EXECUTION COPY EXHIBIT 4.2
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MEDCATH HOLDINGS CORP.
9-7/8% SENIOR NOTES DUE 2012
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INDENTURE
DATED AS OF JULY 7, 2004
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U.S. BANK NATIONAL ASSOCIATION
TRUSTEE
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CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
----------- -----------------
310(a)(1)............................................................................. 7.10
(a)(2)............................................................................. 7.10
(a)(3)............................................................................. N.A.
(a)(4)............................................................................. N.A.
(a)(5)............................................................................. 7.10
(b)................................................................................ 7.10
(c)................................................................................ N.A.
311(a)................................................................................ 7.11
(b)................................................................................ 7.11
(c)................................................................................ N.A.
312(a)................................................................................ 2.06
(b)................................................................................ 12.03
(c)................................................................................ 12.03
313(a)................................................................................ 7.06
(b)(1)............................................................................. N.A.
(b)(2)............................................................................. 7.06, 7.07
(c)................................................................................ 7.06, 12.02
(d)................................................................................ 7.06
314(a)(4)............................................................................. 4.04, 12.05
(b)................................................................................ N.A.
(c)(1)............................................................................. N.A.
(c)(2)............................................................................. N.A.
(c)(3)............................................................................. N.A.
(d)................................................................................ N.A.
(e)................................................................................ 12.05
(f)................................................................................ N.A.
315(a)................................................................................ N.A.
(b)................................................................................ 7.05
(c)................................................................................ N.A.
(d)................................................................................ N.A.
(e)................................................................................ N.A.
316(a) (last sentence)................................................................ N.A.
(a)(1)(A).......................................................................... N.A.
(a)(1)(B).......................................................................... N.A.
(a)(2)............................................................................. N.A.
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* N.A. means not applicable.
This Cross-Reference Table is not part of the Indenture
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
----------- -----------------
(b)................................................................................ N.A.
(c)................................................................................ 12.14
317(a)(1)............................................................................. N.A.
(a)(2)............................................................................. N.A.
(b)................................................................................ N.A.
318(a)................................................................................ N.A.
(b)................................................................................ N.A.
(c)................................................................................ 12.01
TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions....................................................................................... 1
Section 1.02. Other Definitions................................................................................. 25
Section 1.03. Incorporation by Reference of Trust Indenture Act................................................. 25
Section 1.04. Rules of Construction............................................................................. 26
ARTICLE TWO
THE NOTES
Section 2.01. Form and Dating................................................................................... 26
Section 2.02. Execution and Authentication...................................................................... 27
Section 2.03. Methods of Receiving Payments on the Notes........................................................ 28
Section 2.04. Registrar and Paying Agent........................................................................ 28
Section 2.05. Paying Agent to Hold Money in Trust............................................................... 29
Section 2.06. Holder Lists...................................................................................... 29
Section 2.07. Transfer and Exchange............................................................................. 29
Section 2.08. Replacement Notes................................................................................. 41
Section 2.09. Outstanding Notes................................................................................. 42
Section 2.10. Treasury Notes.................................................................................... 42
Section 2.11. Temporary Notes................................................................................... 42
Section 2.12. Cancellation...................................................................................... 43
Section 2.13. Defaulted Interest................................................................................ 43
Section 2.14. CUSIP Numbers..................................................................................... 43
ARTICLE THREE
REDEMPTION AND OFFERS TO
PURCHASE
Section 3.01. Notices to Trustee................................................................................ 44
Section 3.02. Selection of Notes to Be Redeemed................................................................. 44
Section 3.03. Notice of Redemption.............................................................................. 44
Section 3.04. Effect of Notice of Redemption.................................................................... 45
Section 3.05. Deposit of Redemption Price....................................................................... 45
Section 3.06. Notes Redeemed in Part............................................................................ 46
Section 3.07. Optional Redemption............................................................................... 46
Section 3.08. Repurchase Offers................................................................................. 47
Section 3.09. Mandatory Redemption.............................................................................. 48
Section 3.10. Application of Trust Money........................................................................ 49
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ARTICLE FOUR
COVENANTS
Section 4.01. Payment of Notes.................................................................................. 49
Section 4.02. Maintenance of Office or Agency................................................................... 49
Section 4.03. Reports........................................................................................... 50
Section 4.04. Compliance Certificate............................................................................ 51
Section 4.05. Taxes............................................................................................. 51
Section 4.06. Stay, Extension and Usury Laws.................................................................... 52
Section 4.07. Restricted Payments............................................................................... 52
Section 4.08. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries......................... 56
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock........................................ 58
Section 4.10. Asset Sales....................................................................................... 60
Section 4.11. Transactions with Affiliates...................................................................... 62
Section 4.12. Liens............................................................................................. 63
Section 4.13. Business Activities............................................................................... 63
Section 4.14. Offer to Repurchase upon a Change of Control...................................................... 63
Section 4.15. [INTENTIONALLY LEFT BLANK]........................................................................ 64
Section 4.16. Designation of Restricted and Unrestricted Subsidiaries........................................... 64
Section 4.17. Payments for Consent.............................................................................. 66
Section 4.18. Guarantees........................................................................................ 66
Section 4.19. Sale and Leaseback Transactions................................................................... 66
Section 4.20. Limitation on Issuances and Sales of Equity Interests in Restricted Subsidiaries.................. 67
Section 4.21. Use of Net Proceeds from the Issuance of the Notes................................................ 67
ARTICLE FIVE
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets........................................................... 68
Section 5.02. Successor Corporation Substituted................................................................. 69
ARTICLE SIX
DEFAULTS AND REMEDIES
Section 6.01. Events of Default................................................................................. 69
Section 6.02. Acceleration...................................................................................... 71
Section 6.03. Other Remedies.................................................................................... 71
Section 6.04. Waiver of Past Defaults........................................................................... 72
Section 6.05. Control by Majority............................................................................... 72
Section 6.06. Limitation on Suits............................................................................... 73
Section 6.07. Rights of Holders of Notes to Receive Payment..................................................... 73
Section 6.08. Collection Suit by Trustee........................................................................ 73
Section 6.09. Trustee May File Proofs of Claim.................................................................. 73
Section 6.10. Priorities........................................................................................ 74
Section 6.11. Undertaking for Costs............................................................................. 74
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ARTICLE SEVEN
TRUSTEE
Section 7.01. Duties of Trustee................................................................................. 75
Section 7.02. Certain Rights of Trustee......................................................................... 76
Section 7.03. Individual Rights of Trustee...................................................................... 77
Section 7.04. Trustee's Disclaimer.............................................................................. 77
Section 7.05. Notice of Defaults................................................................................ 77
Section 7.06. Reports by Trustee to Holders of the Notes........................................................ 77
Section 7.07. Compensation and Indemnity........................................................................ 78
Section 7.08. Replacement of Trustee............................................................................ 78
Section 7.09. Successor Trustee by Merger, Etc.................................................................. 79
Section 7.10. Eligibility; Disqualification..................................................................... 80
Section 7.11. Preferential Collection of Claims Against Company................................................. 80
ARTICLE EIGHT
DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.......................................... 80
Section 8.02. Legal Defeasance and Discharge.................................................................... 80
Section 8.03. Covenant Defeasance............................................................................... 81
Section 8.04. Conditions to Legal or Covenant Defeasance........................................................ 81
Section 8.05. Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions..... 83
Section 8.06. Repayment to the Company.......................................................................... 83
Section 8.07. Reinstatement..................................................................................... 84
ARTICLE NINE
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes............................................................... 84
Section 9.02. With Consent of Holders of Notes.................................................................. 85
Section 9.03. Compliance with Trust Indenture Act............................................................... 87
Section 9.04. Revocation and Effect of Consents................................................................. 87
Section 9.05. Notation on or Exchange of Notes.................................................................. 87
Section 9.06. Trustee to Sign Amendments, Etc................................................................... 87
ARTICLE TEN
NOTE GUARANTEES
Section 10.01. Guarantee........................................................................................ 88
Section 10.02. Limitation on Guarantor Liability................................................................ 89
Section 10.03. Execution and Delivery of Note Guarantee......................................................... 89
Section 10.04. Guarantors May Consolidate, Etc., on Certain Terms............................................... 90
Section 10.05. Release of Guarantor............................................................................. 90
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ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
Section 11.01. Satisfaction and Discharge....................................................................... 91
Section 11.02. Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions.... 92
Section 11.03. Repayment to the Company......................................................................... 93
ARTICLE TWELVE
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.................................................................................... 96
Section 12.09. Consent to Jurisdiction.......................................................................... 96
Section 12.10. No Adverse Interpretation of Other Agreements.................................................... 96
Section 12.11. Successors....................................................................................... 96
Section 12.12. Severability..................................................................................... 96
Section 12.13. Counterpart Originals............................................................................ 96
Section 12.14. Acts of Holders.................................................................................. 96
Section 12.15. Benefit of Indenture............................................................................. 98
Section 12.16. Table of Contents, Headings, Etc................................................................. 98
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL
ACCREDITED INVESTOR
Exhibit E FORM OF NOTATION OF GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY
SUBSEQUENT GUARANTORS
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INDENTURE dated as of July 7, 2004 among MedCath Holdings Corp., a
Delaware corporation (the "COMPANY"), each of the Guarantors (as defined below)
listed on the signature pages hereto and U.S. Bank National Association, a
national banking corporation, as trustee.
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its 9-7/8% Senior
Notes due 2012 to be issued in one or more series as provided in this Indenture.
Each of the Guarantors have duly authorized the execution and delivery of this
Indenture to provide for a guarantee of the Notes and of certain of the
Company's obligations hereunder. All things necessary to make this Indenture a
valid agreement of the Company and the initial Guarantors, in accordance with
its terms, have been done.
The Company, the Guarantors and the Trustee (as defined below) agree
as follows for the benefit of each other and for the equal and ratable benefit
of the Holders (as defined below) of the 9-7/8% Senior Notes due 2012:
ARTICLE ONE
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
"144A GLOBAL NOTE" means a 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 at maturity of the Notes sold in reliance on Rule
144A.
"ACQUIRED DEBT" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other
Person is merged with or into, or 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
(2) 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 4.09 hereof.
"AFFILIATE" of any specified Person means (1) any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person or (2) 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,
1
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.
"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.
"APPROVED AFFILIATE AGREEMENTS" means agreements or arrangements
between the Company or any Restricted Subsidiary, on the one hand, and the
Parent or any Principal, on the other hand, (including transactions directly
with the Principals or indirectly through the Parent with the Principals)
described under the caption "Certain Transactions" in the Parent's definitive
Proxy Statement on Schedule 14A filed on January 28, 2004 with the Commission,
in each case as in effect as of the date of this Indenture, or any amendment or
substitute thereto (so long as the amended or substituted agreement is not more
disadvantageous to the Holders in any material respect than such agreement
immediately prior to such amendment or substitution) or any transaction
contemplated thereby.
"ASSET SALE" means:
(1) 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, will be governed by
Section 4.14 and/or Section 5.01 and not by Section 4.10; and
(2) the issuance of Equity Interests by any of the Company's Restricted
Subsidiaries or the sale by the Company or any Restricted Subsidiary
thereof 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:
(1) any single transaction or series of related transactions that
involves assets or Equity Interests having a Fair Market Value of
less than $2.0 million;
(2) a transfer of assets between or among the Company and its Restricted
Subsidiaries;
(3) an issuance of Equity Interests by a Restricted Subsidiary of the
Company to the Company or to another Restricted Subsidiary of the
Company;
(4) the sale or lease of equipment, inventory, accounts receivable or
other assets in the ordinary course of business;
2
(5) the sale or other disposition of Cash Equivalents;
(6) a Restricted Payment that is permitted by Section 4.07 of this
Indenture and;
(7) any sale or disposition of any property 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.
"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:
(1) with respect to a corporation, the board of directors of the
corporation;
(2) with respect to a partnership, the Board of Directors of the general
partner of the partnership; and
(3) with respect to any other Person, the board or committee of such
Person serving a similar function.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification.
"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.
3
"CAPITAL STOCK" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited);
and
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"CASH EQUIVALENTS" means:
(1) United States dollars;
(2) 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;
(3) 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;
(4) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (2) and (3)
above entered into with any financial institution meeting the
qualifications specified in clause (3) above;
(5) commercial paper having the highest rating obtainable from Moody's
or S&P and in each case maturing within six months after the date of
acquisition; and
(6) money market funds at least 95% of the assets of which constitute
Cash Equivalents of the kinds described in clauses (1) through (5)
of this definition.
"CHANGE OF CONTROL" means the occurrence of any of the following:
(1) 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;
(2) the adoption of a plan relating to the liquidation or dissolution of
the Company;
4
(3) 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;
(4) the first day on which a majority of the members of the Board of
Directors of the Company are not Continuing Directors; or
(5) the Company or the Parent consolidates with, or merges with or into,
any Person, or any Person consolidates with, or merges with or into
the Company or the Parent, in any such event pursuant to a
transaction in which any of the outstanding Voting Stock of the
Company, the Parent or such other Person is converted into or
exchanged for cash, securities or other property, other than any
such transaction where (A) the Voting Stock of the Company or the
Parent 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 (B) immediately after such
transaction, no "person" or "group" (as such terms are used in
Section 13(d) and 14(d) of the Exchange Act), other than the
Principals and their Related Parties, becomes, directly or
indirectly, the beneficial owner (as defined above) of 35% or more
of the voting power of the Voting Stock of the surviving or
transferee Person.
