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EXHIBIT 4.1
MANOR CARE, INC.,
THE SUBSIDIARY GUARANTORS PARTIES HERETO,
AND
NATIONAL CITY BANK,
AS TRUSTEE
8% Senior Notes due 2008
INDENTURE
Dated as of March 8, 2001
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions............................................................................... 1
Section 1.2. Other Definitions......................................................................... 10
Section 1.3. Incorporation by Reference of Trust Indenture Act......................................... 11
Section 1.4. Rules of Construction..................................................................... 11
ARTICLE II THE SECURITIES
Section 2.1. Form, Dating and Terms.................................................................... 12
Section 2.2. Execution and Authentication.............................................................. 18
Section 2.3. Registrar and Paying Agent................................................................ 19
Section 2.4. Paying Agent To Hold Money in Trust....................................................... 19
Section 2.5. Securityholder Lists...................................................................... 20
Section 2.6. Transfer and Exchange..................................................................... 20
Section 2.7. Form of Certificate to be Delivered in Connection with Transfers to Institutional
Accredited Investors.............................................................. 23
Section 2.8. Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S. 25
Section 2.9. Mutilated, Destroyed, Lost or Stolen Securities........................................... 26
Section 2.10. Outstanding Securities.................................................................... 26
Section 2.11. Temporary Securities...................................................................... 27
Section 2.12. Cancellation.............................................................................. 27
Section 2.13. Payment of Interest; Defaulted Interest................................................... 28
Section 2.14. Computation of Interest................................................................... 29
Section 2.15. CUSIP and ISIN Numbers.................................................................... 29
ARTICLE III COVENANTS
Section 3.1. Payment of Securities..................................................................... 29
Section 3.2. [Reserved]................................................................................ 29
Section 3.3. Limitation on Liens....................................................................... 29
Section 3.4. Limitation on Sale and Lease-Back Transactions............................................ 31
Section 3.5. Limitation on Affiliate Transactions...................................................... 31
Section 3.6. Change of Control......................................................................... 31
Section 3.7. Financial Statements...................................................................... 33
Section 3.8. Future Subsidiary Guarantors; Release of Guarantees....................................... 34
Section 3.9. Maintenance of Office or Agency........................................................... 35
Section 3.10. Corporate Existence....................................................................... 35
Section 3.11. Payment of Taxes and Other Claims......................................................... 35
Section 3.12. Payments for Consent...................................................................... 36
Section 3.13. Compliance Certificate.................................................................... 36
Section 3.14. Further Instruments and Acts.............................................................. 36
Section 3.15. Statement by Officers as to Default....................................................... 36
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ARTICLE IV SUCCESSOR COMPANY
Section 4.1. Consolidation, Merger and Sale of Assets.................................................. 36
ARTICLE V REDEMPTION OF SECURITIES
Section 5.1. Optional Redemption....................................................................... 37
Section 5.2. Applicability of Article.................................................................. 38
Section 5.3. Election to Redeem; Notice to Trustee..................................................... 38
Section 5.4. Selection by Trustee of Securities to Be Redeemed......................................... 38
Section 5.5. Notice of Redemption...................................................................... 38
Section 5.6. Deposit of Redemption Price............................................................... 39
Section 5.7. Securities Payable on Redemption Date..................................................... 39
Section 5.8. Securities Redeemed in Part............................................................... 40
ARTICLE VI DEFAULTS AND REMEDIES
Section 6.1. Events of Default......................................................................... 40
Section 6.2. Acceleration.............................................................................. 42
Section 6.3. Other Remedies............................................................................ 42
Section 6.4. Waiver of Past Defaults................................................................... 42
Section 6.5. Control by Majority....................................................................... 43
Section 6.6. Limitation on Suits....................................................................... 43
Section 6.7. Rights of Holders to Receive Payment...................................................... 43
Section 6.8. Collection Suit by Trustee................................................................ 43
Section 6.9. Trustee May File Proofs of Claim.......................................................... 44
Section 6.10. Priorities................................................................................ 44
Section 6.11. Undertaking for Costs..................................................................... 44
ARTICLE VII TRUSTEE
Section 7.1. Duties of Trustee.......................................................................... 45
Section 7.2. Rights of Trustee.......................................................................... 46
Section 7.3. Individual Rights of Trustee............................................................... 46
Section 7.4. Trustee's Disclaimer....................................................................... 47
Section 7.5. Notice of Defaults......................................................................... 47
Section 7.6. Reports by Trustee to Holders.............................................................. 47
Section 7.7. Compensation and Indemnity................................................................. 47
Section 7.8. Replacement of Trustee..................................................................... 48
Section 7.9. Successor Trustee by Merger................................................................ 49
Section 7.10. Eligibility; Disqualification............................................................. 49
Section 7.11. Preferential Collection of Claims Against Company......................................... 49
Section 7.12. Trustee's Application for Instruction from the Company.................................... 50
ARTICLE VIII DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.1. Discharge of Liability on Securities; Defeasance........................................... 50
Section 8.2. Conditions to Defeasance................................................................... 51
Section 8.3. Application of Trust Money................................................................. 53
Section 8.4. Repayment to Company....................................................................... 53
Section 8.5. Indemnity for U.S. Government Securities................................................... 53
Section 8.6. Reinstatement.............................................................................. 53
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ARTICLE IX AMENDMENTS
Section 9.1. Without Consent of Holders................................................................. 53
Section 9.2. With Consent of Holders.................................................................... 54
Section 9.3. Compliance with Trust Indenture Act........................................................ 55
Section 9.4. Revocation and Effect of Consents and Waivers.............................................. 55
Section 9.5. Notation on or Exchange of Securities...................................................... 55
Section 9.6. Trustee To Sign Amendments................................................................. 56
ARTICLE X SUBSIDIARY GUARANTEE
Section 10.1. Subsidiary Guarantee...................................................................... 56
Section 10.2. Limitation on Liability; Termination, Release and Discharge Upon Merger or Consolidation.. 57
Section 10.3. Right of Contribution..................................................................... 58
Section 10.4. No Subrogation............................................................................ 58
ARTICLE XI MISCELLANEOUS
Section 11.1. Trust Indenture Act Controls.............................................................. 59
Section 11.2. Notices................................................................................... 59
Section 11.3. Communication by Holders with other Holders............................................... 60
Section 11.4. Certificate and Opinion as to Conditions Precedent........................................ 60
Section 11.5. Statements Required in Certificate or Opinion............................................. 60
Section 11.6. When Securities Disregarded............................................................... 61
Section 11.7. Rules by Trustee, Paying Agent and Registrar.............................................. 61
Section 11.8. Legal Holidays............................................................................ 61
SECTION 11.9. GOVERNING LAW............................................................................. 61
Section 11.10. No Recourse Against Others............................................................... 61
Section 11.11. Successors............................................................................... 62
Section 11.12. Multiple Originals....................................................................... 62
Section 11.13. Variable Provisions...................................................................... 62
Section 11.14. Qualification of Indenture............................................................... 62
Section 11.15. Table of Contents; Headings.............................................................. 62
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EXHIBIT A Form of the Initial Security
EXHIBIT B Form of the Exchange Security
EXHIBIT C Form of Indenture Supplement to Add Subsidiary Guarantors
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
310(a)(1) ........................................... 7.10
(a)(2) ........................................... 7.10
(a)(3) ........................................... N.A.
(a)(4) ........................................... N.A.
(b) ........................................... 7.8; 7.10
(c) ........................................... N.A.
311(a) ........................................... 7.11
(b) ........................................... 7.11
(c) ........................................... N.A.
312(a) ........................................... 2.5
(b) ........................................... 11.3
(c) ........................................... 11.3
313(a) ........................................... 7.6
(b)(1) ........................................... N.A.
(b)(2) ........................................... 7.6
(c) ........................................... 7.6
(d) ........................................... 7.6
314(a) ........................................... 3.13; 11.2, 11.5
(b) ........................................... N.A.
(c)(1) ........................................... 11.4
(c)(2) ........................................... 11.4
(c)(3) ........................................... N.A.
(d) ........................................... N.A.
(e) ........................................... 11.5
315(a) ........................................... 7.1
(b) ........................................... 7.5; 11.2
(c) ........................................... 7.1
(d) ........................................... 7.1
(e) ........................................... 6.11
316(a)(last sentence) ........................................... 11.6
(a)(1)(A) ........................................... 6.5
(a)(1)(B) ........................................... 6.4
(a)(2) ........................................... N.A.
(b) ........................................... 6.7
317(a)(1) ........................................... 6.8
(a)(2) ........................................... 6.9
(b) ........................................... 2.4
318(a) ........................................... 11.1
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
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INDENTURE dated as of March 8, 2001, among MANOR CARE, INC., a
Delaware corporation (the "Company"), THE SUBSIDIARY GUARANTORS (as defined) and
NATIONAL CITY BANK, a national banking association (the "Trustee"), as Trustee.
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of (i) the
Company's 8% Senior Notes due 2008 on the date hereof and the guarantees thereof
by certain of the Company's subsidiaries (the "Original Securities" or "Initial
Securities"), and (ii) if and when issued in exchange for Initial Securities as
provided in the Exchange and Registration Rights Agreement or a similar
agreement relating to Initial Securities, the Company's 8% Series B Senior Notes
due 2008 and the guarantees thereof by certain of the Company's subsidiaries
(the "Exchange Securities") and (iii) if and when issued as provided in the
Exchange and Registration Rights Agreement, the Private Exchange Securities (as
defined in the Exchange and Registration Rights Agreement; together with Initial
Securities and Exchange Securities, the "Securities").
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1. Definitions.
"2006 Notes" means MCA's $150.0 million principal amount of
7-1/2% Senior Notes Due 2006.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling, controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing; provided, however, that the existence of a management contract by the
Company or an Affiliate of the Company to manage another entity shall not be
deemed to be control.
"Applicable Percentage" means (i) 15%, if the aggregate
principal amount of notes and debt securities issued under other indentures or
fiscal agency agreements or other similar instruments (collectively, "Debt
Securities") then outstanding exceeds $100,000,000, (ii) 20%, if the aggregate
principal amount of Debt Securities then outstanding exceeds $50,000,000 but is
less than or equal to $100,000,000, or (iii) 25%, if the aggregate principal
amount of Debt Securities outstanding is less than or equal to $50,000,000.
"Attributable Debt" in respect of a Sale and Lease-Back
Transaction means, as at the time of determination, the present value
(discounted at the interest rate borne by the Securities, compounded
semi-annually) of the total obligations of the lessee for rental payments during
the remaining term of the lease included in such Sale and Lease-Back Transaction
(including any period for which such lease has been extended).
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"Bank Debt" means any and all amounts, whether outstanding on
the Issue Date or Incurred after the Issue Date, payable by the Company under or
in respect of the Senior Credit Agreement and any related notes, collateral
documents, letters of credit and guarantees and any Interest Rate Agreement
entered into in connection with the Senior Credit Agreement, including
principal, premium, if any, interest (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to the
Company at the rate specified therein whether or not a claim for post filing
interest is allowed in such proceedings), fees, charges, expenses, reimbursement
obligations, guarantees and all other amounts payable thereunder or in respect
thereof.
"Board of Directors" means, as to any Person, the board of
directors of such Person or any duly authorized committee thereof.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banking institutions are authorized or required by
law to close in New York City and Cleveland, Ohio.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into such equity.
"Capitalized Lease Obligations" means an obligation that is
required to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Debt represented
by such obligation will be the capitalized amount of such obligation at the time
any determination thereof is to be made as determined in accordance with GAAP,
and the Stated Maturity thereof will be the date of the last payment of rent or
any other amount due under such lease prior to the first date such lease may be
terminated without penalty.
