Exhibit 4.1
[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 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.12 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
CUSIP [ ]
No. **$___________**
MEDCATH HOLDINGS CORP.
9 7/8% SENIOR NOTES DUE 2012
Issue Date:
MedCath Holdings Corp., a Delaware corporation (the "COMPANY", which
term includes any successor under the Indenture hereinafter referred to), for
value received, promises to pay to CEDE & CO., or its registered assigns, the
principal sum of [Amount of Note] ($ ) on July 15, 2012.
Interest Payment Dates: January 15 and July 15, commencing January 15, 2005.
Record Dates: January 1 and July 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.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
MEDCATH HOLDINGS CORP.
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
(Trustee's Certificate of Authentication)
This is one of the 9 7/8% Senior Notes due 2012 described in the
within-mentioned Indenture.
Dated:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: __________________________________
Authorized Signatory
[Reverse Side of Note]
MEDCATH HOLDINGS CORP.
9 7/8% Senior Notes due 2012
Capitalized terms used herein shall have the meanings assigned to
them in this Indenture referred to below unless otherwise indicated.
1. Interest. The Company promises to pay interest on the
principal amount of this Note at 9 7/8% per annum from the date hereof until
maturity. The Company shall pay interest semi-annually in arrears on January 15
and July 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 original 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 January 15, 2005. 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 (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) 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 2.13 of the
Indenture with respect to defaulted interest. The Notes shall be payable as to
principal and interest at the office or agency of the Company maintained for
such purpose in The City of New York maintained for such purposes, or, at the
option of the Company, payment of interest 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 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, the Trustee under the
Indenture shall act as Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company or any of
its Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture
dated as of July 7, 2004 ("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 paragraph 5(b)
below, the Company shall not have the option to redeem any Notes prior to July
15, 2008. On July 15, 2008 and thereafter, the Company shall have the option to
redeem the Notes, in whole or in part, upon not less than 30 nor more than 60
days' prior notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest thereon to
the applicable redemption date, if redeemed during the twelve-month period
beginning on July 15 of the years indicated below:
Year Percentage
- ----------------------------------- ----------
2008............................... 104.938%
2009............................... 102.469%
2010 and thereafter................ 100.000%
(b) Notwithstanding the foregoing, at any time prior to July 15,
2007, the Company may redeem up to 35% of the aggregate principal amount of
Notes issued under the Indenture (including any Additional Notes) at a
redemption price of 109.875% of the principal amount thereof, plus accrued and
unpaid interest to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest on the relevant interest
payment date, with the net cash proceeds of one or more Qualified Equity
Offerings; provided that (A) at least 65% of the aggregate principal amount of
the Notes issued under the Indenture (including any Additional Notes) remains
outstanding immediately after the occurrence of such redemption, excluding Notes
held by the Company and its Subsidiaries; and (B) the redemption must occur
within 60 days of the date of the closing of such Qualified Equity Offering.
6. Special Redemption. (a) Except as set forth in paragraph 7,
the Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
7. Repurchase at Option of Holder. (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
that Holder's Notes pursuant to an offer by the Company (a "CHANGE OF CONTROL
OFFER") at an offer price (a "CHANGE OF CONTROL PAYMENT") in cash equal to 101%
of the aggregate principal amount of Notes repurchased plus accrued and unpaid
interest thereon to the date of purchase. Within ten days following any Change
of Control, the Company shall mail a notice to each Holder describing the
transaction or transactions that constitute the Change of
Control and offering to repurchase Notes on a date (the "CHANGE OF CONTROL
PAYMENT DATE") specified in such notice, which date shall be no earlier than 30
days and no later than 60 days from the date such notice is mailed, 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 or any of its Restricted Subsidiaries may apply such Net
Proceeds at its option: to repay unsubordinated Secured Indebtedness, and, if
the Secured Indebtedness repaid is revolving credit Indebtedness, to
correspondingly reduce commitments with respect thereto; or to purchase
Replacement Assets or make a capital expenditure (or enter into a binding
agreement to purchase such assets or make such capital expenditure so long as
such purchase is consummated or such capital expenditure is made within 360 days
of the date of such binding agreement) in or that is used or useful in a
Permitted Business. Pending the final application 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 shall constitute "EXCESS PROCEEDS."