"CLEARSTREAM" means Clearstream Banking, societe anonyme, Luxembourg
(formerly Cedel Bank, societe anonyme), and any successor thereto.
"CLOSING DATE" means July 7, 2004.
"COMMISSION" means the United States Securities and Exchange
Commission.
"CONSOLIDATED CASH FLOW" means, with respect to any specified Person
for any period, the Consolidated Net Income of such Person for such period plus:
(1) 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
(2) 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 (other than Capital Lease
Obligations entered into in connection with a sale and leaseback
transaction), 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, but excluding any imputed interest
with respect to
5
Attributable Debt), to the extent that any such expense was deducted
in computing such Consolidated Net Income; plus
(3) depreciation, amortization (including amortization of goodwill and
other intangibles but excluding amortization of prepaid cash
expenses that were paid in a prior period) and other non-cash
expenses (excluding any such 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 Restricted Subsidiaries for
such period to the extent that such depreciation, amortization and
other non-cash expenses were deducted in computing such Consolidated
Net Income; plus
(4) pre-opening expenses relating to hospitals and related healthcare
facilities of such Person and its Restricted Subsidiaries for such
period as calculated and presented in accordance with GAAP on the
face of such Person's consolidated statements of operations, to the
extent deducted in computing such Consolidated Net Income, in
aggregate amount not to exceed $10.0 million during any four-quarter
period; plus
(5) minority interest, if any, deducted in computing such Consolidated
Net Income for such period as calculated and presented in accordance
with GAAP on the face of such Person's consolidated statements of
operations, less any cash distributions (by dividend or otherwise)
for such period by any Restricted Subsidiary of such Person to
holders of Equity Interests of such Restricted Subsidiary in their
capacity as such (other than to such Person or such Person's
Wholly-Owned Restricted Subsidiaries); less
(6) non-cash items increasing such Consolidated Net Income for such
period, other than the accrual of revenue consistent with past
practice,
in each case, on a consolidated basis and determined in accordance with
GAAP.
"CONSOLIDATED LEVERAGE RATIO" means, as of any date of
determination, the ratio of:
(1) the aggregate outstanding amount of Indebtedness of the
Company and its Restricted Subsidiaries as of such date of
determination on a consolidated basis (subject to the terms
described in the paragraph below) after giving pro forma
effect to the incurrence of the Indebtedness giving rise to
the need to make such calculation (including a pro forma
application of the use of proceeds therefrom), on such date
to:
(2) the Consolidated Cash Flow of the Company for the most recent
four quarters for which internal financial statements are
available immediately prior to such date of determination.
For purposes of this definition:
6
(1) Consolidated Cash Flow shall be calculated on a pro forma basis
after giving effect to (A) the incurrence of the Indebtedness of the
Company and its Restricted Subsidiaries (and the application of the
proceeds therefrom) giving rise to the need to make such calculation
and any incurrence (and the application of the proceeds therefrom)
or repayment of other Indebtedness on the date of determination, and
(B) any acquisition or disposition (including, without limitation,
any acquisition giving rise to the need to make such calculation as
a result of the Company or one of its Restricted Subsidiaries
(including any Person that becomes a Restricted Subsidiary as a
result of such acquisition) incurring, assuming or otherwise
becoming liable for Indebtedness) at any time on or subsequent to
the first day of the applicable four-quarter period specified in
clause (2) of the immediately preceding paragraph and on or prior to
the date of determination, as if such acquisition or disposition
(including the incurrence or assumption of any such Indebtedness and
also including any Consolidated Cash Flow associated with such
acquisition or disposition) occurred on the first day of such
four-quarter period;
(2) pro forma calculations shall be made in good faith by a responsible
financial or accounting officer of the Company consistent with
Article 11 of Regulation S-X, promulgated pursuant to the Securities
Act, as such Regulation may be amended;
(3) any Guarantee by the Company or the Parent of Indebtedness of Heart
Hospital of South Dakota LLC, in an aggregate principal amount (or
accreted value, as applicable) at any time outstanding not to exceed
$16.7 million, shall be excluded from Indebtedness for purposes of
clause (1) of the preceding paragraph; provided that no Default,
Event of Default or default under any Indebtedness of Heart Hospital
of South Dakota LLC has occurred and is continuing as of such date
of determination; and
(4) any unfunded commitments that constitute Existing Indebtedness and
that are not funded as of such date of determination shall be
included as Indebtedness.
"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:
(1) the Net Income (but not loss) of any Person that is not a Restricted
Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of
dividends or distributions paid in cash to the specified Person or a
Restricted Subsidiary thereof;
(2) the Net Income of any Restricted Subsidiary shall be excluded to the
extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is
not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any
agreement, instrument,
7
judgment, decree, order, statute, rule or governmental regulation
applicable to that Restricted Subsidiary or its equityholders;
(3) the Net Income of any Person acquired during the specified period
for any period prior to the date of such acquisition shall be
excluded;
(4) the cumulative effect of a change in accounting principles shall be
excluded; and
(5) notwithstanding clause (1) 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 or the Parent who:
(1) was a member of such Board of Directors on the date of this
Indenture; or
(2) was nominated for election or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who were
members of such Board at the time of such nomination or election.
"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, to be dated
the date of this Indenture, by and among the Company, the guarantors named
therein, Bank of America, N.A. and the other lenders named therein providing for
up to $100.0 million of revolving credit borrowings and $100.0 million in term
loan borrowings, including any related notes, Guarantees, collateral documents,
instruments and agreements executed in connection therewith, and in each case as
amended, modified, renewed, refunded, replaced or refinanced from time to time
with a credit facility with banks or other financial institutions.
"CREDIT FACILITIES" means, (1) one or more debt facilities
(including, without limitation, the Credit Agreement) or commercial paper
facilities 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, (2) Capital Lease Obligations, (3) mortgage
financings or (4) purchase money obligations, in each case, as amended,
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.
8
"DEFINITIVE NOTE" means a certificated Note registered in the name
of the Holder thereof and issued in accordance with Section 2.07 hereof,
substantially in the form of Exhibit A hereto, and 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.
"DEPOSITARY" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.04 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 NONCASH CONSIDERATION" means the Fair Market Value of
noncash consideration received by the Company or any of its Restricted
Subsidiaries in connection with an Asset Sale that is so designated as
Designated Noncash Consideration pursuant to an Officers' Certificate, setting
forth the basis of such valuation, less the amount of cash or Cash Equivalents
received in connection with a subsequent sale of such Designated Noncash
Consideration.
"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 of
this Indenture. 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).
"EQUITY OFFERING" means a public or private offer and sale of
Capital Stock (other than Disqualified Stock) of the Company.
"EUROCLEAR" means Euroclear S.A./N.V., as operator of the Euroclear
System.
"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 2.07(f) hereof.
9
"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 of this
Indenture after giving effect to the application of the proceeds of the Notes
and any Indebtedness under the Credit Agreement borrowed on the date of this
Indenture, until such amounts are repaid, plus up to a maximum of $22.0 million
in unfunded commitments in existence but not yet incurred on the date of this
Indenture, which are available for Texsan Heart Hospital and Heart Hospital of
Lafayette to fund equipment purchases.
"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 of the Company whose
determination shall be conclusive if evidenced by a Board Resolution.
"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.
"GLOBAL NOTE LEGEND" means the legend set forth in Section
2.07(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, substantially in the
form of Exhibit A hereto, issued in accordance with Section 2.01, 2.07(b),
2.07(d) or 2.07(f) of this Indenture.
"GOVERNMENT SECURITIES" means securities that are direct obligations
of the United States of America for the timely payment of which its full faith
and credit 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.
"GUARANTOR" means:
(1) the Parent, and
(2) the Subsidiary Guarantors.
10
"HEDGING OBLIGATIONS" means, with respect to any specified Person,
the obligations of such Person under:
(1) interest rate swap agreements, interest rate cap agreements,
interest rate collar agreements and other agreements or arrangements
with respect to exposure to interest rates;
(2) commodity swap agreements, commodity option agreements, forward
contracts and other agreements or arrangements with respect to
exposure to commodity prices; and
(3) foreign exchange contracts, currency swap agreements and other
agreements or arrangements with respect to exposure to foreign
currency exchange rates.
"HOLDER" means a Person in whose name a Note is registered.
"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 (1) 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 and (2) neither the accrual of interest nor the accretion of original
issue discount nor the payment of interest in the form of additional
Indebtedness (to the extent provided for when the Indebtedness on which such
interest is paid was originally issued) shall be considered an incurrence of
Indebtedness.
"INDEBTEDNESS" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent (without duplication):
(1) in respect of borrowed money;
(2) 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;
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations;
(5) in respect of the balance deferred and unpaid of the purchase price
of any property, except any such balance that constitutes an accrued
expense or trade payable;
11
(6) 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 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
(7) 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 (A) the Fair Market Value of such
asset at such date of determination and (B) 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:
(1) the accreted value thereof, in the case of any Indebtedness issued
with original issue discount; and
(2) 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:
(i) any liability for federal, state, local or other taxes,
(ii) performance, surety or appeal bonds provided in the ordinary course
of business or
(iii) 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
12
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.
"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.
"INITIAL PURCHASERS" means the initial purchasers listed on Schedule
A of the purchase agreement dated June 29, 2004, among the Company, the
Guarantors and the Initial Purchasers.
"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 is not also a QIB.
"INVESTMENT GRADE" means (1) BBB- or above, in the case of S&P (or
its equivalent under any successor Rating Categories of S&P) and Baa3 or above,
in the case of Moody's (or its equivalent under any successor Rating Categories
of Moody's), or (2) the equivalent in respect of the Rating Categories of any
Rating Agencies.
"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 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, immediately after giving effect to any such
sale or disposition, such Person (x) is no longer a Restricted Subsidiary of the
Company and (y) if such Restricted Subsidiary was a Subsidiary Guarantor
immediately prior to such sale or disposition, is no longer a Subsidiary
guarantor, 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 (A) if such
Restricted Subsidiary was formed
13
prior to the date of this Indenture, any Investments in the Equity Interests of
such Person or (B) if such Restricted Subsidiary was formed on or after the date
of this Indenture, any Investments in such Person, in either case not sold or
disposed of in an amount determined as provided in the final paragraph of
Section 4.07 of this Indenture. 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 in an amount
determined as provided in the final paragraph of Section 4.07 of this Indenture.
"ISSUE DATE" means the date of this Indenture.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in The City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed.
"LEGENDED REGULATION S GLOBAL NOTE" means a global Note in the form
of Exhibit A hereto bearing the Global Note Legend, the Private Placement Legend
and the Regulation S Temporary Global Note 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.
"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 all liquidated damages then owing
pursuant to the Registration Rights Agreement.
"MOODY'S" means Moody's Investors Service, Inc.
"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:
(1) (a) any gain (but not loss), together with any related provision for
taxes on such gain (but not loss), realized in connection with any
sale of assets outside the ordinary course of business; and (b) any
gain (or loss), together with related provision for taxes on such
gain (or loss), realized in connection with the disposition of any
securities by such Person or any of its Restricted Subsidiaries
14
or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries; and
(2) any extraordinary gain (but not loss), together with any related
provision for taxes on such extraordinary gain (but not 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 (1) the direct costs
relating to such Asset Sale, including, without limitation, legal, accounting
and investment banking fees, and sales commissions, and any relocation expenses
incurred as a result thereof, (2) 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, (3) amounts required to be applied to the
repayment of Indebtedness (other than intercompany Indebtedness owing to and
held by the Company or any of its Restricted Subsidiaries) 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, (4) payments to holders of Equity Interests in
the Restricted Subsidiary in such capacity (other than such Equity Interests
held by the Company or any Restricted Subsidiary thereof) that has consummated
such Asset Sale to the extent that such payment is required to permit the
distribution of such proceeds in respect of the Equity Interests in such
Restricted Subsidiary held by the Company or any Restricted Subsidiary thereof,
and (5) any reserve for adjustment in respect of the sale price of such asset or
assets established in accordance with GAAP.
"NET TANGIBLE ASSETS" means the total amount of assets of the
Company and its Restricted Subsidiaries (less applicable depreciation,
amortization and other valuation reserves), except to the extent resulting from
write-ups of capital assets (excluding write-ups in connection with accounting
for acquisitions in conformity with GAAP), after deducting therefrom (1) all
current liabilities of the Company and its Restricted Subsidiaries (excluding
intercompany items) and (2) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, all as set
forth on the most recent quarterly or annual consolidated balance sheet of the
Company and its Restricted Subsidiaries, prepared in conformity with GAAP.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
"NOTE GUARANTEE" means a Guarantee of the Notes pursuant to this
Indenture.
"NOTES" means the 9-7/8% Senior Notes due 2012 of the Company issued
on the date hereof and any Additional Notes, including any 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 and other liabilities payable under
the documentation governing any Indebtedness.
15
"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 at least 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
this Indenture.
"OPINION OF COUNSEL" means an opinion from legal counsel who is
reasonably acceptable to the Trustee (who may be counsel to or an employee of
the Company) that meets the requirements of this Indenture.
"PARENT" means MedCath Corporation.
"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 DTC, shall include Euroclear and
Clearstream).
"PERMITTED BUSINESS" means any business conducted or proposed to be
conducted (as described in the offering memorandum dated June 29, 2004) by the
Company and its Restricted Subsidiaries on the date of this Indenture and other
businesses reasonably related or ancillary thereto.
"PERMITTED INVESTMENTS" means:
(1) any Investment in the Company or in a Subsidiary Guarantor;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary of the
Company in a Person, if as a result of, or in connection with, such
Investment:
(a) such Person becomes a Subsidiary Guarantor; or
(b) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets
to, or is liquidated into, the Company or a Subsidiary
Guarantor;
(4) 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 of this Indenture;
(5) Investments acquired solely in exchange for the issuance of Equity
Interests (other than Disqualified Stock) of the Company;
16
(6) 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, indemnities
and compensation payable thereunder;
(7) stock, obligations or securities received in satisfaction of
judgments;
(8) Physician Support Obligations made by the Company or a Subsidiary
thereof;
(9) any Investment in a Restricted Subsidiary of the Company (other than
a Subsidiary Guarantor) in the form of a promissory note payable by
such Restricted Subsidiary to the Company or a Subsidiary Guarantor
that bears cash interest, which note shall be unsubordinated, unless
such note is used to finance a Restricted Subsidiary's working
capital or other operating cash requirements consistent with the
Company's past practice;
(10) Investments made by the Company in an Unrestricted Subsidiary
pursuant to an obligation to make a capital contribution to such
Unrestricted Subsidiary; provided that (i) such Investment ratably
decreases such obligation and (ii) such obligation was, at the time
it was created, a Restricted Investment that was permitted under the
covenant described under Section 4.07 of this Indenture;
(11) other Investments in any Person that is not an Affiliate of the
Company (other than a Restricted Subsidiary or any Person that is an
Affiliate of the Company solely because the Company, directly or
indirectly, owns Equity Interests in or controls such Person)
engaged in a Permitted Business in an aggregate amount (measured on
the date such Investments were made and without giving effect to
subsequent changes in value), when taken together with all other
Investments made pursuant to this clause (11) since the date of this
Indenture (but, to the extent that any Investment made pursuant to
this clause (11) since the date of this Indenture is sold or
otherwise liquidated for cash, minus the lesser of (x) the cash
return of capital with respect to such Investment (less the cost of
disposition, if any) and (y) the initial amount of such Investment),
not to exceed the greater of (A) $50.0 million and (B) 5% of the
Company's Net Tangible Assets;
(12) only in the event that amounts available for Permitted Investments
under the preceding clause (11) have been fully utilized and in
addition to any amounts utilized under such clause, other
Investments in any Person that is not an Affiliate of the Company
(other than a Restricted Subsidiary or any Person that is an
Affiliate of the Company solely because the Company, directly or
indirectly, owns Equity Interests in or controls such Person)
engaged in a Permitted Business; provided that (A) the Company's
Consolidated Leverage Ratio at the time of such Investment is, and
after giving pro forma effect thereto as if such Investment had been
made at the beginning of the applicable four-quarter period
17
would have been, less than 4.0 to 1 and (B) the rating assigned to
the Notes by each of Moody's and S&P is no less favorable than that
in existence on the date of this Indenture; and
(13) Investments in a Restricted Subsidiary of the Company that is not a
Guarantor, to the extent received solely in consideration for any
non-cash return on an Investment previously made by the Company in a
Restricted Subsidiary that is not a Guarantor.
"PERMITTED LIENS" means:
(1) Liens on the assets of the Company and any Restricted Subsidiary
thereof securing Indebtedness in an amount not to exceed the greater
of (A) the sum of (i) the amount of Indebtedness incurred and
outstanding under Section 4.09(b)(i) hereof, immediately prior to
the creation of such Lien plus (ii) the amount of Indebtedness
available for incurrence under Section 4.09(b)(i) hereof,
immediately prior to the creation of such Lien and (B) the product
of (x) 3.5 and (y) the Company's Consolidated Cash Flow for the most
recent four fiscal quarters for which internal financial statements
are available immediately prior to the creation of such Lien;
(2) Liens in favor of the Company or any Restricted Subsidiary that is a
Guarantor;
(3) 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 or at the time such Person
becomes a 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 other assets of the Company
or any Restricted Subsidiary;
(4) Liens on property existing at the time of acquisition thereof by the
Company or any Restricted Subsidiary of the Company, provided 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;
(5) Liens securing Existing Indebtedness;
(6) Liens on cash or letters of credit securing Hedging Obligations of
the Company or any of its Restricted Subsidiaries that do not
constitute Indebtedness;
(7) Liens for taxes, assessments and governmental charges not yet
delinquent or being contested in good faith and for which adequate
reserves have been established to the extent required by GAAP;
(8) carriers, warehousemen's, mechanics', worker's, materialmen's,
operators', landlords' or similar Liens arising in the ordinary
course of business;
18
(9) Liens incurred or deposits made in the ordinary course of business
in connection with worker's compensation, unemployment insurance or
other social security, old age pension or public liability
obligations;
(10) Liens, deposits or pledges to secure the performance of bids,
tenders, contracts (other than contracts for the payment of
Indebtedness), leases, or other similar obligations arising in the
ordinary course of business;
(11) survey exceptions, encumbrances, easements or reservations of, or
rights of other for, rights of way, zoning or other restrictions as
to the use of properties, and defects in title which, in the case of
any of the foregoing, were not incurred or created to secure the
payment of Indebtedness, and which in the aggregate do not
materially adversely affect the value of such properties or
materially impair the use for the purposes of which such properties
are held by the Company or any Restricted Subsidiaries;
(12) Liens, deposits or pledges to secure public or statutory
obligations, surety, stay, appeal, indemnity, performance or other
similar bonds or obligations; and Liens, deposits or pledges in lieu
of such bonds, or to secure such bonds, or to secure letters of
credit in lieu of or supporting the payment of such bonds;
(13) any interest or title of a lessor in the property subject to any
lease;
(14) Liens on the assets of the Company or any Restricted Subsidiary of
the Company to secure Permitted Refinancing Indebtedness, in whole
or in part, of any Indebtedness secured by Liens; provided however,
that any such Lien shall not extend to any assets other than those
that secured such original Indebtedness; and
(15) Liens (not otherwise permitted hereunder) with respect to
obligations that do not exceed $5.0 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 that was not in existence on the date of
this Indenture); provided that:
(1) 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);
(2) 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;
19
(3) 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 governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded;
(4) if the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is pari passu in right of payment with the
Notes or any Note Guarantees, such Permitted Refinancing
Indebtedness is pari passu with, or subordinated in right of payment
to, the Notes or such Note Guarantees; and
(5) such Indebtedness is incurred either by the Person who is the
obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded, or by the Company.
"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 (i) 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
(ii) any independent practice association or other entity majority-owned by any
Person described in clause (i) above (other than any Person in which the Company
or any of its Affiliates owns any Equity Interests) in each case:
(1) in the ordinary course of business of the Company or such Restricted
Subsidiary; and
(6) pursuant to a written agreement having a period not to exceed five
years.
"PRINCIPALS" means (i) MedCath 1998 LLC, (ii) Welsh, Carson,
Anderson & Stowe, VII, L.P., and (iii) any investment partnership under common
control with any of the foregoing.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
2.07(g)(i) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"QUALIFIED EQUITY OFFERING" means (i) an offer and sale of common
stock (other than Disqualified Stock) of the Company or the Parent pursuant to a
registration statement that has been declared effective by the Commission
pursuant to the Securities Act (other than a registration statement on Form S-8
or otherwise relating to equity securities issuable under any
20
employee benefit plan of the Company or the Parent) or (ii) any private
placement of common stock (other than Disqualified Stock) of the Company or the
Parent to any Person other than the Principals and their Related Parties;
provided that, in either case, if such offer, sale or placement is of common
stock of the Parent, all of the net cash proceeds therefrom has been contributed
to the common equity of the Company.
"RATING AGENCIES" means (1) S&P and Moody's or (2) if S&P or Moody's
or both of them are not making ratings publicly available, a nationally
recognized U.S. rating agency or agencies, as the case may be, selected by the
Company, which will be substituted for S&P or Moody's or both, as the case may
be.
"RATING CATEGORY" means (1) with respect to S&P, any of the
following categories (any of which may include a "+" or "-"): AAA, AA, A, BBB,
BB, B, CCC, CC, C and D (or equivalent successor categories), (2) with respect
to Moody's, any of the following categories: Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C
and D (or equivalent successor categories), and (3) the equivalent of any such
categories of S&P or Moody's used by another Rating Agency, if applicable.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, to be dated the date of this Indenture, among the Company, the
Guarantors, Banc of America Securities LLC, Wachovia Capital Markets, LLC,
Citigroup Global Markets Inc. and J.P. Morgan Securities Inc.
"REGULATION S" means Regulation S promulgated under the Securities
Act.
"REGULATION S GLOBAL NOTE" means a Legended Regulation S Global Note
or an Unlegended Regulation S Global Note, as appropriate.
"REGULATION S TEMPORARY GLOBAL NOTE LEGEND" means the legend set
forth in Section 2.07(h), which is required to be placed on Legended Regulation
S Global Notes under this Indenture.
"RELATED PARTY" means:
(1) any controlling stockholder, partner, member, 80% (or more) owned
Subsidiary, or immediate family member (in the case of an
individual) of any Principal; or
(2) 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 (1).
"REPLACEMENT ASSETS" means (1) non-current tangible assets that will
be used or useful in a Permitted Business, or (2) substantially all the assets
of a Permitted Business or (3) a Permitted Investment otherwise permitted under
this Indenture in any Person engaged in a Permitted Business.
21
"RESPONSIBLE OFFICER," when used with respect to the Trustee, means
any officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"RESTRICTED DEFINITIVE NOTE" means a Definitive 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.
"S&P" means Standard & Poor's Rating Services.
"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.
"SECURED INDEBTEDNESS" means any Indebtedness of the Company or any
of its Restricted Subsidiaries secured by a Lien upon any asset of the Company
or any of its Restricted Subsidiaries.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
22
"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.
"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.
"STRATEGIC INVESTOR" means (i) any physician and (ii) any Person at
least 90% of each class of outstanding Capital Stock or other ownership
interests of which is owned by physicians, in the case of each of the foregoing
clauses (i) and (ii), that owns Equity Interests in a Restricted Subsidiary of
the Company that owns and operates a hospital.
"SUBSIDIARY" means, with respect to any specified Person:
(1) any corporation, association or other business entity of which more
than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is
at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a
combination thereof); and
(2) any partnership (a) the sole general partner or the managing general
partner of which is such Person or a Subsidiary of such Person or
(b) the only general partners of which are such Person or one or
more Subsidiaries of such Person (or any combination thereof).
"SUBSIDIARY GUARANTORS" means:
(1) each direct or indirect Domestic Subsidiary of the Company other
than any Domestic Subsidiary that is not a Substantially
Wholly-Owned Restricted Subsidiary and has not provided a Guarantee
in respect of any Indebtedness of the Company or any other
Restricted Subsidiary thereof (other than any Indebtedness of the
Company solely as a result of the Guarantee by the Company of such
Restricted Subsidiary's Indebtedness); and
(3) any other subsidiary that executes a Note Guarantee in accordance
with the provisions of 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.
"SUBSTANTIALLY WHOLLY-OWNED RESTRICTED SUBSIDIARY" of any specified
Person means a Restricted Subsidiary of such Person not less than 95% of each
class of 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.
23
"TIA" means the Trust Indenture Act of 1939, as in effect on the
date on which this Indenture is qualified under the TIA.
"TREASURY REGULATIONS" means the Treasury regulations promulgated
under the Internal Revenue Code.
"TRUSTEE" means U.S. Bank National Association, a national banking
corporation, until a successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor serving
hereunder.
"UNLEGENDED REGULATION S GLOBAL NOTE" means a permanent global Note
in the form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend, deposited with or on behalf of and registered in the name of
the Depositary or its nominee and issued upon expiration of the Restricted
Period.
"UNRESTRICTED DEFINITIVE NOTE" means one or more Definitive Notes
that do not bear and are not required to bear the Private Placement Legend.
"UNRESTRICTED GLOBAL NOTE" means a permanent Global Note
substantially 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, and
that does not bear the Private Placement Legend.
"UNRESTRICTED SUBSIDIARY" means;
(1) 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 of this Indenture;
and
(2) any Subsidiary of any Subsidiary in the foregoing clause (1).
"U.S. PERSON" means a U.S. person as defined in Rule 902(k) 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:
(1) the sum of the products obtained by multiplying (a) the amount of
each then remaining installment, sinking fund, serial maturity or
other required payments of principal, including payment at final
maturity, in respect thereof, by (b) the number of years (calculated
to the nearest one-twelfth) that will elapse between such date and
the making of such payment; by
(2) the then outstanding principal amount of such Indebtedness.
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"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
"CHANGE OF CONTROL PAYMENT"..................................................................... 4.14
"CHANGE OF CONTROL PAYMENT DATE"................................................................ 4.14
"COVENANT DEFEASANCE"........................................................................... 8.03
"DTC"........................................................................................... 2.01
"EVENT OF DEFAULT".............................................................................. 6.01
"EXCESS PROCEEDS"............................................................................... 4.10
"LEGAL DEFEASANCE".............................................................................. 8.02
"OFFER AMOUNT".................................................................................. 3.08
"OFFER PERIOD".................................................................................. 3.08
"OFFSHORE TRANSACTION".......................................................................... 2.07
"PAYING AGENT".................................................................................. 2.04
"PAYMENT DEFAULT"............................................................................... 6.01
"PERMITTED DEBT"................................................................................ 4.09
"PURCHASE DATE"................................................................................. 3.08
"REGISTRAR"..................................................................................... 2.04
"RELATED PROCEEDINGS"........................................................................... 12.09
"REPURCHASE OFFER".............................................................................. 3.08
"RESTRICTED PAYMENTS"........................................................................... 4.07
"SPECIAL REDEMPTION"............................................................................ 3.09
"SPECIFIED COURTS".............................................................................. 12.09
"SUSPENDED COVENANTS"........................................................................... 4.21
"SUSPENSION CONDITION".......................................................................... 4.21
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;
25
"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 Commission 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;
(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 Commission from
time to time.
ARTICLE TWO
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 without interest coupons and only
shall be in minimum 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
26
to be bound thereby. However, to the extent any provision of any Note conflicts
with the express provisions of this Indenture, the provisions of 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 (and shall include 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 2.07 hereof.
(c) Regulation S Global Notes. Notes offered and sold in reliance
on Regulation S shall be issued initially in the form of the Legended Regulation
S Global Note, which shall be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee, as custodian for The Depository Trust
Company ("DTC") 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. Following the
termination of the Restricted Period, beneficial interests in the Legended
Regulation S Global Note shall be exchanged for beneficial interests in
Unlegended Regulation S Global Notes pursuant to the Applicable Procedures.
Simultaneously with the authentication of Unlegended Regulation S Global Notes,
the Trustee shall cancel the Legended Regulation S Global Note. The aggregate
principal amount of the Regulation S 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
Cedel Bank" 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 of the Company 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.
27
A Note shall not be valid until authenticated by the manual
signature of the Trustee. Such 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 Company may, subject to Article Four of this Indenture and
applicable law, issue Additional Notes under this Indenture, including Exchange
Notes. The Notes issued on the Closing Date and any Additional Notes
subsequently issued shall be treated as a single class for all purposes under
this Indenture.
The Trustee shall, upon a written order of the Company signed by two
Officers of the Company (an "AUTHENTICATION ORDER"), authenticate Notes for
original issue in an aggregate principal amount specified in such Authentication
Order. The Authentication Order shall specify the amount of Notes to be
authenticated and the date on which the Notes are to be authenticated.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
Section 2.03. Methods of Receiving Payments on the Notes.
If a Holder of Notes has given wire transfer instructions to the
Company, the Company shall pay all principal, interest and premium and
Liquidated Damages, if any, on that Holder's Notes in accordance with those
instructions. All other payments on Notes shall be made at the office or agency
of the Paying Agent and Registrar within the City and State of New York unless
the Company elects to make interest payments by check mailed to the Holders at
their addresses set forth in the register of Holders.
Section 2.04. Registrar and Paying Agent.
(a) 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 prior notice to any Holder. The Company shall
notify the Trustee in writing of the name and address of any Agent not a party
to this Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
(b) The Company initially appoints DTC to act as Depositary with
respect to the Global Notes.
28
(c) 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 2.05. 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 one of its
Subsidiaries) shall have no further liability for the money. If the Company or
one of its Subsidiaries 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 2.06. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA Section 312(a).
Section 2.07. 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 Depositary, or 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 Definitive 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; (ii) the Company in its sole discretion
determines that the Global Notes (in whole but not in part) should be exchanged
for Definitive Notes and delivers a written notice to such effect to the
Trustee; provided that in no event shall the Legended Regulation S Global Note
be exchanged by the Company for Definitive Notes prior to the expiration of the
Restricted Period; or (iii) there shall have occurred and be continuing a
Default or Event of Default with respect to the Notes. Upon the occurrence of
either of the preceding events in (i), (ii) or (iii) above, Definitive 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 2.08 and 2.11 hereof. Every Note authenticated and delivered
29
in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant
to this Section 2.07 or Section 2.08 or 2.11 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 2.07(a),
however, beneficial interests in a Global Note may be transferred and exchanged
as provided in Section 2.07(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 the provisions of
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 Legended Regulation S 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
2.07(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 2.07(b)(i) above, the transferor
of such beneficial interest must deliver to the Registrar either (A) (1) a
written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (B) (1) 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 Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer
or exchange referred to in (1) above; provided that in no event shall
Definitive Notes be issued upon the transfer or exchange of beneficial
interests in the Legended Regulation S Global Note prior to the expiration
of the Restricted Period. Upon consummation of an Exchange Offer by the
Company in accordance with Section 2.07(f) hereof, the requirements of
this Section 2.07(b)(ii) shall be deemed to have been satisfied upon
receipt by the Registrar of the instructions contained in the Letter of
Transmittal
30
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 at maturity of the relevant
Global Notes pursuant to Section 2.07(i) 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 2.07(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 a Legended 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 2.07(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, in the case of a transfer,
certifies in the applicable Letter of Transmittal that (1) it is not
an affiliate (as defined in Rule 144) of the Company, (2) it is not
engaged in, and does not intend to engage in, and has no arrangement
or understanding with any Person to participate in, a distribution
of the Exchange Notes to be issued in the Exchange Offer and (3) it
is acquiring the Exchange Notes in its ordinary course of business;
(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:
31
(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 or the Company so requests or if the Applicable Procedures
so require, an Opinion of Counsel in form reasonably acceptable to
the Registrar and 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.
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 Definitive
Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Restricted Definitive 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 Definitive 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;
32
(C) [INTENTIONALLY OMITTED];
(D) [INTENTIONALLY OMITTED];
(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 that
listed in subparagraph (B) 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; or
(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)(a) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.07(i) hereof,
and the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in
the appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this
Section 2.07(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 Definitive Notes to the Persons in whose names such Notes are
so registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.07(c)(i)
shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
(ii) Beneficial Interests in Legended Regulation S Global Note to
Definitive Notes. A beneficial interest in the Legended Regulation S
Global Note may not be exchanged for a Definitive Note or transferred to a
Person who takes delivery thereof in the form of a Definitive Note prior
to the expiration of the Restricted Period, 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 Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest to a
Person who takes delivery thereof in the form of an Unrestricted
Definitive 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 (1) it is not an affiliate
(as defined in Rule 144) of the Company, (2) it is not engaged in,
and
33
does not intend to engage in, and has no arrangement or
understanding with any Person to participate in, a distribution of
the Exchange Notes to be issued in the Exchange Offer and (3) it is
acquiring the Exchange Notes in its ordinary course of business;
(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 Definitive 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 Definitive 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 or the Company so requests or if the Applicable Procedures
so require, an Opinion of Counsel in form reasonably acceptable to
the Registrar and 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.
(iv) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest in
an Unrestricted Global Note proposes to exchange such beneficial interest
for a Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Definitive Note, then, upon
satisfaction of the conditions set forth in Section 2.07(b)(ii) hereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.07(i) hereof,
and the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in
the appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest pursuant to this Section 2.07(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
34
Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.07(c)(iv) shall not bear the Private
Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(i) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted
Global Note or to transfer such Restricted Definitive Notes 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 Definitive 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 Definitive 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 Definitive 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; or
(D) if such Restricted Definitive Note is being transferred
to the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B, including the certifications in item
(3)(a) thereof,
the Trustee shall cancel the Restricted Definitive 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, and in the case of
clause (C) above, the Regulation S Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Definitive 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 (1) it is not an affiliate (as defined in Rule 144)
of the Company, (2) it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding with any Person
to participate in, a
35
distribution of the Exchange Notes to be issued in the Exchange
Offer and (3) it is acquiring the Exchange Notes in its ordinary
course of business;
(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 Definitive 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 Definitive 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;
and, in each such case set forth in this subparagraph (D), if the
Registrar or the Company so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable to the
Registrar and 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.
Upon satisfaction of the conditions of any of the subparagraphs in
this Section 2.07(d)(ii), the Trustee shall cancel the Definitive Notes
and increase or cause to be increased the aggregate principal amount of
the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Definitive 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 Definitive
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 Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (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
36
shall authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 2.07(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its 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 provisions of this Section
2.07(e).
(i) Restricted Definitive Notes to Restricted Definitive Notes.
Any Restricted Definitive Note may be transferred to and registered in the
name of Persons who take delivery thereof in the form of a Restricted
Definitive 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;
(B) [INTENTIONALLY OMITTED]; 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 Definitive Notes to Unrestricted Definitive Notes.
Any Restricted Definitive Note may be exchanged by the Holder thereof for
an Unrestricted Definitive Note or transferred to a Person or Persons who
take delivery thereof in the form of an Unrestricted Definitive 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 (1) it is not an affiliate (as defined in Rule 144)
of the Company, (2) it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding with any Person
to participate in, a distribution of the Exchange Notes to be issued
in the Exchange Offer and (3) it is acquiring the Exchange Notes in
its ordinary course of business;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
37
(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 Definitive Notes
proposes to exchange such Notes for an Unrestricted Definitive
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 Definitive Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive
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.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note. Upon receipt of a request to register such a transfer,
the Registrar shall register the Unrestricted Definitive 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
participating in a distribution of the Exchange Notes and (y) they are not
affiliates (as defined in Rule 144) of the Company, and accepted for exchange in
the Exchange Offer and (ii) Definitive Notes in an aggregate principal amount
equal to the principal amount of the Restricted Definitive 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 Restricted Global Notes so accepted Unrestricted Global Notes in the
appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
38
(i) Private Placement Legend. Except as permitted below, each
Global Note and each Definitive 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 WAS THE OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR
ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON) (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 TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
39
Notwithstanding the foregoing, any Global Note or Definitive Note
issued pursuant to subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii),
(d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.07 (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
2.07 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.
(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
Definitive 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 2.12 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 Definitive
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.
40
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes and
Definitive 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 Definitive 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 2.11, 3.06, 3.08, 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.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive 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 Definitive 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, (C) to register the
transfer of or to exchange a Note between a record date and the next
succeeding interest payment date or (D) to register the transfer of or to
exchange a Note tendered and not withdrawn in connection with a Change of
Control Offer or an Asset Sale Offer.
(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 Definitive
Notes in accordance with the provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.07 to
effect a registration of transfer or exchange may be submitted by
facsimile with the original to follow by first class mail.
Section 2.08. Replacement Notes.
(a) 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
41
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.
(b) Every replacement Note 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 2.09. Outstanding Notes.
(a) 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 the provisions hereof, and those described in
this Section as not outstanding. Except as set forth in Section 2.10 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 Subsidiary of
the Company shall not be deemed to be outstanding for purposes of Section
3.07(b) hereof.
(b) If a Note is replaced pursuant to Section 2.08 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.
(c) 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.
(d) 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 2.10. Treasury Notes.
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that the Trustee knows are so owned shall be so disregarded.
Section 2.11. Temporary Notes.
(a) 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 Definitive Notes but may have variations that the
Company considers appropriate for temporary Notes and as shall be
42
reasonably acceptable to the Trustee. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Notes in exchange
for temporary Notes.
(b) Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
Section 2.12. 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
canceled Notes in accordance with its procedures for the disposition of canceled
securities in effect as of the date of such disposition (subject to the record
retention requirement of the Exchange Act). Certification of the disposition of
all canceled Notes shall be delivered to the Company by the Trustee. 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 2.13. 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 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 2.14. 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 a 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.
43
ARTICLE THREE
REDEMPTION AND OFFERS TO
PURCHASE
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 30 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Notes to be redeemed and (iv) the redemption price.
Section 3.02. Selection of Notes to Be Redeemed.
(a) If less than all of the Notes are to be redeemed at any time,
the Trustee shall select the Notes to be redeemed among the Holders of the Notes
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 considers 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 from the outstanding Notes not previously called for
redemption.
(b) 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 at maturity thereof to be redeemed. No
Notes in amounts of $1,000 or less shall be redeemed in part. Notes and portions
of Notes selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
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.
(a) 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 at maturity 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
44
portion of the original Note shall be issued in the name of the 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, if any, on Notes called for redemption ceases to accrue
on and after the redemption date;
(vii) the paragraph of the Notes and/or Section of this 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.
(b) 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 30 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. Interest, if any, on Notes called for
redemption ceases to accrue on and after the redemption date, unless the Company
defaults in making the applicable redemption payment. A notice of redemption may
not be conditional.
Section 3.05. Deposit of Redemption Price.
(a) Not later than 11:00 am Eastern Time on the redemption date,
the Company shall deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption price of and accrued 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 interest on, all Notes to be redeemed.
(b) If the Company complies with the provisions of the preceding
paragraph, 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.
45
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 be paid on the unpaid principal, from the redemption
date until such principal is paid, and to the extent lawful on any interest 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 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. No Notes in denominations of $1,000 or less shall be redeemed
in part.
Section 3.07. Optional Redemption.
(a) Except as set forth in clause (b) of this Section 3.07, the
Company shall not have the option to redeem the Notes pursuant to this Section
3.07 prior to July 15, 2008. On July 15, 2008 and thereafter, the Company may
redeem all or a part of the 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 July 15 of the years indicated below:
YEAR PERCENTAGE
- ---- ----------
2008............................................................. 104.938%
2009............................................................. 102.469%
2010 and thereafter.............................................. 100.000%
(b) At any time prior to July 15, 2007, the Company may redeem up
to 35% of the aggregate principal amount of Notes issued hereunder (including
any Additional Notes) at a redemption price of 109.875% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages, if any, 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 this
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.
(c) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Sections 3.01 through 3.06 hereof.
46
Section 3.08. Repurchase Offers.
In the event that, pursuant to Section 4.10 or 4.14 hereof, the
Company shall be required to commence an offer to all Holders to purchase all or
a portion of their respective Notes (a "REPURCHASE OFFER"), it shall follow the
procedures specified in such Sections and, to the extent not inconsistent
therewith, the procedures specified below.
The Repurchase Offer shall remain open for a period of no less than
30 days and no more than 60 days following its commencement, except to the
extent that a longer period is required by applicable law (the "OFFER PERIOD").
No later than three 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:
(i) that the Repurchase Offer is being made pursuant to this
Section 3.08 and Section 4.10 or Section 4.14 hereof, and the length of
time the Repurchase Offer shall remain open;
(ii) the Offer Amount, the purchase price and the Purchase Date;
(iii) that any Note not tendered or accepted for payment shall
continue to accrue interest and Liquidated Damages, if any;
(iv) that, unless the Company defaults in making such payment, any
Note (or portion thereof) accepted for payment pursuant to the Repurchase
Offer shall cease to accrue interest and Liquidated Damages, if any, after
the Purchase Date;
(v) that Holders electing to have a Note purchased pursuant to a
Repurchase Offer may elect to have Notes purchased in integral multiples
of $1,000 only;
(vi) 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, a
depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice prior to the Purchase Date;
47
(vii) 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;
(viii) that, if the aggregate amount of Notes surrendered by Holders
exceeds the Offer Amount, the Trustee shall, subject in the case of a
Repurchase Offer made pursuant to Section 4.10 to the provisions of
Section 4.10, select the Notes to be purchased on a pro rata basis (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
(ix) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount equal to the unpurchased
portion of the Notes surrendered (or transferred by book-entry transfer).
On the Purchase Date, the Company shall, to the extent lawful,
subject in the case of a Repurchase Offer made pursuant to Section 4.10 to the
provisions of Section 4.10, accept for payment 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 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 3.08. The
Company, the Depositary or the Paying Agent, as the case may be, shall promptly
(but in any case not later than three days after the Purchase Date) mail or
deliver to each tendering Holder an amount equal to the purchase price of Notes
tendered by such Holder, as the case may be, and accepted by the Company for
purchase, and the Company, shall promptly issue a new Note. The Trustee, upon
written request from the Company shall authenticate and mail or deliver such new
Note to such Holder, in a principal amount at maturity 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 respective Holder thereof. The Company
shall publicly announce the results of the Repurchase Offer on the Purchase
Date.
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 or regulations are applicable in connection with the
repurchase of the Notes pursuant to a Repurchase Offer and shall not be deemed
to have breached its obligations under Section 3.08, 4.10 or 4.14 by virtue of
such compliance.
Section 3.09. Mandatory Redemption.
(a) The Company is not required to make mandatory redemption or
sinking fund payments with respect to the Notes.
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(b) Any Special Redemption pursuant to this Section 3.09 shall be
made pursuant to the provisions of Sections 3.02 through 3.06 hereof.
Section 3.10. Application of Trust Money.
All money deposited with the Trustee pursuant to Section 11.02 shall
be held in trust and applied by it, in accordance with the provisions of the
Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FOUR
COVENANTS
Section 4.01. Payment of Notes.
(a) 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 other than the Company
or one of its Subsidiaries, holds as of 11:00 a.m. Eastern Time on the due date
money deposited by the Company in immediately available funds and designated for
and sufficient to pay all principal, premium, if any, and interest then due. The
Company shall pay all Liquidated Damages, if any, in the same manner on the
dates and in the amounts set forth in the Registration Rights Agreement.
(b) 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.
(a) 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 agent 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.
(b) 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
49
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.
(c) The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.04 of this Indenture.
Section 4.03. Reports.
(a) Whether or not required by the Commission, so long as any
Notes are outstanding, the Company will furnish to the Holders of Notes, within
the time periods specified in the Commission's rules and regulations:
(i) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and
10-K if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results
of Operations" and, with respect to the annual information only, a report
on the annual financial statements by the Company's certified independent
accountants; and
(ii) all current reports that would be required to be filed with
the Commission on Form 8-K if the Company were required to file such
reports.
In addition, whether or not required by the Commission, the Company
shall file a copy of all of the information and reports referred to in clauses
(1) and (2) above with the Commission for public availability within the time
periods specified in the Commission's rules and regulations (unless the
Commission will not accept such a filing) and make such information available to
prospective investors upon request. In addition, the Company and the Guarantors,
for so long as any Notes remain outstanding, 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 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 the Unrestricted Subsidiaries of the Company with
substantially the same format and level of detail as is required by Rule 3-10 of
Regulation S-X, promulgated pursuant to the Securities Act (as such Regulation
may be amended), with respect to the Company and the Guarantors separate from
the Company's Subsidiaries that are not Guarantors.
(c) Notwithstanding the foregoing, 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
50
satisfy the Commission's requirements. In such event, the presentation in the
footnotes to the financial statements and in "Management's Discussion and
Analysis of Financial Condition and Results of Operations" described in Section
4.03(b) hereof shall present the financial condition and results of operations
of the Parent, the Company and the Company's Restricted Subsidiaries separate
from the financial condition and results of operations of the Unrestricted
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 a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge, the Company has kept, observed, performed and fulfilled
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 what
action the Company is taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the 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 (which shall
be a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article Four or Article Five hereof 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 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, any 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.
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Section 4.06. Stay, Extension and Usury Laws.
The Company and each of the Guarantors covenant (to the extent that
it may lawfully do so) that it shall not at any time insist upon, plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Indenture; and the
Company and each of the Guarantors (to the extent that it may lawfully do so)
hereby expressly waive all benefit or advantage of any such law, and covenant
that they 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, payments or distributions
payable in Equity 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) any Equity Interests of the Company
or of any Restricted Subsidiary of the Company held by Persons other than
the Company or a Restricted Subsidiary of the Company;
(iii) purchase, redeem, defease or otherwise acquire or retire for
value any Indebtedness that is subordinated to the Notes or the Note
Guarantees, except (A) a payment of interest or principal at the stated
maturity thereof or (B) the purchase, repurchase or other acquisition of
any such Indebtedness purchased in anticipation of satisfying a sinking
fund obligation, principal installment or final maturity, in each case,
due within one year of the date of such purchase, repurchase or other
acquisition;
(iv) make any payment or distribution on account of the Guarantee
by the Company or the Parent, existing on the date of this Indenture, of
Indebtedness of the Heart Hospital of South Dakota LLC; or
(v) make any Restricted Investment (all such payments and other
actions set forth in Section 4.07(a)(i) through (v) above being
collectively referred to as "RESTRICTED PAYMENTS"),
unless, at the time of and after giving effect to such Restricted Payment:
52
(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 Consolidated Leverage Ratio
test set forth in Section 4.09(a); 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 Sections (ii), (iii), (iv) (to the
extent such dividends on other distributions are payable to the
Company or any Restricted Subsidiary thereof), (vi), (vii), (viii)
and (xi) of Section 4.07(b) below), 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 of this Indenture 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 of this Indenture 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 Disqualified
Stock or debt securities of the Company that have been
converted into or exchanged for such Equity Interests (other
than Equity Interests (or Disqualified Stock or debt
securities) sold to a Subsidiary of the Company); plus
(3) with respect to Restricted Investments made by the
Company and its Restricted Subsidiaries after the date of this
Indenture, an amount equal to (x) the amount returned in cash
to the Company or any Restricted Subsidiary of the Company on
or with respect to such Restricted Investments, whether
resulting from payments of interest on Indebtedness, dividends
or distributions, repayments of loans or advances in cash or
other payments, from the release of any Guarantee (except to
the extent any amounts are paid under such Guarantee), from
the release of any obligation to make a capital contribution
to an Unrestricted Subsidiary (except to the extent any
amounts are paid under such obligation) or from the net cash
proceeds from the sale of any such Investment, or (y) upon the
designation of any Unrestricted Subsidiary to be a Restricted
Subsidiary, the Fair Market Value of the Company's or its
Restricted Subsidiary's equity interest in such Subsidiary at
the time of
53
such designation, in the case of each of (x) and (y), only if
and to the extent such amounts are not included in the
calculation of Consolidated Net Income and not to exceed the
amount of the Restricted Investment previously made by the
Company or any Restricted Subsidiary thereof in such Person or
Unrestricted Subsidiary.
(b) Section 4.07(a) 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 the provisions of 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 Section
4.07(a)(C)(2);
(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 or other distribution by a
Restricted Subsidiary of the Company to the holders of its common Equity
Interests on a pro rata basis;
(v) the purchase, redemption or other acquisition or retirement
for value of common Equity Interests of a Restricted Subsidiary of the
Company owned by a Strategic Investor if such purchase, redemption or
retirement for value is made for consideration not in excess of the Fair
Market Value of such common Equity Interests (where such Fair Market Value
is determined by an opinion from an independent accounting, appraisal or
investment banking firm of national standing in the event that the
aggregate consideration for such transaction or series of related
transactions is in excess of $10.0 million); provided that at the time of
such purchase, redemption or other acquisition or retirement for value,
and after giving pro forma effect thereto as if such purchase, redemption
or other acquisition or retirement for value had been made at the
beginning of the applicable four-quarter period, the Company would be
permitted to incur at least $1.00 of additional Indebtedness (A) pursuant
to the Consolidated Leverage Ratio test set forth in Section 4.09(a) or
(B) under Section 4.09(b)(i);
(vi) so long as no Default has occurred and is continuing or would
be caused thereby, the purchase, redemption or other acquisition or
retirement for value of common Equity Interests of a Restricted Subsidiary
of the Company if such purchase, redemption or retirement for value is
made for consideration not in excess of the Fair Market Value
54
of such common Equity Interests (where such Fair Market Value is
determined by an opinion from an independent accounting, appraisal or
investment banking firm of national standing in the event that the
aggregate consideration for such transaction or series of related
transactions is in excess of $10.0 million); provided that at the time of
such purchase, redemption or other acquisition or retirement for value,
and after giving pro forma effect thereto as if such purchase, redemption
or other acquisition or retirement for value had been made at the
beginning of the applicable four-quarter period, the Company would be
permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Consolidated Leverage Ratio test set forth in Section 4.09(a).
(vii) 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, the Company or
any Restricted Subsidiary of the Company held by any current or former
employees of, or current or former members of, the Company's (or any of
its Restricted Subsidiaries') management pursuant to any management equity
subscription agreement, employment agreement or stock option agreement in
effect as of the date of this Indenture; provided that the aggregate price
paid for all such repurchased, redeemed, acquired or retired Equity
Interests shall not exceed $1.0 million in any twelve-month period;
provided further that, to the extent that such aggregate price paid under
this clause (vii) in any twelve-month period is less than $1.0 million,
any unused amount may be used to make such repurchases, redemptions or
other acquisition or retirement only in the immediately succeeding
twelve-month period;
(viii) 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
Section 4.07(a)(C)(2);
(ix) so long as no Default has occurred and is continuing or would
be caused thereby, the making of payments by the Company in respect of,
and pursuant to the terms of, the Guarantee by the Company or the Parent
existing on the date of this Indenture of Indebtedness of Heart Hospital
of South Dakota LLC; provided that such payments shall not, since the date
of this Indenture, exceed an aggregate amount of $16.7 million and
provided further that failure to make any such payments would result in a
breach of the Company's or the Parent's obligations under such Guarantee;
(x) 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; or
(xi) so long as no Default has occurred and is continuing or would
be caused thereby, other Restricted Payments in an amount when taken
together with all other Restricted Payments made pursuant to this clause
(xi) since the date of this Indenture, not to exceed $10.0 million.
55
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
resolution of the Board of Directors determining the Fair Market Value of any
assets or securities that are required to be valued by this Section 4.07 shall
be delivered to the Trustee. The Board of Directors' determination of Fair
Market Value 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 opinion or appraisal required by this Indenture.
Section 4.08. Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.
(a) 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 of the Company to:
(i) 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;
(ii) make loans or advances to the Company or any of its Restricted
Subsidiaries; or
(iii) transfer any of its properties to the Company or any of its
Restricted Subsidiaries.
(b) However, the preceding restrictions shall not apply to
encumbrances or restrictions existing under, by reason of or with respect to:
(i) the Credit Facilities, Existing Indebtedness or any other
agreements in effect on the date of this Indenture 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 this Indenture;
(ii) this Indenture, the Notes and the Note Guarantees;
(iii) applicable law;
(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
56
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 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 Section 4.08(a)(iii):
(A) that restrict in a customary manner the subletting,
assignment or transfer of any property or asset that is
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) 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;
(viii) any Credit Facility permitted under this Indenture; provided
that the applicable encumbrances and restrictions contained in the
agreement or agreements governing such Credit Facility are not materially
more restrictive, taken as a whole, than those contained in agreements in
effect on the date of this Indenture; and
(ix) provisions with respect to distributions or the disposition of
assets or property in a joint venture, limited liability company,
operating, partnership, shareholder and other similar agreements entered
into in the ordinary course of business to develop, own, operate or manage
Permitted Businesses with other equity investors in such entities that are
no more restrictive, taken as a whole, than any such agreements in effect
on the date of this Indenture.
57
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, if the Company's
Consolidated Leverage Ratio at the time of incurrence of such Indebtedness is
less than 5.0 to 1.0.
(b) So long as no default would be caused thereby, Section 4.09(a)
will not prohibit the incurrence of any of the following items of Indebtedness
(collectively, "PERMITTED DEBT"):
(i) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness under Credit Facilities 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
$200.0 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 Indebtedness incurred pursuant to this clause (1)
(and, in the case of any revolving credit Indebtedness, to effect a
corresponding commitment reduction thereunder) pursuant to Section 4.10;
provided that the aggregate principal amount of Indebtedness of all
Restricted Subsidiaries of the Company that are not Guarantors incurred
pursuant to this clause (i) shall not at any one time exceed $50.0
million;
(ii) the incurrence of Existing Indebtedness;
(iii) the incurrence by the Company and the 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 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 not in
existence on the date of this Indenture) that was permitted by this
Indenture to be incurred under Section 4.09(a) or Section 4.09(b)(ii),
(iii), (iv) or (viii);
(v) 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:
(a) if the Company or any Subsidiary Guarantor is the
obligor on such Indebtedness that is owed to a Restricted Subsidiary
other than a Subsidiary Guarantor, such Indebtedness must be
unsecured and, if such Indebtedness did not result from treasury
transactions in the ordinary course of business consistent with the
Company's past practice, such Indebtedness must be expressly
subordinated to the prior payment in full in cash of all Obligations
with respect to the Notes, in
58
the case of the Company, or the Note Guarantee, in the case of a
Subsidiary Guarantor;
(b) (i) any subsequent issuance or transfer of Equity
Interests in a Restricted Subsidiary formed after the date of this
Indenture that results in any such Indebtedness being held by a
Person other than the Company or a Restricted Subsidiary thereof and
(ii) any sale or other transfer of any such Indebtedness to a Person
that is not 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 Section 4.09(b)(v); and
(c) Indebtedness owed to the Company or any Subsidiary
Guarantor must be evidenced by an unsubordinated promissory note,
unless (i) the obligor under such Indebtedness is the Company or a
Guarantor or (ii) such intercompany note is used to finance a
Restricted Subsidiary's working capital or other operating cash
requirements, consistent with the Company's past practice;
(vi) the Guarantee by the Company or any of the 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;
(vii) the incurrence by the Company or any of its Restricted
Subsidiaries of Physician Support Obligations; and
(viii) the incurrence by the Company or any Subsidiary Guarantor of
additional Indebtedness in an aggregate principal amount (or accreted
value, as applicable) at any time outstanding, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this Section 4.09(b)(viii), not to
exceed $25.0 million.
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 Sections 4.09(b)(i) through (viii)
above, 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 the Credit Agreement outstanding on the date on which Notes are first
issued under this Indenture shall be deemed to have been incurred in reliance on
the exception provided by Section 4.09(b)(i). In addition, any Indebtedness
originally classified as incurred pursuant to Sections 4.09(b)(ii) through
(viii) above may later be reclassified by the Company such that it will 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 of Sections 4.09(b)(ii) through (viii) at the time of such
reclassification.
(c) 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
59
be exceeded, with respect to any outstanding Indebtedness due solely to the
result of fluctuations in the exchange rates of currencies.
(d) The Company shall not incur any Indebtedness that is
subordinate or junior in right of payment to any other Indebtedness of the
Company unless it is subordinate or junior in right of payment to the Notes to
the same extent. No Subsidiary Guarantor shall incur any Indebtedness that is
subordinate or junior in right of payment to any other Indebtedness of such
Subsidiary Guarantor unless it is subordinate or junior in right of payment to
such Subsidiary Guarantor's Note Guarantee to the same extent.
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 Equivalents
or Replacement Assets or a combination of the foregoing. For purposes of
this Section 4.10(a)(iii), each of the following shall be deemed to be
Cash Equivalents:
(A) any liabilities (as shown on the Company's or such
Restricted Subsidiary's most recent balance sheet) of the Company or
any Restricted Subsidiary (other than contingent liabilities,
liabilities that are by their terms subordinated to the Notes or 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;
(B) any securities, notes or other obligations received by
the Company or any such Restricted Subsidiary from such transferee
that are contemporaneously (subject to ordinary settlement periods)
converted by the Company or such Restricted Subsidiary into cash (to
the extent of the cash received in that conversion); and
(C) any Designated Noncash Consideration received by the
Company or any Restricted Subsidiary thereof in such Asset Sale
having a Fair Market Value, taken together with all other Designated
Noncash Consideration received pursuant to this clause (C) that is
at that time outstanding, not to exceed $10.0 million at the time of
receipt of such Designated Noncash Consideration, with the Fair
Market Value of each item of Designated Noncash Consideration being
60
measured at the time received without giving effect to subsequent
changes in value.
(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 unsubordinated Secured Indebtedness and, if the
Secured Indebtedness repaid is revolving credit Indebtedness, to
correspondingly reduce commitments with respect thereto; or
(ii) 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 this Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or
invested as provided in Section 4.10(b) above 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 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 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 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 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 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.
(d) The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the Asset Sales
provisions of this Indenture, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under the Asset Sale provisions of this Indenture by virtue of such
compliance.
61
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 not materially
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 $2.0 million, a resolution of the Board of Directors 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; 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, will not be subject to the provisions of Section
4.11(a):
(i) transactions between or among the Company and/or its
Restricted Subsidiaries;
(ii) payment of reasonable and customary fees, compensation or
employment benefits to, and reasonable and customary indemnification and
similar arrangements for the benefit of directors, officers and employees
of the Parent, the Company or any Restricted Subsidiary thereof in the
ordinary course of business;
(iii) Restricted Payments that are permitted by the provisions of
Section 4.07;
(iv) any issuance or sale of Equity Interests (other than
Disqualified Stock) of the Company;
(v) Investments that are permitted by clauses (xi) or (xii) of the
definition of Permitted Investments in Section 1.07; and
62
(vi) transactions provided for in Approved Affiliate Agreements.
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 (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.
Section 4.13. 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 4.14. Offer to Repurchase upon a 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 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 and Liquidated Damages, if
any, thereon, to the date of purchase. Within 30 days following any Change of
Control, the Company shall mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase 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 described
in Section 3.08 (including the notice required thereby). The Company will comply
with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of the Notes as a
result of a Change of Control. To the extent that the provisions of any
securities laws or regulations conflict with the Change of Control provisions of
this Indenture, the Company will comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under the
Change of Control provisions of this Indenture 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
Control Payment in respect of all Notes or portions thereof so tendered;
and
63
(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.
(c) 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.
(d) 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.
(e) Notwithstanding anything to the contrary in this Section 4.14,
the Company shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Section 4.14 and all other provisions of this Indenture applicable to a
Change of Control Offer made by the Company and purchases all Notes validly
tendered and not withdrawn under such Change of Control Offer.
Section 4.15. [INTENTIONALLY LEFT BLANK].
Section 4.16. Designation of Restricted and Unrestricted Subsidiaries.
(a) The Board of Directors of the Company may designate any
Restricted Subsidiary to be an Unrestricted Subsidiary, provided that:
(i) any Guarantee by the Company or any Restricted Subsidiary 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 by each, if applicable) at the time of such designation,
and such incurrence of Indebtedness would be permitted under Section 4.09;
(ii) 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 thereof of any Indebtedness of such Subsidiary) and
the maximum obligation of the Company or any Restricted Subsidiary thereof
to make capital contributions to such Subsidiary will be deemed to be a
Restricted Investment made as of the time of such designation and that
such Investment would be permitted under Section 4.07;
(iii) such Subsidiary does not own any Equity Interests of, or hold
any Liens on any Property of, the Company or any Restricted Subsidiary;
(iv) the Subsidiary being so designated:
(A) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the
Company
64
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;
(B) 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 (other
than any other obligation to make capital contributions to such
Person as set forth in the operating or partnership agreement of
such Person) or (b) to maintain or preserve such Person's financial
condition or to cause such Person to achieve any specified levels of
operating results;
(C) has not Guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the Company or any
of its Restricted Subsidiaries; and
(D) 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
(v) no Default or Event of Default would be in existence following
such designation.
(b) 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 (x) fail to meet any of the
requirements described in subclauses (A), (B) and (C) of Section 4.16(a)(iv), or
(y) fails to meet the requirement described in subclause (D) of Section
4.16(a)(iv) and such failure continues for a period of 30 days, 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 under this Indenture.
(c) The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided
that:
(i) 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(a)
calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period;
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(ii) 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 under Section 4.07;
(iii) all Liens of such Unrestricted Subsidiary existing at the time
of such designation would be permitted under Section 4.12; and
(iv) no Default or Event of Default would be in existence following
such designation.
Section 4.17. 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 or provisions
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 4.18. Guarantees.
(a) If, on or after the date of this Indenture, (a) the Company or
any of its Restricted Subsidiaries acquires or creates another Domestic
Subsidiary that either (x) is a Substantially Wholly-Owned Restricted Subsidiary
or (y) provides a Guarantee of any Indebtedness of the Company or of any other
Restricted Subsidiary thereof (other than any Indebtedness of the Company solely
as a result of the Guarantee by the Company of such Restricted Subsidiary's
Indebtedness) or (b) any Domestic Subsidiary that is not a Subsidiary Guarantor
(i) becomes a Substantially Wholly-Owned Restricted Subsidiary or (ii) provides
a Guarantee of any Indebtedness of the Company or of any other Restricted
Subsidiary thereof (other than any Indebtedness of the Company solely as a
result of the Guarantee by the Company of such Domestic Subsidiary's
Indebtedness), then, in any such event, that Domestic Subsidiary must become a
Guarantor and execute a supplemental indenture (A) within 30 days in the case of
clause (a)(x) and (B) otherwise simultaneously with such event. In the event of
a Guarantee as a result of clauses (a)(x) or (b)(ii) of the preceding sentence,
such Guarantee shall be senior to or pari passu with such Restricted
Subsidiary's Guarantee of or pledge to secure such other Indebtedness.
(b) Notwithstanding Section 4.18(a), any Note Guarantee may
provide by its terms that it will be automatically and unconditionally released
and discharged under the circumstances described under Section 10.05 hereof.
Section 4.19. Sale and Leaseback Transactions.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction, provided that
the Company or any Restricted Subsidiary may enter into a sale and leaseback
transaction if:
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(i) the gross cash proceeds of that sale and leaseback transaction
are at least equal to the Fair Market Value of the property that is the
subject of that sale and leaseback transaction and the resolution of the
Board of Directors of the Company with respect to the determination
thereof is set forth in an Officers' Certificate delivered to the Trustee;
and
(ii) the transfer of assets in that sale and leaseback transaction
is permitted by, and the Company or such Restricted Subsidiary applies the
proceeds of such transaction in compliance with Section 4.10.
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 Subsidiary of the Company to any Person
(other than the Company or a Restricted Subsidiary thereof), unless:
(i) if, immediately after giving effect to such issuance,
transfer, conveyance, sale, lease or other disposition, (x) such
Restricted Subsidiary would no longer constitute a Restricted Subsidiary
and (y) if such Restricted Subsidiary was a Subsidiary Guarantor
immediately prior to such issuance, transfer, conveyance, sale, lease or
other disposition, would no longer constitute a Subsidiary Guarantor, (A)
if such Restricted Subsidiary was formed prior to the date of this
Indenture, any Investment in Equity Interests of such Person and (B) if
such Restricted Subsidiary was formed on or after the date of this
Indenture, any Investment in such Person, in either case, 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
(ii) 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. Use of Net Proceeds from the Issuance of the Notes.
(a) The Company shall not, directly or indirectly, apply the Net
Proceeds from any issuance and sale of the Notes to make an Investment in any
Restricted Subsidiary of the Company that is not a Guarantor unless:
(i) such Investment is in the form of an unsubordinated promissory
note payable by such Restricted Subsidiary to the Company or a Subsidiary
Guarantor; and
(ii) such unsubordinated promissory note bears cash interest.
(b) Any forgiveness or cancellation of any unsubordinated
promissory note referred to in clause (i) above prior to full payment in cash of
all principal, interest and any premiums thereunder will be deemed to be a
Restricted Investment by the Company on the date of such forgiveness or
cancellation equal to the principal amount of such unsubordinated
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promissory note forgiven or cancelled, together with any accrued and unpaid
interest and premium, if any, and if such Restricted Investment would not be
permitted to be made as of such date under Section 4.07, the Company shall be in
default under this Indenture.
ARTICLE FIVE
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets.
(a) The Company shall not, directly or indirectly: (1) consolidate
or merge with or into another Person (whether or not the Company is the
surviving corporation) or (2) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of 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 (i) is a corporation
organized or existing under the laws of the United States, any state
thereof or the District of Columbia and (ii) 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;
(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 will, 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 Consolidated Leverage 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
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(v) the Company delivers to the Trustee an Officers' Certificate
(attaching the arithmetic computation to demonstrate compliance with
clause (3) 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.
(b) 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.
Section 5.01(a)(iii) shall not apply to any merger, consolidation or sale,
assignment, transfer, 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,
lease, 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 and the Notes with the same
effect as if such successor Person had been named as the Company herein and the
Company shall be discharged from all obligations and covenants under this
Indenture and the Notes; provided, however, that the predecessor Company shall
not be relieved from the obligation to pay the principal of and interest and
Liquidated Damages, if any, on the Notes except in the case of a sale,
assignment, transfer, conveyance or other disposition of all of the Company's
assets that meets the requirements of Section 5.01 hereof.
ARTICLE SIX
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;
(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;
(iii) failure by the Company or any of its Restricted Subsidiaries
to comply with Sections 4.10, 4.14 or 5.01;
(iv) failure by the Company or any of its Restricted Subsidiaries
for 60 days after written notice by the Trustee or Holders representing
25% or more of the aggregate
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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 on such
Indebtedness when due at the final maturity prior to the expiration
of any grace period provided in such Indebtedness on the date of
such default (a "PAYMENT DEFAULT"); or
(B) results in the acceleration of such Indebtedness prior
to its express maturity,
and, in each case, the principal amount of any such Indebtedness, together
with the principal amount of any other such Indebtedness under which there
has been a Payment Default or the maturity of which has been so
accelerated, aggregates $10.0 million or more;
(vi) failure by the Company or any of its Restricted Subsidiaries
to pay final judgments (to the extent such judgments are not covered by
insurance provided by a reputable 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;
(vii) except as permitted by this Indenture, any Note Guarantee
shall be held in any judicial proceeding to be unenforceable or invalid or
shall cease for any reason to be in full force and effect or any
Guarantor, or any Person acting on behalf of any Guarantor, shall deny or
disaffirm its obligations under its Note Guarantee;
(viii) the Company, any Guarantor or any Significant Subsidiary of
the Company (or any Subsidiaries that together would constitute a
Significant Subsidiary) 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:
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(A) is for relief against the Company, any Guarantor or any
of its Restricted Subsidiaries that is a Significant Subsidiary (or
Subsidiaries that together would constitute a Significant
Subsidiary), in an involuntary case; or
(B) appoints a custodian of the Company, any Guarantor or
any of its Restricted Subsidiaries that is a Significant Subsidiary
(or Subsidiaries that together would constitute a Significant
Subsidiary) or for all or substantially all of the property of the
Company, any Guarantor or any of its Restricted Subsidiaries that is
a Significant Subsidiary (or Subsidiaries that together would
constitute a Significant Subsidiary), or
(C) orders the liquidation of the Company, any Guarantor or
any of its Restricted Subsidiaries that is a Significant Subsidiary
(or Subsidiaries that together would constitute a Significant
Subsidiary);
and the order or decree remains unstayed and in effect for 60 consecutive days.
Section 6.02. Acceleration.
(a) In the case of an Event of Default specified in clause (viii)
or (ix) of Section 6.01 hereof, 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.
(b) 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. 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) shall
also become immediately due and payable to the extent permitted by law upon the
acceleration of the Notes.
Section 6.03. Other Remedies.
(a) 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, with respect to, the Notes or to
enforce the performance of any provision of the Notes or this Indenture.
(b) 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
71
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 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
hereunder, except a continuing Default or Event of Default in the payment of
interest or Liquidated Damages on, or the principal of, the Notes. In the event
of a declaration of acceleration of the Notes solely because an Event of Default
described in Section 6.01(a)(v) has occurred and is continuing, the declaration
of acceleration of the Notes shall be automatically rescinded and annulled if
the event of default or payment default triggering such Event of Default
pursuant to Section 6.01(a)(v) shall be remedied or cured by the Company or a
Restricted Subsidiary of the Company or waived by the holders of the relevant
Indebtedness within 20 days after the declaration of acceleration with respect
thereto and if the rescission and annulment of the acceleration of the Notes
would not conflict with any judgment or decree of a court of competent
jurisdiction obtained by the Trustee for the payment of amounts due 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.
The Holders of a majority in principal amount of the then
outstanding Notes will have the right to direct the time, method and place of
conducting any proceeding for exercising any remedy available to the Trustee.
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 may take any
other action it deems proper that is not inconsistent with any such direction
received from Holders of Notes.
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Section 6.06. Limitation on Suits.
(a) A Holder may not pursue any remedy with respect to this
Indenture or the Notes unless:
(i) the Holder gives the Trustee written notice of a continuing
Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount of
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(iii) such Holder or Holders offer the Trustee indemnity
satisfactory to the Trustee against any costs, liability or expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Notes do not give the
Trustee a direction that is inconsistent with the request.
(b) 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.
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 the principal of, premium or
Liquidated Damages, if any, or interest on, such Note or to bring suit for the
enforcement of any such payment, on or after the due date expressed in the
Notes, shall not be impaired or affected without the consent of the Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a)(i) or (a)(ii)
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, if any, interest, and Liquidated Damages, if
any, remaining unpaid on the Notes and interest on overdue principal and
premium, if any, and, to the extent lawful, interest and Liquidated Damages, if
any, 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
73
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.
(a) 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, if any, interest and Liquidated Damages, if any,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal, premium, if any,
interest, and Liquidated Damages, if any, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
(b) 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
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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 ten percent in principal amount of the then
outstanding Notes.
ARTICLE SEVEN
TRUSTEE
Section 7.01. Duties of Trustee.
Except to the extent, if any, provided otherwise in the Trust
Indenture Act of 1939 (as from time to time in effect):
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 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 7.01.
(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
75
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, costs, liability or expense that might be
incurred by it in connection with the request or direction.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
Section 7.02. Certain Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed
by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the 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 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 Holders shall have offered to the Trustee
security or indemnity reasonably satisfactory to it against the costs, expenses
and liabilities that might be incurred by it in compliance with such request or
direction.
(g) Except with respect to Section 4.01, the Trustee shall have no
duty to inquire as to the performance of the Company with respect to the
covenants contained in Article 4. In addition, the Trustee shall not be deemed
to have knowledge of an Event of Default except (i) any Default or Event of
Default pursuant to Section 6.01(a)(i), 6.01(a)(ii) and 6.01(a)(iii), or (ii)
any Default or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge.
(h) Delivery of reports, information and documents to the Trustee
under Section 4.03 is for informational purposes only and the Trustee's receipt
of the foregoing shall not constitute constructive notice of any information
contained therein or determinable from
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information contained therein, including the Company's compliance with any of
the covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officer's Certificates).
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 become a creditor of, or otherwise deal with,
the Company or any of its Affiliates with the same rights it would have if it
were not Trustee. However, in the event that the Trustee acquires any
conflicting interest as described in the Trust Indenture Act of 1939 (as in
effect at such time), 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, 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 Holders of 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, premium, interest
or Liquidated Damages on any Note, the Trustee may withhold the notice if and so
long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes.
Section 7.06. Reports by Trustee to Holders of the Notes.
(a) Within 60 days after each May 15 beginning with the May 15
following the date hereof, 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 Section 313(a) (but if no event described
in TIA Section 313(a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted). The Trustee also shall comply
with TIA Section 313(b)(2). The Trustee shall also transmit by mail all reports
as required by TIA Section 313(c).
(b) A copy of each report at the time of its mailing to the
Holders of 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 Section
313(d). The Company shall promptly notify the Trustee when the Notes are listed
on any stock exchange or any delisting thereof.
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Section 7.07. Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder in accordance with a written schedule provided by the Trustee to the
Company. 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.
(b) The Company shall indemnify the Trustee against any and all
losses, liabilities or expenses 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 either of the Company or any Holder or any other person) or
liability in connection with the exercise or performance of any of its powers or
duties hereunder, except to the extent any such loss, liability or expense may
be attributable to its negligence, bad faith or willful misconduct. 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 unless the failure to notify the Company impairs the
Company's ability to defend such claim. The Company shall defend the claim and
the Trustee shall cooperate in the defense. The Company need not pay for any
settlement made without its consent.
(c) The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture and resignation or
removal of the Trustee.
(d) To secure the Company's payment obligations in this Section,
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 and resignation or removal of the Trustee.
(e) When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(a)(viii) and (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.
(f) The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
Section 7.08. Replacement of Trustee.
(a) 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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(b) 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:
(i) the Trustee fails to comply with Section 7.10 hereof;
(ii) 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;
(iii) a custodian or public officer takes charge of the Trustee or
its property; or
(iv) the Trustee becomes incapable of acting.
(c) 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.
(d) If a successor Trustee does not take office within 30 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.
(e) If the Trustee, after written request by any Holder who has
been a Holder for at least six months, fails to comply with Section 7.10, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(f) 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. 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 Person, the
successor Person without any further act shall be the successor Trustee.
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Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $50.0 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is
subject to TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
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.
ARTICLE EIGHT
DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of the Board of Directors evidenced
by a resolution set forth in an Officers' Certificate, at any time, elect to
have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article Eight.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, 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 Note 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 the
outstanding Notes and Note 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 provisions 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
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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 concerning issuing
temporary Notes, registration of Notes and mutilated, destroyed, lost or stolen
Notes and the Company's obligations under 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 shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13, 4.14, 4.16, 4.17, 4.18 and 4.19 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 and the Guarantors 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 (vii) shall not constitute Events of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
(a) The following shall be the conditions to the application of
either Section 8.02 or 8.03 hereof to the outstanding Notes:
(i) the Company must 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 will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of, or
interest and premium and Liquidated Damages, if any, on the outstanding
Notes on the Stated Maturity or on the applicable redemption date, as the
case may be, and the Company must specify whether the Notes are being
defeased to maturity or to a particular redemption date;
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(ii) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to
the Trustee confirming that (a) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling or (b) since
the date of this Indenture, there has been a change in the applicable
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 will not recognize income, gain or loss for federal
income tax purposes as a result of such Legal Defeasance and will 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;
(iii) in the case of Covenant Defeasance, 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 will not
recognize income, gain or loss for federal income tax purposes as a result
of such Covenant Defeasance and will 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;
(iv) no Default or Event of Default shall have occurred and be
continuing either: (a) on the date of such deposit; or (b) or insofar as
Events of Default from bankruptcy or insolvency events are concerned, at
any time in the period ending on the 123rd day after the date of deposit;
(v) such Legal Defeasance or Covenant Defeasance will not result
in a breach or violation of, or constitute a default under any material
agreement or instrument to which the Company or any of its Subsidiaries is
a party or by which the Company or any of its Subsidiaries is bound;
(vi) the Company must have delivered to the Trustee an Opinion of
Counsel to the effect that, (1) 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 will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally, including Section 547 of the United
States Bankruptcy Code or Section 15 of the New York Debtor and Creditor
Law, and (2) the creation of the defeasance trust does not violate the
Investment Company Act of 1940;
(vii) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of Notes over the other creditors of the
Company with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others;
(viii) if the Notes are to be redeemed prior to their Stated
Maturity, the Company must deliver to the Trustee irrevocable instructions
to redeem all of the Notes on the specified redemption date; and
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(ix) the Company must deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant Defeasance have
been complied with.
Section 8.05. Deposited Money and Government Securities to Be Held in Trust;
Other Miscellaneous Provisions.
(a) Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with 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.
(b) The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 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.
(c) Anything in this Article Eight to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon the request of the Company any money or non-callable Government
Securities 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(a) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
Section 8.06. Repayment to the Company.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium, if
any, 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 look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining shall be repaid to the Company.
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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 and, in the case of a Legal Defeasance, the
Guarantors' obligations under their respective Note Guarantees shall be revised
and reinstated as though no deposit had occurred pursuant to Section 8.02
hereof, in each case 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 NINE
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
(a) Notwithstanding Section 9.02 of this Indenture, the Company,
the Guarantors, and the Trustee may amend or supplement this Indenture or the
Notes without the consent of any Holder of a Note:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(iii) 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 Company's or such
Guarantor's assets;
(iv) 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;
(v) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act;
(vi) to allow any Guarantor to execute a supplemental Indenture and
a Note Guarantee with respect to the Notes;
(vii) to evidence and provide for the acceptance of appointment of a
successor Trustee;
(viii) to add any Lien to secure the Notes; or
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(ix) to evidence the release of a Subsidiary Guarantor pursuant to
and in accordance with the terms of this Indenture.
(b) 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 any documents
requested under Section 7.02(b) hereof, the Trustee shall join with the Company
in the execution of any amended or supplemental Indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into such amended or supplemental Indenture that
affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.02. With Consent of Holders of Notes.
(a) Except as otherwise provided in this Section 9.02, the
Company, the Guarantors and the Trustee may amend or supplement this Indenture,
or the Notes with the consent of the Holders of at least a majority in principal
amount of the Notes then outstanding (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, 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 (including Additional Notes, if any)
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Notes).
(b) The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on such
record date, or its duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture, whether or not such Holders
remain Holders after such record date; provided that unless such consent shall
have become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
(c) Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amendment or
supplement to this 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
hereof, the Trustee shall join with the Company in the execution of such
amendment or supplement unless such amendment or supplement 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 amendment or supplement.
(d) 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, supplement or waiver, but it shall be sufficient if such consent
approves the substance thereof.
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(e) After an amendment, supplement or waiver under this Section
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 notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amendment,
supplement or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the then outstanding Notes (including
Additional Notes, if any) 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):
(i) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(ii) 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;
(iii) reduce the rate of or change the time for payment of interest
on any Note;
(iv) waive a Default or Event of Default in the payment of
principal of, or interest or premium, 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);
(v) make any Note payable in money other than U.S. dollars;
(vi) make any change in the provisions of this Indenture relating
to waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of, or interest or premium or Liquidated Damages, if
any, on the Notes;
(vii) release any Guarantor from any of its obligations under its
Note Guarantee or this Indenture, except in accordance with the terms of
this Indenture;
(viii) impair the right to institute suit for the enforcement of any
payment on or with respect to the Notes or the Note Guarantees;
(ix) 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 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;
(x) except as otherwise permitted under Section 5.01, consent to
the assignment or transfer by the Company or any Guarantor of any of their
rights or obligations under this Indenture;
86
(xi) amend or modify any of the provisions of this Indenture or the
related definitions affecting ranking of the Notes or any Note Guarantee
in any manner adverse to the holders of the Notes or any Note Guarantee;
or
(xii) make any change in the preceding amendment and waiver
provisions.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall
be set forth in a document 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 the 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.
(a) 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.
(b) 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 amendment or supplement to this Indenture
or any Note authorized pursuant to this Article Nine if the amendment or
supplement does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. The Company may not sign an amendment or supplemental
Indenture or Note until its Board of Directors approves it. In executing any
amendment or supplement or Note, the Trustee shall be entitled to receive and
(subject to Section 7.01 hereof) shall be fully protected in relying upon an
Officers' Certificate and an Opinion of Counsel stating that the execution of
such amendment or supplement is authorized or permitted by this Indenture.
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ARTICLE TEN
NOTE GUARANTEES
Section 10.01. Guarantee.
(a) Subject to this Article Ten, each of the Guarantors hereby,
jointly and severally, and fully and 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) the principal of, premium, if any, and interest and Liquidated
Damages, if any, 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, premium, if any, and interest and Liquidated Damages, if any, on
the Notes, 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 (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. 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, to the maximum extent
permitted under applicable law, 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 any provisions
hereof or thereof, 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 equitable discharge or defense of a Guarantor. Subject to Section 6.06
hereof, 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 covenants 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 any of the Company or
the Guarantors, any amount paid by any of them 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 Six
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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 Six 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 10.02. 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 (i) 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 its Note Guarantee or (ii) an unlawful distribution under any
applicable state law prohibiting shareholder distributions by an insolvent
subsidiary to the extent applicable to its Note Guarantee. To effectuate the
foregoing intention, the Trustee, the Holders and the Guarantors hereby
irrevocably agree that the obligations of such Guarantor will be limited to the
maximum amount as will, after giving effect to 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 Ten, result in the
obligations of such Guarantor under its Note Guarantee not constituting a
fraudulent transfer or conveyance or such an unlawful distribution.
Section 10.03. Execution and Delivery of Note Guarantee.
(a) To evidence its Note Guarantee set forth in Section 10.01,
each Guarantor hereby agrees that a notation of such Note Guarantee
substantially in the form included in Exhibit E shall be endorsed by an Officer
of such Guarantor by manual or facsimile signature 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.
(b) Each Guarantor hereby agrees that its Note Guarantee set forth
in Section 10.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
(c) 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.
(d) 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.
(e) If required by Section 4.18 hereof, the Company shall cause
such Subsidiaries to execute supplemental indentures to this Indenture and Note
Guarantees in accordance with Section 4.18 hereof and this Article Ten, to the
extent applicable.
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Section 10.04. Guarantors May Consolidate, Etc., on Certain Terms.
(a) A Guarantor may not sell or otherwise dispose of all or
substantially all of its assets to, or consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person), another Person, other
than the Company or another Guarantor, unless:
(i) immediately after giving effect to that transaction, no
Default or Event of Default exists; and
(ii) either:
(A) the Person acquiring the property in any such sale or
disposition or the Person formed by or surviving any such
consolidation or merger (if other than the Guarantor) is a
corporation or limited liability company organized or existing under
the laws of the United States, any state thereof or the District of
Columbia and assumes all the obligations of that Guarantor under
this Indenture, its Note Guarantee and the Registration Rights
Agreement pursuant to a supplemental indenture reasonably
satisfactory to the Trustee; or
(B) such sale or other disposition or consolidation or
merger complies with Section 4.10 hereof.
(b) 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 covenants 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.
(c) Except as set forth in Articles Four and Five of this
Indenture, and notwithstanding clauses (i) and (ii) of Section 10.04(a) 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 10.05. Release of Guarantor.
(a) Any Guarantor will be released and relieved of any obligations
under its Note Guarantee, (i) in connection with any sale or other disposition
of all of the Capital Stock of that 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 hereof; (ii) if the Company properly designates that Guarantor
as an
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Unrestricted Subsidiary under this Indenture (iii) if such Subsidiary Guarantor
ceases to be a Substantially Wholly-Owned Restricted Subsidiary; provided that
if such Subsidiary subsequently becomes a Substantially Wholly-Owned Restricted
Subsidiary, such Subsidiary shall again become a Subsidiary Guarantor and
execute a supplemental indenture; (iv) simultaneously with the liquidation or
dissolution of any Subsidiary Guarantor that, on such date of liquidation or
dissolution, has assets with an aggregate Fair Market Value of less than
$10,000; or (v) upon the legal defeasance of the Notes in accordance with
Section 8.02. Upon delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel to the effect that one of the foregoing
requirements has been satisfied and the conditions to the release of a Guarantor
under this Section 10.05 have been met, the Trustee shall execute any documents
reasonably required in order to evidence the release of such Guarantor from its
obligations under its Note Guarantee.
(b) Any Guarantor not released from its obligations under its Note
Guarantee shall remain liable for the full amount of principal of and interest
and Liquidated Damages, if any, on the Notes and for the other obligations of
any Guarantor under this Indenture as provided in this Article Ten.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE
Section 11.01. Satisfaction and Discharge.
(a) This Indenture shall be discharged and shall cease to be of
further effect as to all Notes issued thereunder, when:
(i) either:
(A) all Notes that have been authenticated (except lost,
stolen or destroyed Notes that have been replaced or paid and Notes
for whose payment money has theretofore been deposited in trust and
thereafter repaid to the Company) have been delivered to the Trustee
for cancellation; or
(B) all Notes that have not been delivered to the Trustee
for cancellation have become due and payable by reason of the making
of a notice of redemption or otherwise or will become due and
payable within one year and the Company or any Guarantor has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust solely for the benefit of the Holders, cash in
U.S. dollars, non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient without consideration
of any reinvestment of interest, to pay and discharge the entire
indebtedness on the Notes not delivered to the Trustee for
cancellation for principal, premium and Liquidated Damages, if any,
and accrued interest to the date of maturity or redemption;
(ii) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or shall occur as a result of such
deposit and such deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to
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which the Company or any Guarantor is a party or by which the Company or
any Guarantor is bound;
(iii) the Company or any Guarantor has paid or caused to be paid all
sums payable by it under this Indenture; and
(iv) the Company has delivered irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the
payment of the Notes at maturity or the redemption date, as the case may
be.
(b) In addition, the Company must deliver an Officers' Certificate
and an Opinion of Counsel to the Trustee stating that all conditions precedent
to satisfaction and discharge have been satisfied.
(c) Notwithstanding the above, the Trustee shall pay to the
Company from time to time upon its request any cash or Government Securities
held by it as provided in this section which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification delivered to the Trustee, are in excess of the amount thereof that
would then be required to be deposited to effect a satisfaction and discharge
under this Article Eleven.
(d) After the conditions to discharge contained in this Article
Eleven have been satisfied, and the Company has paid or caused to be paid all
other sums payable hereunder by the Company, and delivered to the Trustee an
Officers' Certificate and Opinion of Counsel, each stating that all conditions
precedent to satisfaction and discharge have been satisfied, the Trustee upon
written request shall acknowledge in writing the discharge of the obligations of
the Company and the Guarantors under this Indenture (except for those surviving
obligations specified in this Indenture).
Section 11.02. Deposited Money and Government Securities to Be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 11.03 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee pursuant to Section 11.01 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.
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Section 11.03. Repayment to the Company.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium and
Liquidated Damages, if any, or interest on any Note and remaining unclaimed for
two years after such principal, and premium or Liquidated Damages, if any, or
interest has become due and payable shall be paid to the Company on its request
or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Note shall thereafter look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in the New York Times or 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.
ARTICLE TWELVE
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA Section 318(c), the imposed duties shall control.
Section 12.02. Notices.
(a) Any notice or communication by the Company or any Guarantor,
on the one hand, or the Trustee on the other hand, to the other is duly given if
in writing and delivered in Person or mailed by first class mail (registered or
certified, return receipt requested), telecopier or overnight air courier
guaranteeing next day delivery, to the others' address:
If to the Company 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 4700
Charlotte, NC 28202
Facsimile: (704) 331-1159
Attention: Hal A. Levinson, Esq.
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If to the Trustee:
U.S. Bank National Association
60 Livingston Avenue
EP-MN-WS3C
St. Paul, MN 55107-2292
Facsimile: (651) 495-8097
Attention: Rick Prokosch
(b) The Company, the Guarantors or the Trustee, by notice to the
others may designate additional or different addresses for subsequent notices or
communications.
(c) All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; three Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
(d) 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 Section 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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 Section 312(b) with other
Holders with respect to its rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
Section 12.04. Certificate and Opinion as to Conditions Precedent.
(a) Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
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(i) 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; and
(ii) 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, in the opinion of such counsel (who
may rely upon and Officers' Certificate as to matters of fact), all such
conditions precedent and covenants have been satisfied.
Section 12.05. Statements Required in Certificate or Opinion.
(a) Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(i) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(ii) 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;
(iii) 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 complied with; and
(iv) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
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, 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, this 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. This 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.
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Section 12.08. Governing Law.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES.
Section 12.09. Consent to Jurisdiction.
Any legal suit, action or proceeding arising out of or based upon
this Indenture or the transactions contemplated hereby ("RELATED PROCEEDINGS")
may be instituted in the federal courts of the United States of America located
in the City of New York or the courts of the State of New York in each case
located in the City of New York (collectively, the "SPECIFIED COURTS"), and each
party irrevocably submits to the non-exclusive jurisdiction of such courts in
any such suit, action or proceeding. Service of any process, summons, notice or
document by mail (to the extent allowed under any applicable statute or rule of
court) to such party's address set forth above shall be effective service of
process for any suit, action or other proceeding brought in any such court. The
parties irrevocably and unconditionally waive any objection to the laying of
venue of any suit, action or other proceeding in the Specified Courts and
irrevocably and unconditionally waive and agree not to plead or claim in any
such court has been brought in an inconvenient forum.
Section 12.10. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Company or any of its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
Section 12.11. 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 10.04.
Section 12.12. Severability.
In case any provision in this Indenture or 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 12.13. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 12.14. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by the Holders may be embodied in
96
and evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by agents duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "ACT" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company if made in the manner provided in this Section 12.14.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to such witness, notary or officer the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of authority. The fact and date of the execution of
any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) Notwithstanding anything to the contrary contained in this
Section 12.14, the principal amount and serial numbers of Notes held by any
Holder, and the date of holding the same, shall be proved by the register of the
Notes maintained by the Registrar as provided in Section 2.04 hereof.
(d) If the Company shall solicit from the Holders of the Notes any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a resolution of its Board of
Directors, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such resolution, which shall be a date not earlier
than the date 30 days prior to the first solicitation of Holders generally in
connection therewith or the date of the most recent list of Holders forwarded to
the Trustee prior to such solicitation pursuant to Section 2.06 hereof and not
later than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of the then outstanding Notes have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the then outstanding Notes shall be computed as
of such record date; provided that no such authorization, agreement or consent
by the Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than
eleven months after the record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the
97
Holder of every Note issued upon the registration or transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Note.
(f) Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Note may do so itself
with regard to all or any part of the principal amount of such Note or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
Section 12.15. Benefit of Indenture.
Nothing, in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto, any Paying Agent, any
Registrar and its successors hereunder, and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 12.16. 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.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed,
MEDCATH HOLDINGS CORP.
MEDCATH CORPORATION
By: /s/ John T. Casey
-----------------------------
Name: John T. Casey
Title: President
Indenture
AHH MANAGEMENT, INC
AUSTIN MOB, INC.
DTO MANAGEMENT, INC.
HHBF, INC.
HARLINGEN HOSPITAL MANAGEMENT, INC.
HARLINGEN PARTNERSHIP HOLDINGS, INC.
HOSPITAL MANAGEMENT IV, INC.
LAFAYETTE HOSPITAL MANAGEMENT, INC.
LOUISIANA HOSPITAL MANAGEMENT, INC.
MEDCATH OF ARKANSAS, INC.
MEDCATH CARDIOLOGY CONSULTING & MANAGEMENT, INC.
MEDCATH INCORPORATED
MEDCATH OF TEXAS, INC.
MILWAUKEE HOSPITAL MANAGEMENT, INC.
NM HOSPITAL MANAGEMENT, INC.
SAN ANTONIO HOLDINGS, INC.
SAN ANTONIO HOSPITAL MANAGEMENT, INC.
SIOUX FALLS HOSPITAL MANAGEMENT, INC.
SOUTHERN ARIZONA HEART, INC.
VENTURE HOLDINGS, INC.
By: /s/ John T. Casey
---------------------------------
Name: John T. Casey
Title: President
Indenture
INTERIM DIAGNOSTICS SOLUTIONS, LLC
MEDCATH DIAGNOSTICS, LLC
MEDCATH FINANCE COMPANY, LLC
MEDCATH NUCLEAR SERVICES, LLC
METUCHEN NUCLEAR MANAGEMENT, LLC
By: /s/ John T. Casey
----------------------------------------
Name: John T. Casey
Title: Manager
By: /s/ James E. Harris
----------------------------------------
Name: James E. Harris
Title: Manager
HEART RESEARCH CENTERS INTERNATIONAL, LLC
BY: MEDCATH DIAGNOSTICS, LLC
By: /s/ John T. Casey
------------------------------------
Name: John T. Casey
Title: Manager
By: /s/ James E. Harris
------------------------------------
Name: James E. Harris
Title: Manager
Indenture
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: /s/ Richard H. Prokosch
------------------------------------
Name: Richard H. Prokosch
Title: Vice President
Indenture