"Change of Control" means:
(1) any "person" or "group" of related persons (as such
terms are used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that such person or group shall be deemed
to have "beneficial ownership" of all shares that any
such person or group has the right to acquire,
whether such right is exercisable immediately or only
after the passage of time), directly or indirectly,
of more than 50% of the total voting power of the
Voting Stock of the Company (or its successor by
merger, consolidation or purchase of all or
substantially all of its assets) (for the purposes of
this clause, such person or group shall be deemed to
beneficially own any Voting Stock of the Company held
by a parent entity, if such person or group
"beneficially owns" (as defined above), directly or
indirectly, more than 50% of the voting power of the
Voting Stock of such parent entity); or
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(2) the first day on which a majority of the members of
the Board of Directors of the Company are not
Continuing Directors;
(3) the sale, lease, transfer, conveyance or other
disposition (other than by way of merger or
consolidation), in one or a series of related
transactions, of all or substantially all of the
assets of the Company and its Subsidiaries taken as a
whole to any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act); or
(4) the adoption by the stockholders of the Company of a
plan or proposal for the liquidation or dissolution
of the Company.
"Change of Control Triggering Event" means the occurrence of a
Change of Control accompanied by a Rating Decline.
"Closing Date" with respect to any Initial Securities, means
the date on which such Initial Securities are originally issued.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means Manor Care, Inc. or its successor.
"Consolidated Net Assets" means, with respect to any Person as
of any date of determination, the total assets of such Person and its
subsidiaries on a consolidated basis less current liabilities of such Person and
its subsidiaries on a consolidated basis as of such date, all determined in
accordance with GAAP.
"Continuing Directors" means, as of any date of determination,
any member of the Board of Directors of the Company who: (1) was a member of
such Board of Directors on the date of the 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.
"Debt" means, with respect to any Person on any date of
determination (without duplication):
(1) the principal of and premium (if any) in respect of
indebtedness of such Person for borrowed money;
(2) the principal of and premium (if any) in respect of
obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(3) the principal component of all obligations of such
Person in respect of letters of credit, bankers'
acceptances or other similar instruments (including
reimbursement obligations with respect thereto except
to the extent such reimbursement obligation relates
to a trade payable and such obligation is satisfied
within 30 days of Incurrence);
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(4) the principal component of all obligations of such
Person to pay the deferred and unpaid purchase price
of property (except trade payables), which purchase
price is due more than six months after the date of
placing such property in service or taking delivery
and title thereto;
(5) Capitalized Lease Obligations and all Attributable
Debt of such Person; and
(6) the principal component of Debt of other Persons to
the extent Guaranteed by such Person.
The amount of Debt of any Person at any date will be the outstanding balance at
such date of all unconditional obligations as described above and the maximum
liability, upon the occurrence of the contingency giving rise to the obligation,
of any contingent obligations at such date.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Definitive Securities" means certificated Securities.
"DTC" means The Depository Trust Company, its nominees and
their respective successors and assigns, or such other depository institution
hereinafter appointed by the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange and Registration Rights Agreement" means the
Exchange and Registration Rights Agreement dated the Issue Date among the
Initial Purchasers, the Subsidiary Guarantors and the Company.
"Exchange Securities" has the meaning ascribed to it in the
second introductory paragraph of this Indenture.
"Existing Liens" means Liens on property or assets of the
Company or any Subsidiary existing on the Issue Date.
"Fiscal Year" means the fiscal year of the Company ending on
December 31 of each year.
"Foreign Subsidiary" of the Company shall mean any Subsidiary
which is incorporated or organized in a jurisdiction outside the United States
and any Subsidiary of such a Subsidiary.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession as in effect from time to time.
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"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Debt of any other Person and
any obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Debt of such other
Person (whether arising by virtue of partnership
arrangements, or by agreement to keep-well, to
purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement
conditions or otherwise); or
(2) entered into for purposes of assuring in any other
manner the obligee of such Debt of the payment
thereof or to protect such obligee against loss in
respect thereof (in whole or in part);
provided, however, that the term "Guarantee" will not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered in the Note Register.
"Incur" means issue, create, assume, Guarantee, incur or
otherwise become liable for; and the terms "Incurred" and "Incurrence" have
meanings correlative to the foregoing.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Initial Purchasers" means, collectively, JPMorgan, a division
of Chase Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Banc of America Securities LLC and UBS Warburg LLC.
"Initial Securities" has the meaning ascribed to it in the
second introductory paragraph of this Indenture.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement as to which such Person is party or a
beneficiary.
"Issue Date" means the date on which the Original Securities
are originally issued.
"Legal Holiday" has the meaning ascribed to it in Section
11.8.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof).
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"MCA" means Manor Care of America, Inc., a Delaware
corporation and a wholly-owned subsidiary of the Company, or any of its
successors and assigns.
"Moody's" means Moody's Investors Service, Inc., or, if
Moody's Investors Service, Inc. shall cease rating debt securities having a
maturity at original issuance of at least one year and such ratings business
shall have been transferred to a successor Person, such successor Person;
provided, however, that if there is no successor Person, then "Moody's" shall
mean any other national recognized rating agency, other than S&P, that rates
debt securities having a maturity at original issuance of at least one year and
that shall have been designated by the Company.
"Non-Recourse Debt" means Debt or that portion of Debt (i) as
to which neither the Company nor its Subsidiaries (other than a Non-Recourse
Subsidiary) (A) provides credit support (including any undertaking, agreement or
instrument which would constitute Debt), (B) is directly or indirectly liable or
(C) constitute the lender and (ii) in respect of which a default (including any
rights which the holders thereof may have to take enforcement action against a
Non-Recourse Subsidiary) would not permit (upon notice, lapse of time or both)
any holder of any other Debt of the Company or its Subsidiaries (including any
Non-Recourse Subsidiary) to declare a default on such other Debt or cause a
payment thereof to be accelerated or payable prior to its Stated Maturity.
"Non-Recourse Subsidiary" means a Subsidiary which (i) has not
acquired any assets (other than cash) directly or indirectly from the Company or
any Subsidiary, (ii) only owns assets acquired after the Issue Date or assets
acquired prior to the date such entity becomes a Subsidiary and (iii) has no
Debt other than Non-Recourse Debt.
"Non-U.S. Person" means a person who is not a U.S. person, as
defined in Regulation S.
"Note Register" means the register of Securities, maintained
by the Registrar, pursuant to Section 2.3.
"Obligations" has the meaning ascribed to it in Section 10.1.
"Officer" means the Chairman of the Board, the President, the
Chief Financial Officer, any Vice President, the Treasurer or the Secretary of
the Company.
"Officers' Certificate" means a certificate signed by two
Officers or attorneys-in-fact or by an Officer and either an Assistant Treasurer
or an Assistant Secretary of the Company or the Subsidiary Guarantors, as
applicable.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Original Securities" means the Company's 8% Senior Notes due
2008 originally issued on the Issue Date.
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"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company, government or any agency or political subdivision
hereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Private Exchange Securities" shall have the meaning set forth
in the Exchange and Registration Rights Agreement or a similar agreement
relating to Initial Securities.
"QIB" means any "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act).
"Rating Agencies" mean Moody's and S&P.
"Rating Date" means the earlier of the date of public notice
of (i) the occurrence of a Change of Control or (ii) the intention of the
Company to effect a Change of Control.
"Rating Decline" shall be deemed to have occurred if, no later
than 90 days after the Rating Date (which period shall be extended so long as
the rating of the Securities is under publicly announced consideration for
possible downgrade by either of the Rating Agencies), either of the Rating
Agencies assigns a rating to the Securities that is lower than the applicable
rating of the Securities on the Rating Date. A downgrade within rating
categories, as well as between rating categories, will be considered a Rating
Decline.
"Receivables Securitization" means a public or private
transfer of or creation of an interest in receivables in the ordinary course of
business of the Company and its Subsidiaries and by which the Company or any
such Subsidiary directly or indirectly securitizes a pool of receivables,
including but not limited to any such transaction involving the sale of or
creation of an interest in specified receivables to a special purpose entity.
"Redemption Date" means, with respect to any redemption of
Securities, the date of redemption with respect thereto.
"Registered Exchange Offer" shall have the meaning set forth
in the Exchange and Registration Rights Agreement.
"Restricted Period" means the 40 consecutive days beginning on
and including the later of (A) the day on which the Initial Securities are
offered to persons other than distributors (as defined in Regulation S under the
Securities Act) and (B) the Issue Date.
"Restricted Securities Legend" means the Private Placement
Legend set forth in clause (1) of Section 2.1(c) or the Regulation S Legend set
forth in clause (2) of Section 2.1(c), as applicable.
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"S&P" means Standard & Poor's Ratings Service or, if Standard
& Poor's Ratings Service shall cease rating debt securities having a maturity at
original issuance of at least one year and such ratings business shall have been
transferred to a successor Person, such successor Person; provided, however,
that if there is no successor Person, then "S&P" shall mean any other national
recognized rating agency, other than Moody's, that rates debt securities having
a maturity at original issuance of at least one year and that shall have been
designated by the Company.
"Sale and Lease-Back Transaction" means any arrangement with
any Person providing for the leasing by the Company or its Subsidiaries of any
property or assets (other than any such arrangement involving (i) a lease for a
term, including renewal rights, of not more than 36 months, (ii) a lease of
property within 18 months from the acquisition or, in the case of the
construction, alteration or improvement of property, the later of the completion
of the construction, alteration or improvement of such property or the
commencement of commercial operation of the property, or (iii) leases between or
among the Company and a Subsidiary or Subsidiaries), which property or asset has
been or is to be sold or transferred by the Company or a Subsidiary to such
Person.
"SEC" means the Securities and Exchange Commission.
"Securities" means the collective reference to the Initial
Securities, Exchange Securities and Private Exchange Securities.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to the
Global Security (as appointed by DTC), or any successor Person thereto and shall
initially be the Trustee.
"Senior Credit Agreement" means, with respect to the Company,
one or more debt facilities (including, without limitation, (i) the Credit
Agreement, dated as of September 25, 1998, among the Company, MCA, Bank of
America, N.A., as Administrative Agent, and the lenders parties thereto from
time to time, as amended by the First Amendment to Five Year Credit Agreement,
dated as of February 9, 2000, and by the Second Amendment to Five Year Credit
Agreement, dated as of September 22, 2000, and as may be further amended or
modified from time to time, and (ii) the Credit Agreement, dated as of September
25, 1998, among the Company, MCA, Bank of America, N.A., as Administrative
Agent, and the lenders parties thereto from time to time, as amended by the
First Amendment to 364 Day Credit Agreement, dated as of September 24, 1999, and
by the Second Amendment to 364 Day Credit Agreement, dated as of February 9,
2000, and by the Third Amendment to 364 Day Credit Agreement, dated as of
September 22, 2000, and as may be further amended or modified from time to time)
or commercial paper facilities with banks or other institutional lenders
providing for revolving credit loans, term loans or letters of credit, in each
case, as amended, restated, modified, renewed, refunded, replaced or refinanced
in whole or in part from time to time (and whether or not with the original
administrative agent and lenders or another administrative agent or agents or
other lenders and whether provided under the original Credit Agreement or any
other credit or other agreement or indenture).
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"Significant Subsidiary" means any Subsidiary that would be a
"Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision, but shall not include any contingent obligations
to repay, redeem or repurchase any such principal prior to the date originally
scheduled for the payment thereof.