Within 30 days after the aggregate amount of Excess Proceeds exceeds $15.0
million, the Company shall 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 or any Note Guarantee 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. The offer
price in any Asset Sale Offer will be equal to 100% of the principal amount (or
100% of the accreted value thereof, in the case of Indebtedness sold at a
discount) of the Notes and such other pari passu Indebtedness plus accrued and
unpaid interest 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 or
any of its Restricted Subsidiaries 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 shall 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.
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 is not required to transfer or
exchange any Note selected for redemption. Also, the Company is not required to
transfer or exchange any Note for a period of 15 days
before a selection of Notes to be redeemed. Transfer may be restricted as
provided in the Indenture.
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 (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, the
Notes), and any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes (including, without
limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, the Notes). Without the consent of any Holder of a Note,
the Indenture or the Notes may be amended or supplemented to, among other
things, cure any ambiguity, defect or inconsistency, or to make any change that
does not adversely affect the legal rights under the Indenture of any such
Holder.
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, any Guarantor or any Significant Subsidiary of the Company (or any
Subsidiaries that together would constitute 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 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. 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 Trustee may withhold from Holders of the Notes notice of any Default or
Event of Default (except a Default or Event of Default relating to the payment
of principal, premium, interest) if it determines that withholding notice is in
their interest. Holders of a majority in principal amount of the then
outstanding Notes by notice to the Trustee may, on behalf of the Holders of all
of the Notes, rescind and annul a declaration of acceleration pursuant to
Section 6.02 of the Indenture, and its consequences, and waive any related
existing Default or Event of Default if certain conditions are satisfied.
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, an equivalent premium shall also become and be
immediately due and payable to the extent permitted by law upon the acceleration
of the Notes. If an Event of Default occurs during any time that the Notes are
outstanding, by reason of any willful action (or inaction) taken (or not taken)
by or on behalf of the Company with the intention of avoiding the prohibition on
redemption of the Notes, then the premium specified in
Section 3.07(b) of the Indenture shall also become 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 director, officer, employee,
incorporator or stockholder of the Company or any Guarantor, as such, shall have
any liability for any obligations of the Company or the Guarantors under the
Notes, the Indenture, the Note Guarantees 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. The waiver may not be
effective to waive liabilities under the federal securities laws.
14. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
15. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. 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.
16. Guarantee. The Company's obligations under the Notes are fully
and unconditionally guaranteed, jointly and severally, by the Guarantors.
17. Copies of Documents. The Company shall furnish to any Holder
upon written request and without charge a copy of the Indenture. Requests may be
made to:
If to the Company and/or any Guarantor:
MedCath Corporation
10720 Sikes Place
Suite 300
Charlotte, NC 28277
Facsimile: (704) 708-5035
Attention: J. Arthur Parker
With a copy to:
Moore & Van Allen PLLC
100 N. Tryon, Suite 400
Charlotte, NC 28202
Facsimile: (704) 331-1159
Attention: Hal A. Levinson, Esq.
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 in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
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 appropriate 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 face of this
Note)
Tax Identification No.:_____________________
Signature Guarantee*:__________________
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this 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
- ---------------- --------------------- --------------------- ---------------------- ------------------
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 and subject to the
provisions in the Indenture dated as of July 7, 2004 (the "INDENTURE") among
MedCath Holdings Corp., the other Guarantors (as defined in the Indenture) and
U.S. Bank National Association, a national banking corporation, 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, and the due and punctual
payment of interest on overdue principal premium, if any, and interest and on
the Notes, if lawful (subject in all cases to any applicable grace period
provided herein), 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 the Notes and (b) in case of any extension of time of payment
or renewal of any Notes or any of such other obligations, the 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.
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 Ten 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 and (b) appoints the
Trustee attorney-in-fact of such Holder for such purpose.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS HEREOF, each Guarantor has caused this Notation of
Guarantee to be signed manually or by facsimile by its duly authorized officer.
[NAME OF GUARANTOR]
By:______________________
Name:
Title: