punctual
performance of all of the obligations and conditions of the Indenture to be
performed by a Guarantor, such successor Person shall succeed to and be
substituted for a Guarantor with the same effect as if it had been named herein
as a Guarantor. Such successor Person thereupon may cause to be signed any or
all of the Note Guarantees to be endorsed upon all of the Notes issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee. All the Note Guarantees so issued shall in all
respects have the same legal rank and benefit under the Indenture as the Note
Guarantees theretofore and thereafter issued in accordance with the terms of the
Indenture as though all of such Note Guarantees had been issued at the date of
the execution hereof.
Except as set forth in Articles 4 and 5 of the Indenture, and
notwithstanding clauses (a) and (b) above, nothing contained in the Indenture or
in any of the Notes shall prevent any consolidation or merger of a Guarantor
with or into the Company or another Guarantor, or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.
6. Releases. (a) Any Guarantor shall be released and relieved
of any obligations under its Note Guarantee, (i) in connection with any sale or
other disposition of all or substantially all of the assets of that Guarantor
(including by way of merger or consolidation) to a Person that is not (either
before or after giving effect to such transaction) a Restricted Subsidiary of
the Company, if the sale or other disposition of all or substantially all of the
assets of that Guarantor complies with Section 4.10 of the Indenture, including
the application of the Net Proceeds therefrom; (ii) in connection with any sale
of all of the Capital Stock of a Guarantor to a Person that is not (either
before or after giving effect to such transaction) a Restricted Subsidiary of
the Company, if the sale of all such Capital Stock of that Guarantor complies
with Section 4.10 of the Indenture, including the application of the Net
Proceeds therefrom; (iii) if the Company designates any Restricted Subsidiary
that is a Guarantor as an Unrestricted Subsidiary in accordance with the terms
hereof; or (iv) in connection with any sale of Capital Stock of a Guarantor to a
Person that results in the Guarantor no longer being a Subsidiary of the
Company, if the sale of such Capital Stock of that Guarantor complies with
Section 4.10, including the application of the Net Proceeds therefrom. Upon
delivery by the Company to the Trustee of an Officers' Certificate and an
Opinion of Counsel to the effect that such sale or other disposition was made by
the Company in accordance with the provisions of the Indenture, including
without limitation Section 4.10 hereof, the Trustee shall execute any documents
reasonably required in order to evidence the release of any Guarantor from its
obligations under its Note Guarantee.
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(b) Any Guarantor not released from its obligations under
its Note Guarantee shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any Guarantor under the
Indenture as provided in Article 10 of the Indenture.
7. No Recourse Against Others. No past, present or future
director, officer, employee, incorporator, stockholder or agent of the
Guaranteeing Subsidiary, as such, shall have any liability for any obligations
of the Company or any Guaranteeing Subsidiary under the Notes, any Note
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of the Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the SEC that such a waiver is against
public policy.
8. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF
NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
9. Counterparts. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
10. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
11. Trustee. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
Dated:
--------------, -----
[Guaranteeing Subsidiary]
By:
----------------------------------
Name:
Title:
[Name of Guarantor]
By:
----------------------------------
Name:
Title:
ARDENT HEALTH SERVICES, INC.
By:
----------------------------------
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
AS TRUSTEE
By:
----------------------------------
Name:
Title:
F-6
SCHEDULE I
SUBSIDIARY GUARANTORS
AHS Albuquerque Regional Medical Center, LLC
AHS Albuquerque Physician Group, LLC
AHS Albuquerque Rehabilitation Hospital, LLC
AHS Cumberland Hospital, LLC
AHS Kentucky Holdings, Inc.
AHS Kentucky Hospitals, Inc.
AHS Louisiana Holdings, Inc.
AHS Louisiana Hospitals, Inc.
AHS Management Company, Inc.
AHS Management Services of New Jersey, LLC
AHS New Mexico Holdings, Inc.
AHS Northeast Heights Hospital, LLC
AHS Research and Review, LLC
AHS Samaritan Hospital, LLC
AHS S.E.D. Medical Laboratories, Inc.
AHS Summit Hospital, LLC
AHS West Mesa Hospital, LLC
Ardent Medical Services, Inc.
Behavioral Healthcare Corporation
BHC Alhambra Hospital, Inc.
BHC Belmont Pines Hospital, Inc.
BHC Cedar Crest RTC, Inc.
BHC Cedar Vista Hospital, Inc.
BHC Clinicas Del Este Hospital, Inc.
BHC Columbus Hospital, Inc.
BHC Fairfax Hospital, Inc.
BHC Fort Lauderdale Hospital, Inc.
BHC Fox Run Hospital, Inc.
BHC Freemont Hospital, Inc.
BHC Gulf Coast Management Group, Inc.
BHC Health Services of Nevada, Inc.
BHC Heritage Oaks Hospital, Inc.
BHC Hospital Holdings, Inc.
BHC Intermountain Hospital, Inc.
BHC Lebanon Hospital, Inc.
BHC Management Holdings, Inc.
BHC Management Services, LLC
BHC Management Services of Indiana, LLC
BHC Management Services of Kentucky, LLC
BHC Management Services of New Mexico, LLC
BHC Management Services of Pennsylvania, LLC
BHC Management Services of Streamwood, LLC
BHC Meadows Partner, Inc.
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BHC Millwood Hospital, Inc.
BHC Montevista Hospital, Inc.
BHC Northwest Psychiatric Hospital, LLC
BHC of Indiana, General Partnership
BHC of Northern Indiana, Inc.
BHC Pacific Gateway Hospital, Inc.
BHC Pacific Shores Hospital, Inc.
BHC Pacific View RTC, Inc.
BHC Physician Services of Kentucky, LLC
BHC Pinnacle Pointe Hospital, Inc.
BHC Properties, Inc.
BHC Ross Hospital, Inc.
BHC San Juan Capestrano Hospital, Inc.
BHC Sierra Vista Hospital, Inc.
BHC Spirit of St. Louis Hospital, Inc.
BHC Streamwood Hospital, Inc.
BHC Valle Vista Hospital, Inc.
BHC Vista Del Mar Hospital, Inc.
BHC Windsor Hospital, Inc.
Bloomington Meadows, G.P.
Columbus Hospital, LLC
Community Psychiatric Centers of Texas, Inc.
Indiana Psychiatric Institutes, Inc.
Lebanon Hospital, LLC
Mesilla Valley General Partnership
Mesilla Valley Hospital, Inc.
Mesilla Valley Mental Health Associates, Inc.
Northern Indiana Hospital, LLC
Valle Vista, LLC
Willow Springs, LLC
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