"Subsidiary" of the Company means (i) a corporation a majority
of whose Capital Stock with voting power, under ordinary circumstances, to elect
directors is at the time, directly or indirectly, owned by the Company, by the
Company and one or more Subsidiaries of the Company or by one or more
Subsidiaries of the Company or (ii) any other Person (other than a corporation)
in which the Company, one or more Subsidiaries of the Company or the Company and
one or more Subsidiaries of the Company, directly or indirectly, at the date of
determination thereof, has greater than a 50% ownership interest.
"Subsidiary Guarantee" means, individually, any Guarantee of
payment of the Securities by a Subsidiary Guarantor pursuant to the terms of
this Indenture and any supplemental indenture hereto (including pursuant to
Exhibit C), and, collectively, all such Guarantees. Each such Subsidiary
Guarantee will be in the form prescribed by this Indenture.
"Subsidiary Guarantor" means MCA and each Subsidiary of the
Company (other than a Subsidiary that does not guarantee obligations under the
2006 Notes) in existence on the Issue Date and, any Subsidiary that is required
to Guarantee the Securities under the terms of this Indenture.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act
of 1939 (15 U.S.C. Sections 77aaa-77bbbb), as in effect on the date of this
Indenture.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
"Trust Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"U.S. Government Securities" means securities that are (a)
direct obligations of the United States of America for the timely payment of
which its full faith and credit is pledged or (b) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a
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depository receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act), as custodian with respect to any such U.S. Government
Securities or a specific payment of principal of or interest on any such U.S.
Government Securities held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Securities or the specific payment of principal
of or interest on the U.S. Government Securities evidenced by such depository
receipt.
"Voting Stock" of a corporation means all classes of Capital
Stock of such corporation then outstanding and normally entitled to vote in the
election of directors.
SECTION 1.2. Other Definitions.
Defined in
Term Section
---- ----------
"Affiliate Transaction" 3.5
"Agent" 3.9
"Agent Member" 2.1(d)
"Authenticating Agent" 2.2
"Bankruptcy Law" 6.1
"Change of Control" 3.8
"Change of Control Offer" 3.6
"Change of Control Payment" 3.6
"Change of Control Payment Date" 3.6
"Company Order" 2.2
"covenant defeasance option" 8.1(b)
"cross-acceleration provision" 6.1
"Custodian" 6.1
"Defaulted Interest" 2.13
"Event of Default" 6.1
"Exchange Global Note" 2.1(a)
"Global Securities" 2.1(a)
"Global Securities Legend" 2.1(c)
"IAI" 2.1(a)
"Institutional Accredited Investor Global Note" 2.1(a)
"legal defeasance option" 8.1(b)
"Paying Agent" 2.3
"Private Placement Legend" 2.1(c)
"Payment Default" 6.1
"Registrar" 2.3
"Regulation S" 2.1(a)
"Regulation S Global Note" 2.1(a)
"Regulation S Legend" 2.1(c)
"Regulation S Note" 2.1(a)
"Resale Restriction Termination Date" 2.6
"Rule 144A" 2.1(a)
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"Rule 144A Global Note" 2.1(a)
"Rule 144A Note" 2.1(a)
"Special Interest Payment Date" 2.13
"Special Record Date" 2.13
"Successor Company" 4.1
SECTION 1.3. Incorporation by Reference of Trust Indenture
Act. This Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company and
any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined in the TIA by reference to another statute or defined by SEC
rule have the meanings assigned to them by such definitions.
SECTION 1.4. Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular;
(6) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with GAAP; and
(7) the principal amount of any Preferred Stock shall be (i)
the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with respect
to such Preferred Stock, whichever is greater.
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ARTICLE II
The Securities
SECTION 2.1. Form, Dating and Terms. (a) The Original
Securities are being offered and sold by the Company pursuant to a Purchase
Agreement, dated March 1, 2001, among the Company, the Subsidiary Guarantors and
the Initial Purchasers. The Original Securities will be resold initially only to
(A) qualified institutional buyers (as defined in Rule 144A under the Securities
Act ("Rule 144A")) in reliance on Rule 144A ("QIBs") and (B) Persons other than
U.S. Persons (as defined in Regulation S under the Securities Act ("Regulation
S")) in reliance on Regulation S. Such Original Securities may thereafter be
transferred to among others, QIBs, purchasers in reliance on Regulation S and
IAIs in accordance with Rule 501 of the Securities Act in accordance with the
procedure described herein.
Initial Securities offered and sold to the Initial Purchasers,
and subsequently resold to QIBs in the United States of America in reliance on
Rule 144A (the "Rule 144A Note"), will be issued on the Issue Date in the form
of a permanent global Security, without interest coupons, substantially in the
form of Exhibit A, which is hereby incorporated by reference and made a part of
this Indenture, including appropriate legends as set forth in (c) (the "Rule
144A Global Note"), deposited with the Trustee, as custodian for DTC, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The Rule 144A Global Note may be represented by more than one
certificate, if so required by DTC's rules regarding the maximum principal
amount to be represented by a single certificate. The aggregate principal amount
of the Rule 144A Global Note may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for DTC or its
nominee, as hereinafter provided.
Initial Securities offered, sold and resold outside the United
States of America (the "Regulation S Note") in reliance on Regulation S shall be
issued in the form of a permanent global Security substantially in the form of
Exhibit A, including appropriate legends as set forth in (c) (the "Regulation S
Global Note"), deposited with the Trustee, as custodian for DTC, duly executed
by the Company and authenticated by the Trustee as hereinafter provided. The
Regulation S Global Note may be represented by more than one certificate, if so
required by DTC's rules regarding the maximum principal amount to be represented
by a single certificate. The aggregate principal amount of the Regulation S
Global Note may from time to time be increased or decreased by adjustments made
on the records of the Trustee, as custodian for DTC or its nominee, as
hereinafter provided.
Initial Securities resold after an initial resale to QIBs in
reliance on Rule 144A or an initial resale in reliance on Regulation S to
institutional "accredited investors" (as defined in Rules 501(a)(1), (2), (3)
and (7) under the Securities Act) who are not QIBs ("IAIs") in the United States
of America will be issued in the form of a permanent global Security
substantially in the form of Exhibit A (the "Institutional Accredited Investor
Global Note") deposited with the Trustee, as custodian for DTC, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
Institutional Accredited Investor Global Note may be represented by more that
one certificate, if so required by DTC's rules regarding the maximum principal
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amount to be represented by a single certificate. The aggregate principal amount
of the Institutional Accredited Investor Global Note may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for DTC or its nominee, as hereinafter provided.
Exchange Securities exchanged for interests in the Rule 144A
Note, the Regulation S Note and the Institutional Accredited Investor Global
Note will be issued in the form of a permanent global Security substantially in
the form of Exhibit B, which is hereby incorporated by reference and made a part
of this Indenture, deposited with the Trustee as hereinafter provided, including
the appropriate legend set forth in (c) (the "Exchange Global Note"). The
Exchange Global Note may be represented by more than one certificate, if so
required by DTC's rules regarding the maximum principal amount to be represented
by a single certificate.
The Rule 144A Global Note, the Regulation S Global Note, the
Institutional Investor Global Note and the Exchange Global Note are sometimes
collectively herein referred to as the "Global Securities."
Except as described in the succeeding two sentences, the
principal of (and premium, if any) and interest on the Securities shall be
payable at the office or agency of the Company maintained for such purpose in
The City of New York, or at such other office or agency of the Company as may be
maintained for such purpose pursuant to Section 2.3; provided, however, that, at
the option of the Company, each installment of interest may be paid by check
mailed to addresses of the Persons entitled thereto as such addresses shall
appear on the Note Register. Payments in respect of Securities represented by a
Global Security (including principal, premium and interest) will be made by wire
transfer of immediately available funds to the accounts specified by DTC.
Payments in respect of Securities represented by Definitive Securities
(including principal, premium, if any, and interest) held by a Holder of at
least $1,000,000 aggregate principal amount of Securities represented by
Definitive Securities will be made by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States if such Holder elects
payment by wire transfer by giving written notice to the Trustee or the Paying
Agent to such effect designating such account no later than 15 days immediately
preceding the relevant due date for payment (or such other date as the Trustee
may accept in its discretion).
The Private Exchange Securities shall be in the form of
Exhibit A. The Securities may have notations, legends or endorsements required
by law, stock exchange rule or usage, in addition to those set forth on Exhibits
A and B and in (c). The Company and the Trustee shall approve the forms of the
Securities and any notation, endorsement or legend on them. Each Security shall
be dated the date of its authentication. The terms of the Securities set forth
in Exhibit A and Exhibit B are part of the terms of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to be bound by such terms.
(b) Denominations. The Securities shall be issuable only in
fully registered form, without coupons, and only in denominations of $1,000 and
any integral multiple thereof.
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(c) Restrictive Legends. Unless and until (i) an Initial
Security is sold under an effective registration statement or (ii) an Initial
Security is exchanged for an Exchange Security in connection with an effective
registration statement, in each case pursuant to the Exchange and Registration
Rights Agreement or a similar agreement,
1. the Rule 144A Global Note and the Institutional Accredited Investor Global
Note shall bear the following legend (the "Private Placement Legend") on the
face thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, ON ITS OWN
BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR
TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT 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 SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT
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 THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL ACCREDITED INVESTOR
WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH
CASE IN A TRANSACTION INVOLVING A MINIMUM PRINCIPAL AMOUNT OF THE
SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO
OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER 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
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TRANSFER PURSUANT TO CLAUSES (D), (E) AND (F) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.";
and
2. the Regulation S Global Note shall bear the following legend (the "Regulation
S Legend") on the face thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS NOT A
U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND
IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH REGULATION S UNDER THE SECURITIES ACT ("REGULATION S"), (2) BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE")
THAT 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 SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY
(A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT
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 THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S, (E)
TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING
THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A TRANSACTION
INVOLVING A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR
(F) PURSUANT TO ANY OTHER 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 PURSUANT TO
CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER
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INFORMATION SATISFACTORY TO EACH OF THEM AND IN THE CASE OF THE
FOREGOING CLAUSE (E), A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE COMPANY AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED
AFTER 40 CONSECUTIVE DAYS BEGINNING ON AND INCLUDING THE LATER OF (A)
THE DAY ON WHICH THE SECURITIES ARE OFFERED TO PERSONS OTHER THAN
DISTRIBUTORS (AS DEFINED IN REGULATION S) AND (B) THE DATE OF THE
CLOSING OF THE ORIGINAL OFFERING. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN
TO THEM BY REGULATION S UNDER THE SECURITIES ACT."
3. The Global Securities, whether or not an Initial Security, shall bear the
following legend on the face thereof:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW
YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF."
(d) Book-Entry Provisions. (i) This Section 2.1(d) shall apply
only to Global Securities deposited with the Trustee, as custodian for DTC.
(ii) Each Global Security initially shall (x) be registered in
the name of DTC for such Global Security or the nominee of DTC, (y) be delivered
to the Trustee as custodian for DTC and (z) bear legends as set forth in Section
2.1(c).
(iii) Members of, or participants in, DTC ("Agent Members")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by DTC or by the Trustee as the custodian of DTC or under
such Global Security, and DTC may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of
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such Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by DTC or impair, as between DTC and its Agent
Members, the operation of customary practices of DTC governing the exercise of
the rights of a Holder of a beneficial interest in any Global Security.
(iv) In connection with any transfer of a portion of the
beneficial interest in a Global Security pursuant to subsection (e) of this
Section to beneficial owners who are required to hold Definitive Securities, the
Securities Custodian shall reflect on its books and records the date and a
decrease in the principal amount of such Global Security in an amount equal to
the principal amount of the beneficial interest in the Global Security to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more Definitive Securities of like tenor and amount.
(v) In connection with the transfer of an entire Global
Security to beneficial owners pursuant to subsection (e) of this Section, such
Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by DTC in exchange for its
beneficial interest in such Global Security, an equal aggregate principal amount
of Definitive Securities of authorized denominations.
(vi) The registered Holder of a Global Security may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Indenture or the Securities.
(e) Definitive Securities. (i) Except as provided below,
owners of beneficial interests in Global Securities will not be entitled to
receive Definitive Securities. If required to do so pursuant to any applicable
law or regulation, beneficial owners may obtain Definitive Securities in
exchange for their beneficial interests in a Global Security upon written
request in accordance with DTC's and the Registrar's procedures. In addition,
Definitive Securities shall be transferred to all beneficial owners in exchange
for their beneficial interests in a Global Security if (a) DTC notifies the
Company that it is unwilling or unable to continue as depositary for such Global
Security or DTC ceases to be a clearing agency registered under the Exchange
Act, at a time when DTC is required to be so registered in order to act as
depositary, and in each case a successor depositary is not appointed by the
Company within 90 days of such notice or, (b) the Company executes and delivers
to the Trustee and Registrar an Officers' Certificate stating that such Global
Security shall be so exchangeable or (c) an Event of Default has occurred and is
continuing and the Registrar has received a request from DTC.
(ii) Any Definitive Security delivered in exchange for an
interest in a Global Security pursuant to Section 2.1(d)(iv) or (v) shall,
except as otherwise provided by Section 2.6(c), bear the applicable legend
regarding transfer restrictions applicable to the Definitive Security set forth
in Section 2.1(c).
(iii) In connection with the exchange of a portion of a
Definitive Security for a beneficial interest in a Global Security, the Trustee
shall cancel such Definitive Security, and the
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Company shall execute, and the Trustee shall authenticate and deliver, to the
transferring Holder a new Definitive Security representing the principal amount
not so transferred.
SECTION 2.2. Execution and Authentication. One Officer shall
sign the Securities for the Company by manual or facsimile signature. If an
Officer whose signature is on a Security no longer holds that office at the time
the Trustee authenticates the Security, the Security shall be valid
nevertheless, after giving effect to any exchange of Initial Securities for
Exchange Securities.
A Security shall not be valid until an authorized signatory of
the Trustee manually authenticates the Security. The signature of the Trustee on
a Security shall be conclusive evidence that such Security has been duly and
validly authenticated and issued under this Indenture. A Security shall be dated
the date of its authentication.
At any time and from time to time after the execution and
delivery of this Indenture, the Trustee shall authenticate and make available
for delivery: (1) Original Securities for original issue on the Issue Date in an
aggregate principal amount of $200.0 million and (2) Exchange Securities for
issue only in a Registered Exchange Offer pursuant to the Exchange and
Registration Rights Agreement, and only in exchange for Initial Securities of an
equal principal amount, in each case upon a written order of the Company signed
by two Officers or by an Officer and either an Assistant Treasurer or an
Assistant Secretary of the Company (the "Company Order"). Such Company Order
shall specify the amount of the Securities to be authenticated and the date on
which the original issue of Securities is to be authenticated and whether the
Securities are to be Initial Securities or Exchange Securities. The aggregate
principal amount of notes which may be authenticated and delivered under this
Indenture is limited to $200.0 million outstanding, except for Securities
authenticated and delivered upon registration or transfer of, or in exchange
for, or in lieu of, other Securities of the same class pursuant to Section 2.6,
Section 2.9, Section 2.11, Section 5.8, Section 9.5 and except for transactions
similar to the Registered Exchange Offer. All Securities issued on the Issue
Date shall be identical in all respects other than issue dates, the date from
which interest accrues and any changes relating thereto. Notwithstanding
anything to the contrary contained in this Indenture, all notes issued under
this Indenture shall vote and consent together on all matters as one class and
no series of notes will have the right to vote or consent as a separate class on
any matter.
The Trustee may appoint an agent (the "Authenticating Agent")
reasonably acceptable to the Company to authenticate the Securities. Unless
limited by the terms of such appointment, any such Authenticating Agent may
authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by the
Authenticating Agent. An Authenticating Agent has the same rights as a Paying
Agent to deal with Holders or an Affiliate of the Company.
In case the Company or any Subsidiary Guarantor, pursuant to
Article IV, shall be consolidated or merged with or into any other Person or
shall convey, transfer, lease or otherwise dispose of its properties and assets
substantially as an entirety to any Person, and the successor Person resulting
from such consolidation, or surviving such merger, or into which the Company or
any Subsidiary Guarantor shall have been merged, or the Person which shall have
received a
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conveyance, transfer, lease or other disposition as aforesaid, shall have
executed an indenture supplemental hereto with the Trustee pursuant to Article
IV, any of the Securities authenticated or delivered prior to such
consolidation, merger, conveyance, transfer, lease or other disposition may,
from time to time, at the request of the successor Person, be exchanged for
other Securities executed in the name of the successor Person with such changes
in phraseology and form as may be appropriate, but otherwise in substance of
like tenor as the Securities surrendered for such exchange and of like principal
amount; and the Trustee, upon Company Order of the successor Person, shall
authenticate and deliver Securities as specified in such order for the purpose
of such exchange. If Securities shall at any time be authenticated and delivered
in any new name of a successor Person pursuant to this Section 2.2 in exchange
or substitution for or upon registration of transfer of any Securities, such
successor Person, at the option of the Holders but without expense to them,
shall provide for the exchange of all Securities at the time outstanding for
Securities authenticated and delivered in such new name.
SECTION 2.3. Registrar and Paying Agent. The Company shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Company shall
cause each of the Registrar and the Paying Agent to maintain an office or agency
in the Borough of Manhattan, The City of New York. The Registrar shall keep a
register of the Securities and of their transfer and exchange (the "Note
Register"). The Company may have one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional paying
agent.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of each such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.7. The
Company or any of its Subsidiaries may act as Paying Agent, Registrar,
co-registrar or transfer agent.
The Company initially appoints DTC to act as depository with
respect to the Global Securities. The Trustee is authorized to enter into a
letter of representations with DTC in the form provided to the Trustee by the
Company and to act in accordance with such letter.
The Company initially appoints the Trustee as Registrar and
Paying Agent for the Securities.
SECTION 2.4. Paying Agent To Hold Money in Trust. By at least
10:00 a.m. (New York City time) on the date on which any principal of or
interest on any Security is due and payable, the Company shall deposit with the
Paying Agent a sum sufficient to pay such principal or interest when due. The
Company shall require each Paying Agent (other than the Trustee) to agree in
writing that such Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money held by such Paying Agent for the
payment of principal of or interest on the Securities and shall notify the
Trustee in writing of any default by the Company or any Subsidiary Guarantor in
making any such payment. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate the money held by it as Paying Agent and
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hold it as a separate trust fund. The Company at any time may require a Paying
Agent (other than the Trustee) to pay all money held by it to the Trustee and to
account for any funds disbursed by such Paying Agent. Upon complying with this
Section, the Paying Agent (if other than the Company or a Subsidiary) shall have
no further liability for the money delivered to the Trustee. Upon any
bankruptcy, reorganization or similar proceeding with respect to the Company,
the Trustee shall serve as Paying Agent for the Securities.
SECTION 2.5. Securityholder 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 Securityholders and shall otherwise comply
with TIA Section 312(a). If the Trustee is not the Registrar, or to the extent
otherwise required under the TIA, the Company, on its own behalf and on behalf
of each of the Subsidiary Guarantors, shall furnish to the Trustee, in writing
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
Securityholders and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.6. Transfer and Exchange. (a) The following
provisions shall apply with respect to any proposed transfer of a Rule 144A Note
or an Institutional Accredited Investor Global Note prior to the date which is
two years after the later of the date of its original issue and the last date on
which the Company or any affiliate of the Company was the owner of such
Securities (or any predecessor thereto) (the "Resale Restriction Termination
Date"):
(i) a transfer of a Rule 144A Note or an Institutional
Accredited Investor Global Note or a beneficial interest therein to a
QIB shall be made upon the representation of the transferee in the form
as set forth on the reverse of the Security that it is purchasing for
its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A, and is aware that
the sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A;
(ii) a transfer of a Rule 144A Note or an Institutional
Accredited Investor Global Note or a beneficial interest therein to an
IAI shall be made upon receipt by the Trustee or its agent of a
certificate substantially in the form set forth in Section 2.7 from the
proposed transferee and, if requested by the Company or the Trustee,
the delivery of an opinion of counsel, certification and/or other
information satisfactory to each of them; and
(iii) a transfer of a Rule 144A Note or an Institutional
Accredited Investor Global Note or a beneficial interest therein to a
Non-U.S. Person shall be made upon receipt by the Trustee or its agent
of a certificate substantially in the form set forth in Section 2.8
from the proposed transferee and, if requested by the Company or the
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Trustee, the delivery of an opinion of counsel, certification and/or
other information satisfactory to each of them.
(b) The following provisions shall apply with respect to any
proposed transfer of a Regulation S Note prior to the expiration of the
Restricted Period:
(i) a transfer of a Regulation S Note or a beneficial interest
therein to a QIB shall be made upon the representation of the
transferee, in the form of assignment on the reverse of the
certificate, that it is purchasing the Security for its own account or
an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A, and is aware that
the sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A;
(ii) a transfer of a Regulation S Note or a beneficial
interest therein to an IAI shall be made upon receipt by the Trustee or
its agent of a certificate substantially in the form set forth in
Section 2.7 from the proposed transferee and, if requested by the
Company or the Trustee, the delivery of an opinion of counsel,
certification and/or other information satisfactory to each of them;
and
(iii) a transfer of a Regulation S Note or a beneficial
interest therein to a Non-U.S. Person shall be made upon receipt by the
Trustee or its agent of a certificate substantially in the form set
forth in Section 2.8 hereof from the proposed transferee and, if
requested by the Company or the Trustee, receipt by the Trustee or its
agent of an opinion of counsel, certification and/or other information
satisfactory to each of them.
After the expiration of the Restricted Period, interests in
the Regulation S Note may be transferred without requiring certification set
forth in Section 2.7, Section 2.8 or any additional certification.
(c) Restricted Securities Legend. Upon the transfer, exchange
or replacement of Securities not bearing a Restricted Securities Legend, the
Registrar shall deliver Securities that do not bear a Restricted Securities
Legend. Upon the transfer, exchange or replacement of Securities bearing a
Restricted Securities Legend, the Registrar shall deliver only Securities that
bear a Restricted Securities Legend unless there is delivered to the Registrar
an Opinion of Counsel to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act.
(d) The Registrar shall retain copies of all letters, notices
and other written communications received pursuant to Section 2.1 or this
Section 2.6. The Company shall have the right to inspect and make copies of all
such letters, notices or other written communications at any reasonable time
upon the giving of reasonable prior written notice to the Registrar.
(e) Obligations with Respect to Transfers and Exchanges of
Securities.
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(i) To permit registrations of transfers and exchanges, the
Company shall, subject to the other terms and conditions of this
Article II, execute and the Trustee shall authenticate Definitive
Securities and Global Securities at the Registrar's or co-registrar's
request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require from
a Holder payment of a sum sufficient to cover any transfer tax,
assessments, or similar governmental charge payable in connection
therewith (other than any such transfer taxes, assessments or similar
governmental charges payable upon exchange or transfer pursuant to
Section 3.6 or Section 9.5).
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of any Security for a period
beginning (1) 15 days before the mailing of a notice of an offer to
repurchase or redeem Securities and ending at the close of business on
the day of such mailing or (2) 15 days before an interest payment date
and ending on such interest payment date.
(iv) Prior to the due presentation for registration of
transfer of any Security, the Company, the Trustee, the Paying Agent,
the Registrar or any co-registrar may deem and treat the person in
whose name a Security is registered as the absolute owner of such
Security for the purpose of receiving payment of principal of and
interest on such Security and for all other purposes whatsoever,
whether or not such Security is overdue, and none of the Company, the
Trustee, the Paying Agent, the Registrar or any co-registrar shall be
affected by notice to the contrary.
(v) Any Definitive Security delivered in exchange for an
interest in a Global Security pursuant to Section 2.1(d) shall, except
as otherwise provided by Section 2.6(c), bear the applicable legend
regarding transfer restrictions applicable to the Definitive Security
set forth in Section 2.1(c).
(vi) All Securities issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt
and shall be entitled to the same benefits under this Indenture as the
Securities surrendered upon such transfer or exchange.
(f) No Obligation of the Trustee. (i) The Trustee shall have
no responsibility or obligation to any beneficial owner of a Global Security, a
member of, or a participant in, DTC or other Person with respect to the accuracy
of the records of DTC or its nominee or of any participant or member thereof,
with respect to any ownership interest in the Securities or with respect to the
delivery to any participant, member, beneficial owner or other Person (other
than DTC) of any notice (including any notice of redemption) or the payment of
any amount or delivery of any Securities (or other security or property) under
or with respect to such Securities. All notices and communications to be given
to the Holders and all payments to be made to Holders in respect of the
Securities shall be given or made only to or upon the order of the registered
Holders (which shall be DTC or its nominee in the case of a Global Security).
The rights of beneficial owners in any Global Security shall be exercised only
through DTC subject to the applicable rules and procedures of DTC. The Trustee
may rely and shall be fully protected
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in relying upon information furnished by DTC with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among DTC
participants, members or beneficial owners in any Global Security) other than to
require delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
SECTION 2.7. Form of Certificate to be Delivered in Connection
with Transfers to Institutional Accredited Investors.
[Date]
Manor Care, Inc.
c/o National City Bank
4100 W. 150th Street, 3rd Floor
Cleveland, OH 44135-1385
Attention: Corporate Trust Operations
Locator 01-5352
Dear Sirs:
This certificate is delivered to request a transfer of
$_________ principal amount of the 8% Senior Notes due 2008 (the "Notes") of
Manor Care, Inc. (the "Company").
Upon transfer, the Notes would be registered in the name of
the new beneficial owner as follows:
Name: ___________________________________
Address: ________________________________
Taxpayer ID Number: _____________________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended
(the "Securities Act")) purchasing for our own account or for the account of
such an institutional "accredited investor" at least $250,000 principal amount
of the Notes, and we are acquiring the Notes not with a view to, or for offer or
sale in connection with, any distribution in violation of the Securities Act. We
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risk of our investment in the Notes and we
invest in or purchase securities similar
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to the Notes in the normal course of our business. We and any accounts for which
we are acting are each able to bear the economic risk of our or its investment.
2. We understand that the Securities have not been registered
under the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on behalf of
any investor account for which we are purchasing Securities to offer, sell or
otherwise transfer such Securities prior to the date which is two years after
the later of the date of original issue and the last date on which the Company
or any affiliate of the Company was the owner of such Securities (or any
predecessor thereto) (the "Resale Restriction Termination Date") only (a) to the
Company, (b) pursuant to a registration statement which has been declared
effective under the Securities Act, (c) in a transaction complying with the
requirements of Rule 144A under the Securities Act ("Rule 144A"), to a person we
reasonably believe is a qualified institutional buyer under Rule 144A (a "QIB")
that purchases for its own account or for the account of a QIB and to whom
notice is given that the transfer is being made in reliance on Rule 144A, (d)
pursuant to offers and sales that occur outside the United States within the
meaning of Regulation S under the Securities Act, (e) to an institutional
"accredited investor" (within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act) that is purchasing for its own account or for the
account of such an institutional "accredited investor," in each case in a
minimum principal amount of Securities of $250,000 or (f) pursuant to any other
available exemption from the registration requirements of the Securities Act,
subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and in compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Securities is proposed to be made pursuant to clause (e)
above prior to the Resale Restriction Termination Date, the transferor shall
deliver a letter from the transferee substantially in the form of this letter to
the Company and the Trustee, which shall provide, among other things, that the
transferee is an institutional "accredited investor" (within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act) that is acquiring such
Securities for investment purposes and not for distribution in violation of the
Securities Act. Each purchaser acknowledges that the Company and the Trustee
reserve the right prior to any offer, sale or other transfer prior to the Resale
Termination Date of the Securities pursuant to clauses (d), (e) or (f) above to
require the delivery of an opinion of counsel, certifications and/or other
information satisfactory to the Company and the Trustee.
TRANSFEREE:________________________
BY:________________________________
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SECTION 2.8. Form of Certificate to be Delivered in Connection
with Transfers Pursuant to Regulation S.
[Date]
Manor Care, Inc.
c/o National City Bank
4100 W. 150th Street, 3rd Floor
Cleveland, OH 44135-1385
Attention: Corporate Trust Operations
Locator 01-5352
Re: Manor Care, Inc.
8% Senior Notes due 2008 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $200,000,000 aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the United States
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(a) (1) the offer of the Securities was not made to a person
in the United States;
(2) either (i) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States or (ii) the transaction was executed in, on or through
the facilities of a designated off-shore securities market and neither
we nor any person acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;
(b) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2)
of Regulation S, as applicable; and
(c) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
In addition, if the sale is made during a distribution
compliance period and the provisions of Rule 903(b)(2) or Rule 904(b)(1) of
Regulation S are applicable thereto, we confirm that such sale has been made in
accordance with the applicable provisions of Rule 903(b)(2) or Rule 904(b)(1),
as the case may be.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
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Very truly yours,
[Name of Transferor]
By:____________________________
_______________________________
Authorized Signature
SECTION 2.9. Mutilated, Destroyed, Lost or Stolen Securities.
If a mutilated Security is surrendered to the Registrar or if the Holder of a
Security claims that the Security has been lost, destroyed or wrongfully taken,
the Company shall issue and the Trustee shall authenticate a replacement
Security if the requirements of Section 8-405 of the Uniform Commercial Code are
met and the Holder satisfies any other reasonable requirements of the Trustee.
If required by the Trustee or the Company, such Holder shall furnish an
indemnity bond sufficient in the judgment of the Company and the Trustee to
protect the Company, the Trustee, the Paying Agent, the Registrar and any
co-registrar from any loss which any of them may suffer if a Security is
replaced, and, in the absence of notice to the Company, any Subsidiary Guarantor
or the Trustee that such Security has been acquired by a bona fide purchaser,
the Company shall execute and upon Company Order the Trustee shall authenticate
and make available for delivery, in exchange for any such mutilated Security or
in lieu of any such destroyed, lost or stolen Security, a new Security of like
tenor and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
Every new Security issued pursuant to this Section in lieu of
any mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, any Subsidiary Guarantor (if
applicable) and any other obligor upon the Securities, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.10. Outstanding Securities. Securities outstanding
at any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it
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for cancellation and those described in this Section as not outstanding. A
Security ceases to be outstanding in the event the Company or a Subsidiary of
the Company holds the Security, provided, however, that (i) for purposes of
determining which are outstanding for consent or voting purposes hereunder,
Securities shall cease to be outstanding in the event the Company or an
Affiliate of the Company holds the Security and (ii) in determining whether the
Trustee shall be protected in making a determination whether the Holders of the
requisite principal amount of outstanding Securities are present at a meeting of
Holders of Securities for quorum purposes or have consented to or voted in favor
of any request, demand, authorization, direction, notice, consent, waiver,
amendment or modification hereunder, or relying upon any such quorum, consent or
vote, only Securities which a Trust Officer of the Trustee actually knows to be
held by the Company or an Affiliate of the Company shall not be considered
outstanding.
If a Security is replaced pursuant to Section 2.9, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and interest payable on that date with respect
to the Securities (or portions thereof) to be redeemed or maturing, as the case
may be, and the Paying Agent is not prohibited from paying such money to the
Securityholders on that date pursuant to the terms of this Indenture, then on
and after that date such Securities (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.11. Temporary Securities. Until Definitive
Securities are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be substantially
in the form of Definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate Definitive Securities.
After the preparation of Definitive Securities, the temporary Securities shall
be exchangeable for Definitive Securities upon surrender of the temporary
Securities at any office or agency maintained by the Company for that purpose
and such exchange shall be without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute,
and the Trustee shall authenticate and make available for delivery in exchange
therefor, one or more Definitive Securities representing an equal principal
amount of Securities. Until so exchanged, the Holder of temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as a
holder of Definitive Securities.
SECTION 2.12. Cancellation. The Company at any time may
deliver Securities to the Trustee for cancellation. The Registrar and the Paying
Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee and no one else shall
cancel and return to the Company all Securities surrendered for registration of
transfer, exchange, payment or cancellation. The Company may not issue new
Securities to replace Securities it has paid or delivered to the Trustee for
cancellation for any reason other than in connection with a transfer or
exchange.
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SECTION 2.13. Payment of Interest; Defaulted Interest.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any interest payment date shall be paid to the Person in whose
name such Security (or one or more predecessor Securities) is registered at the
close of business on the regular record date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section 2.3.
Any interest on any Security which is payable, but is not paid
when the same becomes due and payable and such nonpayment continues for a period
of 30 days shall forthwith cease to be payable to the Holder on the regular
record date by virtue of having been such Holder, and such defaulted interest
and (to the extent lawful) interest on such defaulted interest at the rate borne
by the Securities (such defaulted interest and interest thereon herein
collectively called "Defaulted Interest") shall be paid by the Company, at its
election in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective predecessor Securities) are registered at the close of
business on a Special Record Date (as defined below) for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date
(not less than 30 days after such notice) of the proposed payment (the
"Special Interest Payment Date"), and at the same time the Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a record date (the "Special Record Date") for the
payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the Special Interest Payment Date
and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date, and in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date and Special Interest
Payment Date therefor to be given in the manner provided for in Section
11.2, not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special
Record Date and Special Interest Payment Date therefor having been so
given, such Defaulted Interest shall be paid on the Special Interest
Payment Date to the Persons in whose names the Securities (or their
respective predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
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Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of, transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 2.14. Computation of Interest. Interest on the
Securities shall be computed on the basis of a 360-day year of twelve 30-day
months.
SECTION 2.15. CUSIP and ISIN Numbers. The Company in issuing
the Securities may use "CUSIP" and "ISIN" numbers (if then generally in use)
and, if so, the Trustee shall use "CUSIP" and "ISIN" numbers in notices of
redemption as a convenience to Holders; provided, however, that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such CUSIP or ISIN numbers. The Company shall
promptly notify the Trustee of any change in the CUSIP and ISIN numbers.
ARTICLE III
Covenants
SECTION 3.1. Payment of Securities. The Company shall promptly
pay the principal of and interest on the Securities on the dates and in the
manner provided in the Securities and in this Indenture. Principal and interest
shall be considered paid on the date due if on such date the Trustee or the
Paying Agent holds in accordance with this Indenture money sufficient to pay all
principal and interest then due and the Trustee or the Paying Agent, as the case
may be, is not prohibited from paying such money to the Securityholders on that
date.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law, deduct
or withhold income or other similar taxes imposed by the United States of
America from principal or interest payments hereunder.
SECTION 3.2. [Reserved]
SECTION 3.3. Limitation on Liens. (a) Except as provided in
Section 3.3(b), the Company shall not, and shall not permit any Subsidiary to,
create, Incur or assume any Lien on any property or assets of the Company or any
Subsidiary in order to secure any Debt of the Company or any Subsidiary, without
effectively providing that the Securities (together with, if the Company shall
so determine, any other Debt which is not subordinated to the Securities) shall
be secured equally and ratably with (or prior to) such Debt, so long as such
Debt shall be so secured.
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(b) The limitation set forth in Section 3.3(a) shall not apply
to (i) any Lien if, after giving effect thereto, the aggregate amount of all
Debt of the Company and its Subsidiaries secured by Liens existing at the time
(excluding any Debt secured by Liens permitted to be Incurred by clauses (ii)
through (xvii) below) would not exceed the Applicable Percentage of the
Consolidated Net Assets of the Company; (ii) any Lien if an amount of cash equal
to the net proceeds of the Debt secured by such Lien is used within 12 months of
such creation, Incurrence or assumption to (x) acquire additional property or
assets (or to make investments in Persons who, after giving effect to such
investments, will become Subsidiaries) or (y) make an offer to purchase the
Securities at 100% of the principal amount thereof plus accrued interest, if
any, to the date of purchase; (iii) Existing Liens and Liens created, Incurred
or assumed after the Issue Date on property or assets of the Company or of any
Subsidiary that were subject to an Existing Lien; (iv) Liens on property or
assets of any Person existing at the time such Person becomes a Subsidiary or
merges into or consolidates with the Company or a Subsidiary; (v) Liens on
property or assets existing at the time of acquisition thereof by the Company or
any Subsidiary; (vi) Liens to secure the financing of the acquisition,
construction, alteration or improvement of property or assets of the Company or
any Subsidiary (or of any Person who, after giving effect to such financing,
will become Subsidiaries), provided that such Liens are created not later than
18 months after such acquisition or, in the case of construction, alteration or
improvement of property or assets, the later of the completion thereof or
commencement of commercial operation of such property or assets; (vii) Liens in
favor of the Company or any Subsidiary; (viii) Liens in favor of or required by
federal, state or local governmental authorities, including any department or
instrumentality thereof; (ix) Liens on property or assets of, or on any shares
of stock or other equity interest in, a Foreign Subsidiary to secure Debt of a
Foreign Subsidiary or, a Non-Recourse Subsidiary to secure Non-Recourse Debt;
(x) Liens to secure Debt of joint ventures in which the Company or a Subsidiary
has an interest, to the extent such Liens are on property or assets of or equity
interests in such joint ventures; (xi) Liens on current assets to secure Debt
Incurred for working capital purposes, provided that such Debt matures no later
than 18 months from the date of Incurrence; (xii) Liens on receivables in
connection with Receivables Securitizations; (xiii) Liens of carriers,
warehousemen, mechanics, materialmen and landlords Incurred in the ordinary
course of business for sums not overdue or being contested in good faith by
appropriate proceedings and for which adequate reserves shall have been set
aside on the Company's books; (xiv) Liens Incurred in the ordinary course of
business in connection with workmen's compensation, unemployment insurance or
other forms of governmental insurance or benefits, or to secure performance of
bids, tenders, trade contracts (other than for Debt), statutory obligations,
leases and contracts (other than for Debt) entered into in the ordinary course
of business or to secure obligations on surety or appeal bonds or performance
bonds; (xv) easements, restrictions and other minor defects of title which are
not, in the aggregate, material and which do not, individually or in the
aggregate, have a materially adverse effect; (xvi) leases or subleases granted
to others not interfering in any material respect with the business of the
Company or any Subsidiary, and any interest or title of a lessor under any lease
permitted under the Indenture; and (xvii) any extension, renewal or replacement,
as a whole or in part, of any Lien referred to in the foregoing clauses (i) to
(xvi), provided, however, that (a) such extension, renewal or replacement Lien
shall be limited to all or a part of the same property or assets that secured
the Lien being extended, renewed or replaced and (b) the principal amount of
Debt (or, if such Debt provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration thereof, such
lesser amount) secured by such extended,
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renewed or replaced Lien does not exceed the principal amount of Debt (or, if
such Debt provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration thereof, such lesser amount)
which was secured by the Lien being extended, renewed or replaced.
SECTION 3.4. Limitation on Sale and Lease-Back Transactions.
The Company will not, and will not permit any Subsidiary to, enter into any Sale
and Lease-Back Transaction unless (a) the Company or such Subsidiary would, at
the time of entering into a Sale and Lease-Back Transaction, be entitled to
Incur Debt secured by a Lien on the property or asset to be leased in an amount
at least equal to the Attributable Debt in respect of such transaction without
equally and ratably securing the Securities pursuant to Section 3.3, or (b) the
proceeds of the sale of the property or assets to be leased are at least equal
to their fair value (the amount of such proceeds, if other than in cash, to be
determined by the chief financial or accounting officer of the Company whose
determination shall be conclusive) and an amount in cash equal to the net
proceeds is applied, within 12 months of the effective date of such transaction
to (i) acquire additional property or assets (or to make investments in entities
which, after giving effect to such investment, will become Subsidiaries), (ii)
to retire Debt which is pari passu with the Securities (provided that in
connection with any such retirement, any related loan commitment or the like
shall be reduced in an amount equal to the principal amount so retired) or (iii)
offer to purchase the Securities at 100% of the principal amount thereof, plus
accrued interest, if any, to the date of purchase.
SECTION 3.5 . Limitation on Affiliate Transactions. Neither
the Company nor any of its Subsidiaries shall sell, lease, transfer or otherwise
dispose of any of its properties or assets to or purchase any property or assets
from, or enter into any contract, agreement, understanding, loan, advance or
guaranty with, or for the benefit of, an Affiliate of the Company (other than a
Subsidiary) (an "Affiliate Transaction") having a value, or for consideration
having a value, in excess of $20,000,000 individually or in the aggregate unless
the Board of Directors of the Company shall determine that the terms of such
Affiliate Transaction are no less favorable to the Company or such Subsidiary
than those which might be obtained at the time of such Affiliate Transaction
from Persons who are not Affiliates. The restrictions of this Section 3.5 are
not applicable to the payment of reasonable and customary fees to directors of
the Company or a Subsidiary who are not employees, the payment of compensation
to officers of the Company or a Subsidiary and any transaction between or among
any of the Company and its Subsidiaries.
SECTION 3.6. Change of Control. Upon the occurrence of a
Change of Control Triggering Event, each Holder will have the right to require
the Company to offer to repurchase all or any part (equal to $1,000 or an
integral multiple thereof) of such Holder's Securities at a purchase price in
cash equal to 101% of the principal amount of the Securities plus accrued and
unpaid interest, if any, to the date of purchase (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date).
Within 30 days following any Change of Control Triggering
Event, the Company shall mail a notice (the "Change of Control Offer") to each
Holder at the address as it appears on the Note Register, with a copy to the
Trustee, stating: (i) that a Change of Control Triggering Event has occurred and
that such Holder has the right to require the Company pursuant to this Section
3.6 to purchase such Holder's Securities at a purchase price in cash equal to
101% of the
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principal amount thereof plus accrued and unpaid interest, if any, to the date
of purchase (subject to the right of Holders of record on a record date to
receive interest on the relevant interest payment date) (the "Change of Control
Payment"); (ii) the repurchase date (which shall be a Business Day that is no
earlier than 30 days nor later than 60 days from the date that the Company mails
or causes to be mailed such notice to the Holders) (the "Change of Control
Payment Date"); (iii) that any Security not tendered shall continue to accrue
interest, if any; (iv) that, unless the Company defaults in the payment of
principal or interest, all Securities accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest, if any, after the Change
of Control Payment Date; (v) that Holders electing to have any Securities
purchased pursuant to a Change of Control Offer shall be required to surrender
the Securities to the Paying Agent at the address specified in the notice prior
to the close of business on the third Business Day preceding the date of
purchase for the Change of Control Payment Date; (vi) that Holders shall be
entitled to withdraw their election if the Paying Agent receives, not later than
the close of business on the second Business Day preceding the Change of Control
Payment Date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of Securities delivered for
purchase, and a statement that such Holder is withdrawing its election to have
the Securities purchased; (vii) that Holders whose Securities are being
purchased only in part shall be issued new Securities equal in principal amount
to the unpurchased portion of the Securities surrendered, which unpurchased
portion must be equal to $1,000 in principal amount or an integral multiple
thereof; and (viii) the procedures determined by the Company, consistent with
this Section 3.6, that a Holder must follow in order to have its Securities
repurchased.
Prior to mailing a Change of Control Offer, and as a condition
to such mailing (i) the requisite holders of each issue of Debt issued under an
indenture or other agreement that may be violated by such payment shall have
consented to such Change of Control Offer being made and waived the event of
default, if any, caused by the Change of Control Triggering Event or (ii) the
Company will repay all outstanding Debt issued under an indenture or other
agreement that may be violated by a payment to the holders of Securities under a
Change of Control Offer or the Company must offer to repay all such Debt, and
make payment to the holders of such Debt that accept such offer and obtain
waivers of any event of default from the remaining holders of such Debt. The
Company will effect such repayment or obtain such consent and waiver within 30
days following any Change of Control Triggering Event, it being a Default of
this Section 3.6 if the Company fails to so comply.
On the Change of Control Payment Date, the Company shall, to
the extent lawful, (i) accept for payment all Securities or portions thereof
(equal to $1,000 or an in integral multiple 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 the Securities or
portions thereof so tendered and (iii) deliver or cause to be delivered to the
Trustee the Securities so accepted together with an Officers' Certificate
stating the aggregate principal amount of such Securities or portions thereof
being purchased by the Company. The Paying Agent shall promptly mail to each
Holder of the Securities so tendered the Change of Control Payment for such
Securities, and the Trustee shall promptly authenticate and mail (or cause to be
transferred by book-entry) to each Holder a new Security equal in principal
amount to any unpurchased portion of the Securities surrendered, if any;
provided that each such new Security shall be in a principal amount of $1,000 or
an integral multiple thereof. The Company shall publicly
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announce the results of the Change of Control Offer on or as soon as practicable
after the Change of Control Payment Date.
If the Change of Control Payment Date is on or after an
interest record date and on or before the related interest payment date, any
accrued and unpaid interest, if any, will 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 will be payable to holders who tender pursuant to the Change
of Control Offer.
The Company will not be required to make a Change of Control
Offer upon a Change of Control Triggering Event 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 3.6 applicable to a Change of
Control Offer made by the Company and purchases all Securities validly tendered
and not withdrawn under such Change of Control Offer.
The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Section 3.6. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Indenture, the Company will comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations described in this Indenture by virtue thereof.
SECTION 3.7. Financial Statements. So long as the Company is
not subject to Section 13 or 15(d) of the Exchange Act, it shall file with the
Trustee and mail to each Holder at such Holder's registered address the
following:
(a) within 120 days after the end of each fiscal year, its
consolidated balance sheets as of the close of such fiscal year and the
preceding fiscal year and related consolidated statements of income and
shareholders' equity and cash flows, showing the financial condition of the
Company and its consolidated Subsidiaries as of the close of such fiscal year
and the two preceding fiscal years, all audited by an independent public
accounting firm of recognized national standing and accompanied by an opinion of
such accounting firm to the effect that such financial statements fairly present
the financial condition and results of operations of the Company and its
consolidated Subsidiaries in accordance with GAAP consistently applied, except
as disclosed in the notes thereto. Such balance sheets and related statements
shall be substantially comparable in detail to the audited balance sheets and
related statements included in the Company's Offering Memorandum dated March 1,
2001 (the "Offering Memorandum"), relating to the Original Securities and shall
be accompanied by a "Management's Discussion and Analysis of Financial Condition
and Results of Operations" ("MD&A") substantially comparable in detail to the
MD&A included in the Offering Memorandum with respect to the Company's fiscal
years ended December 31, 1998, 1999 and 2000; and
(b) within 60 days after the end of each of the first three
fiscal quarters of each fiscal year, its consolidated balance sheets and related
consolidated statements of income and cash flows, stating the financial
condition of the Company and its consolidated Subsidiaries as of the close of
such fiscal quarter and as of the end of the preceding fiscal year (and the
corresponding quarter in the preceding fiscal year) and the then-elapsed portion
of such fiscal
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year (and the corresponding period in the preceding fiscal year). Such balance
sheets and related statements shall be prepared in accordance with GAAP
consistently applied except as disclosed in the notes thereto and shall be
accompanied by an MD&A substantially comparable in detail to the MD&A included
in the Offering Memorandum.
(c) The Company shall deliver to the Holder, upon request of
such Holder, as many copies of the foregoing as may be reasonably requested by
such Holder.
SECTION 3.8. Future Subsidiary Guarantors; Release of
Guarantees. After the Issue Date, the Company will cause (i) each Subsidiary
(other than a Subsidiary that does not guarantee obligations under the 2006
Notes) created or acquired by the Company or one or more of its Subsidiaries to
execute and deliver to the Trustee a Subsidiary Guarantee pursuant to which such
Subsidiary Guarantor will unconditionally Guarantee, on a joint and several
basis, the full and prompt payment of the principal of, premium, if any, and
interest on the Securities on a senior basis; provided that (A) a Subsidiary
Guarantee from any Subsidiary (other than MCA so long as all or any portion of
the 2006 Notes shall remain outstanding) shall be released upon the release of
such Subsidiary from any liability under (x) the indenture relating to the 2006
Notes or any related guarantee or similar obligation and (y) any Senior Credit
Agreement and any guarantee or similar obligation in respect thereof and (B) MCA
shall be released from its obligations under its Subsidiary Guarantee upon the
repayment in full of the 2006 Notes (so long as no default or event of default
shall have occurred as a consequence thereof) and the release of MCA from any
obligation it may have in respect of the Senior Credit Agreement and any
guarantee or similar obligation in respect thereof; provided that such release
of a Subsidiary Guarantor shall not occur in the event such Subsidiary Guarantor
is required to deliver a Guarantee in accordance with the paragraph below and
then such Subsidiary Guarantee shall only be released in accordance with the
paragraph below. Upon notice by the Company to the Trustee of the occurrence of
the events described in either of the two preceding sentences, the Trustee shall
execute any documents reasonably required in order to evidence the release of
any Subsidiary Guarantor from its obligations under the Subsidiary Guarantee.
The Company will not permit any Subsidiary to Guarantee the
payment of any Debt of the Company unless (i) such Subsidiary simultaneously
executes and delivers a supplemental indenture to the Indenture providing for a
Guarantee of payment of the Securities by such Subsidiary; (ii) such Subsidiary
waives and will not in any manner whatsoever claim or take the benefit or
advantage of, any rights of reimbursement, indemnity or subrogation or any other
rights against the Company or any Subsidiary as a result of any payment by such
Subsidiary under its Guarantee; and (iii) such Subsidiary shall deliver to the
Trustee an Opinion of Counsel to the effect that (A) the supplemental indenture
has been duly executed and authorized and (B) the supplemental indenture
constitutes a valid, binding and enforceable obligation of such Subsidiary,
except insofar as enforcement thereof may be limited by bankruptcy, insolvency
or similar laws (including, without limitation, all laws relating to fraudulent
transfers) and except insofar as enforcement thereof is subject to general
principles of equity; provided that such Subsidiary Guarantee shall be released
upon the release of such Subsidiary from liability in respect of Guarantees of
Debt of the Company; and, provided, further, that any release of a Subsidiary
Guarantee under the preceding proviso will not impair the rights of the Holders
to receive Subsidiary Guarantees of the Securities in accordance with this
paragraph in the event future Debt of the Company is Guaranteed by such
Subsidiary.
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SECTION 3.9. Maintenance of Office or Agency. The Company will
maintain in The City of New York, an office or agency where the Securities may
be presented or surrendered for payment, where, if applicable, the Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The agency of National City Bank (the "Agent")
currently located at National City Bank c/o Mellon Securities Trust Company, 120
Broadway, 13th Floor, New York, New York, 10271 in the City of New York shall be
such office or agency of the Company, unless the Company shall designate and
maintain some other office or agency for one or more of such purposes. The
Company will give prompt written notice to the Trustee of any change in the
location of any 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 Agent of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of The City of New York) where the
Securities may be presented or surrendered for any or all such purposes and may
from time to time rescind any such designation; 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 City of New York for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and any change in the location of any such other
office or agency.
SECTION 3.10. Corporate Existence. Subject to Article IV and
Section 10.2, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and the
corporate, partnership or other existence of each Significant Subsidiary or the
respective corporate, partnership or other existences of each member of any
group of Subsidiaries that taken together would constitute a Significant
Subsidiary of the Company and the rights (charter and statutory) licenses and
franchises of the Company and each Significant Subsidiary or each member of any
group of Subsidiaries that taken together would constitute a Significant
Subsidiary of the Company; provided, however, that the Company shall not be
required to preserve any such right, license or franchise or the corporate,
partnership or other existence of any Significant Subsidiary or the respective
corporate, partnership or other existences of each member of any group of
Subsidiaries that taken together would constitute a Significant Subsidiary of
the Company, if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and each of its Subsidiaries, taken as a whole, and that the loss
thereof is not, and will not be, disadvantageous in any material respect to the
Holders; provided, further, that the Company shall not be required to preserve
any such right, license or franchise or the corporate, partnership or other
existence of a Subsidiary that is neither a Significant Subsidiary nor a member
of any group of Subsidiaries that taken together would constitute a Significant
Subsidiary of the Company; and, provided, further, the Company may consolidate
with or merge with or into, or convey, transfer or lease all or substantially
all its assets to, a Person in accordance with Section 4.1 and 10.2.
SECTION 3.11. Payment of Taxes and Other Claims. The Company
will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (i) all
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material taxes, assessments and governmental charges levied or imposed upon the
Company or any Subsidiary or upon the income, profits or property of the Company
or any Subsidiary and (ii) all lawful claims for labor, materials and supplies,
which, if unpaid, might by law become a material liability or lien upon the
property of the Company or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which
appropriate reserves, if necessary (in the good faith judgment of management of
the Company), are being maintained in accordance with GAAP or where the failure
to effect such payment will not be disadvantageous to the Holders.
SECTION 3.12. Payments for Consent. Neither the Company nor
any of its Subsidiaries will, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fees or otherwise, to any Holder
of any Securities for or as an inducement to any consent, waiver or amendment of
any of the terms or provisions of this Indenture or the Securities unless such
consideration is offered to be paid or is paid to all Holders of the Securities
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 3.13. Compliance Certificate. The Company shall
deliver to the Trustee within 120 days after the end of each Fiscal Year of the
Company an Officers' Certificate stating that in the course of the performance
by the signers of their duties as Officers of the Company they would normally
have knowledge of any Default or Event of Default and whether or not the signers
know of any Default or Event of Default that occurred during such period. If
they do, the certificate shall describe the Default or Event of Default, its
status and what action the Company is taking or proposes to take with respect
thereto. The Company also shall comply with TIA Section 314(a)(4).
SECTION 3.14. Further Instruments and Acts. Upon request of
the Trustee, the Company will execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 3.15. Statement by Officers as to Default. The Company
shall deliver to the Trustee, as soon as possible and in any event within 30
days after the Company becomes aware of the occurrence of any Event of Default
or an event which, with notice or the lapse of time or both, would constitute an
Event of Default, an Officers' Certificate setting forth the details of such
Event of Default or default and the action which the Company proposes to take
with respect thereto.
ARTICLE IV
Successor Company
SECTION 4.1. Consolidation, Merger and Sale of Assets. The
Company shall not consolidate with or merge with or into, or convey, transfer or
lease all or substantially all its assets to, any Person, unless:
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(i) the resulting, surviving or transferee Person (the
"Successor Company") if not the Company shall be a corporation,
partnership, trust or limited liability company organized and existing
under the laws of the United States of America, any State thereof or
the District of Columbia and the Successor Company (if not the Company)
shall expressly assume, by supplemental indenture, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Securities, this Indenture and the
Exchange and Registration Rights Agreement;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) each Subsidiary Guarantor (unless it is the other party
to the transactions described above, in which case clause (i) and
Section 10.2 shall apply) shall have by supplemental indenture
confirmed that its Subsidiary Guarantee shall apply for such Person's
obligations in respect of this Indenture and the Securities and its
obligations under the Exchange and Registration Rights Agreement shall
continue to be in effect; and
(iv) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture, if
any, comply with this Indenture.
For purposes of this Section 4.1, the sale, lease, conveyance,
assignment, transfer, or other disposition of all or substantially all of the
properties and assets of one or more Subsidiaries of the Company, which
properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the
Company on a consolidated basis, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.
The Successor Company will succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture,
but, in the case of a lease of all or substantially all its assets, the Company
will not be released from the obligation to pay the principal of and interest on
the Securities.
If, upon any consolidation or merger of the Company with or
into any other corporation, or upon any sale, conveyance or lease of all or
substantially all of its property and assets to any other corporation, any of
the property of the Company or of any Subsidiary would thereupon become subject
to any Lien, the Company will first secure the Securities equally and ratably
with any other obligations of the Company or any Subsidiary then entitled
thereto by a direct Lien on all such property prior to all Liens other than any
theretofore existing thereon.
ARTICLE V
Redemption of Securities
SECTION 5.1. Optional Redemption. The Securities may be
redeemed, as a whole or from time to time in part, subject to the conditions and
at the redemption prices specified in the form of Securities set forth in
Exhibits A and B hereto, which are hereby
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incorporated by reference and made a part of this Indenture, together with
accrued and unpaid interest to the Redemption Date.
SECTION 5.2. Applicability of Article. Redemption of
Securities at the election of the Company or otherwise, as permitted or required
by any provision of this Indenture, shall be made in accordance with such
provision and this Article.
SECTION 5.3. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities pursuant to Section 5.1 shall
be evidenced by a Board Resolution. In case of any redemption at the election of
the Company, the Company shall, upon not later than the earlier of the date that
is 30 days prior to the Redemption Date fixed by the Company or the date on
which notice is given to the Holders (except as provided in Section 5.5 or
unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities to be
redeemed and shall deliver to the Trustee such documentation and records as
shall enable the Trustee to select the Securities to be redeemed pursuant to
Section 5.4.
SECTION 5.4. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities are to be redeemed at any time
pursuant to an optional redemption, the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the outstanding Securities not previously called for redemption,
in compliance with the requirements of the principal securities exchange, if
any, on which such Securities are listed, or, if such Securities are not so
listed, on a pro rata basis, by lot or by such other method as the Trustee shall
deem fair and appropriate (and in such manner as complies with applicable legal
requirements) and which may provide for the selection for redemption of portions
of the principal of the Securities; provided, however, that no such partial
redemption shall reduce the portion of the principal amount of a Security not
redeemed to less than $1,000.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part, to
the portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 5.5. Notice of Redemption. Notice of redemption shall
be given in the manner provided for in Section 11.2 not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed. The Trustee shall give notice of redemption in the Company's name and
at the Company's expense; provided, however, that the Company shall deliver to
the Trustee, at least 45 days prior to the Redemption Date, an Officers'
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the following items.
All notices of redemption shall state:
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(1) the Redemption Date,
(2) the redemption price and the amount of accrued interest to
the Redemption Date payable as provided in Section 5.7, if any,
(3) if less than all outstanding Securities are to be
redeemed, the identification of the particular Securities (or portion
thereof) to be redeemed, as well as the aggregate principal amount of
Securities to be redeemed and the aggregate principal amount of
Securities to be outstanding after such partial redemption,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder will
receive, without charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the redemption price (and
accrued interest, if any, to the Redemption Date payable as provided in
Section 5.7) will become due and payable upon each such Security, or
the portion thereof, to be redeemed, and, unless the Company defaults
in making the redemption payment, that interest on Securities called
for redemption (or the portion thereof) will cease to accrue on and
after said date,
(6) the place or places where such Securities are to be
surrendered for payment of the redemption price and accrued interest,
if any,
(7) the name and address of the Paying Agent,
(8) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price,
(9) the CUSIP number, and that no representation is made as to
the accuracy or correctness of the CUSIP number, if any, listed in such
notice or printed on the Securities, and
(10) the paragraph of the Securities pursuant to which the
Securities are to be redeemed.
SECTION 5.6. Deposit of Redemption Price. Prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 2.4) an amount of money sufficient to pay the
redemption price of, and accrued interest on, all the Securities which are to be
redeemed on that date.
SECTION 5.7. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the redemption price
therein specified (together with accrued interest, if any, to the Redemption
Date), and from and after such date (unless the Company shall default in the
payment of the redemption price and accrued interest) such Securities shall
cease to bear interest. Upon surrender of any such Security for redemption in
accordance with said notice,
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such Security shall be paid by the Company at the redemption price, together
with accrued interest, if any, to the Redemption Date (subject to the rights of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date).
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate borne by
the Securities.
SECTION 5.8. Securities Redeemed in Part. Any Security which
is to be redeemed only in part (pursuant to the provisions of this Article)
shall be surrendered at the office or agency of the Company maintained for such
purpose pursuant to Section 3.9 (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or such Holder's attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and make available for delivery to
the Holder of such Security at the expense of the Company, a new Security or
Securities, of any authorized denomination as requested by such Holder, in an
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered, provided that each such new
Security will be in a principal amount of $1,000 or integral multiple thereof.
ARTICLE VI
Defaults and Remedies
SECTION 6.1. Events of Default. An "Event of Default" occurs
if:
(1) the Company defaults in any payment of interest or
additional interest (as required by the Exchange and Registration
Rights Agreement) on any Security when the same becomes due and
payable, and such default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal or
premium, if any, on any Security when the same becomes due and payable
at its Stated Maturity, upon optional redemption, upon required
repurchase, upon declaration or otherwise;
(3) the Company or any Subsidiary Guarantor fails to comply
with Article IV or Section 10.2 of this Indenture;
(4) the Company fails to comply with any of Section 3.3,
Section 3.4, Section 3.5, Section 3.6, Section 3.7, Section 3.8 and
Section 3.12 (in each case other than a failure to repurchase
Securities when required pursuant to Section 3.6, which failure shall
constitute an Event of Default under Section 6.1(2)) and such failure
continues for 30 days after written notice from the Trustee or the
Holders of at least 25% in principal amount of the outstanding
Securities;
(5) the Company defaults in the performance of or a breach by
the Company of any other covenant or agreement in this Indenture or
under the Securities (other than those referred to in (1), (2), (3) or
(4) above) and such default continues for 60 days after
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written notice from the Trustee or the Holders of at least 25% in
principal amount of the outstanding Securities;
(6) there is a default under any mortgage, indenture or
instrument under which there may be issued or by which there may be
outstanding, or by which there may be secured or evidenced any Debt for
money borrowed by the Company or any of its Subsidiaries (other than
Non-Recourse Debt of a Non-Recourse Subsidiary), whether such Debt now
exists, or is created after the date of this Indenture, which default
(a) is caused by a failure to pay principal of, or interest or premium,
if any, on such Debt prior to the expiration of the grace period
provided in such Debt ("Payment Default") or (b) results in the
acceleration of such Debt prior to its maturity (the "cross
acceleration provision") and, in each case, the principal amount of any
such Debt, together with the principal amount of any other such Debt
under which there has been a Payment Default or the maturity of which
has been so accelerated, aggregates $20.0 million or more or its
foreign currency equivalent at the time and such acceleration shall not
have been rescinded or annulled within 10 days after written notice of
such acceleration has been received by the Company or such Subsidiary;
(7) the Company pursuant to or within the meaning of any
Bankruptcy Law (as defined below):
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a Custodian (as
defined below) of it or for any substantial part of its
property; or
(D) makes a general assignment for the benefit of its
creditors;
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company in an
involuntary case;
(B) appoints a Custodian of the Company for all or
substantially all of the Company's property; or
(C) orders the winding up or liquidation of the
Company; and
in each case the order or decree remains unstayed and in effect for 90
days; or
(9) there has been entered in a court of competent
jurisdiction a final judgment for the payment of $20.0 million or more
rendered against the Company or any Subsidiary, which judgment is not
fully covered by insurance or not discharged or stayed within 90 days
after (A) the date on which the right to appeal thereof has expired if
no
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such appeal has commenced, or (B) the date on which all rights to
appeal have been extinguished.
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Title 11, United States Code,
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
The Company shall deliver to the Trustee, within 30 days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of any Default or Event of Default under clauses (3), (4), (5), (6), (7), (8) or
(9) of this Section 6.1, which such notice shall contain the status thereof and
a description of the action being taken or proposed to be taken by the Company
in respect thereof.
SECTION 6.2. Acceleration. If an Event of Default occurs and
is continuing, the Trustee by notice to the Company, or the Holders of at least
25% in outstanding principal amount of the Securities by notice to the Company
and the Trustee, may, and the Trustee at the request of such Holders shall,
declare the principal of, premium, if any, and accrued and unpaid interest, on
all the Securities to be due and payable. Upon such a declaration, such
principal, premium, if any, and accrued and unpaid interest shall be immediately
due and payable.
SECTION 6.3. Other Remedies. If an Event of Default occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of (or premium, if any) or interest on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.4. Waiver of Past Defaults. The Holders of a
majority in principal amount of the outstanding Securities by notice to the
Trustee may (a) waive, by their consent (including, without limitation consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, Securities), an existing Default or Event of Default and its consequences
except (i) a Default or Event of Default in the payment of the principal of, or
premium, if any, or interest on a Security or (ii) a Default or Event of Default
in respect of a provision that under Section 9.2 cannot be amended without the
consent of each Securityholder affected and (b) rescind any such acceleration
with respect to the Securities and its consequences if (1) rescission would not
conflict with any judgment or decree of a court of competent jurisdiction and
(2) all existing Events of Default, other than the nonpayment of the principal
of, premium, if any, and
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interest on the Securities that have become due solely by such declaration of
acceleration, have been cured or waived. When a Default or Event of Default is
waived, it is deemed cured, but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any consequent right.
SECTION 6.5. Control by Majority. The Holders of a majority in
principal amount of the outstanding Securities may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.1 and Section 7.2, that the Trustee determines is unduly
prejudicial to the rights of other Securityholders or would involve the Trustee
in personal liability; provided, however, that the Trustee may take any other
action deemed proper by the Trustee that is not inconsistent with such
direction. Prior to taking any action hereunder, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
SECTION 6.6. Limitation on Suits. Subject to Section 6.7, a
Securityholder may not pursue any remedy with respect to this Indenture or the
Securities unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least 25% in outstanding principal
amount of the Securities make a request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(5) the Holders of a majority in principal amount of the
Securities do not give the Trustee a direction that, in the opinion of
the Trustee, is inconsistent with such request during such 60-day
period.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
another Securityholder.
SECTION 6.7. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture (including, without
limitation, Section 6.6), the right of any Holder to receive payment of
principal of, premium (if any) or interest on the Securities held by such
Holder, on or after the respective due dates expressed in the Securities, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.8. Collection Suit by Trustee. If an Event of
Default specified in Section 6.1(1) or (2) occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust against
the Company for the whole amount then due and owing
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(together with interest on any unpaid interest to the extent lawful) and the
amounts provided for in Section 7.7.
SECTION 6.9. Trustee May File Proofs of Claim. The Trustee may
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 Securityholders allowed in any judicial
proceedings relative to the Company, its Subsidiaries or its or their respective
creditors or properties and, unless prohibited by law or applicable regulations,
may be entitled and empowered to participate as a member of any official
committee of creditors appointed in such matter and, may vote on behalf of the
Holders in any election of a trustee in bankruptcy or other Person performing
similar functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make 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 it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.7.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article VI, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for principal, premium, if any, and interest, ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Securities for principal and interest,
respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days before
such record date, the Company shall mail to each Securityholder and the Trustee
a notice that states the record date, the payment date and amount to be paid.
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 Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by the Company, a suit by a Holder pursuant to
Section 6.7 or a suit by Holders of more than 10% in outstanding principal
amount of the Securities.
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ARTICLE VII
Trustee
SECTION 7.1. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs; provided that if an Event of
Default occurs and is continuing, the Trustee will be under no obligation to
exercise any of the rights or powers under this Indenture at the request or
direction of any of the Holders unless such Holders have offered to the Trustee
reasonable indemnity or security against loss, liability or expense.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, in the case of any such certificates or
opinions which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine such certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
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(g) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
(i) 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.
(j) 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 reasonable security or indemnity satisfactory to it against the costs,
expenses (including reasonable attorneys' fees and expenses) and liabilities
that might be incurred by it in compliance with such request or direction.
SECTION 7.2. Rights of Trustee. Subject to Section 7.1, (a)
The Trustee may conclusively rely on any document (whether in its original or
facsimile form) reasonably 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. The Trustee shall receive and retain financial
reports and statements of the Company as provided herein, but shall have no duty
to review or analyze such reports or statements to determine compliance under
covenants or other obligations of the Company.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and/or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance
on an Officers' Certificate or Opinion of Counsel.
(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 which it believes to be authorized or within its
rights or powers, provided however, that the Trustee's conduct does not
constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and
the advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Securities shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such
counsel.
SECTION 7.3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying
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Agent, Registrar, co-registrar or co-paying agent may do the same with like
rights. However, the Trustee must comply with Section 7.10 and Section 7.11. In
addition, the Trustee shall be permitted to engage in transactions with the
Company; provided, however, that if the Trustee acquires any conflicting
interest the Trustee must (i) eliminate such conflict within 90 days of
acquiring such conflicting interest, (ii) apply to the Commission for permission
to continue acting as Trustee or (iii) resign.
SECTION 7.4. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, shall not be accountable for the Company's use
of the proceeds from the Securities, shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee and
shall not be responsible for any statement of the Company in this Indenture or
in any document issued in connection with the sale of the Securities or in the
Securities other than the Trustee's certificate of authentication.
SECTION 7.5. Notice of Defaults. If a Default or Event of
Default occurs and is continuing and if a Trust Officer has actual knowledge
thereof, the Trustee shall mail by first class mail to each Securityholder at
the address set forth in the Note Register notice of the Default or Event of
Default within 90 days after it occurs. Except in the case of a Default or Event
of Default in payment of principal of, premium (if any), or interest on any
Security (including payments pursuant to the optional redemption or required
repurchase provisions of such Security, if any), the Trustee may withhold the
notice if and so long as its board of directors, a committee of its board of
directors or a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of Securityholders.
SECTION 7.6. Reports by Trustee to Holders. Within 60 days
after each May 15, beginning with the May 15 following the date of this
Indenture, the Trustee shall mail to each Securityholder a brief report dated as
of such May 15 that complies with TIA Section 313(a). The Trustee also shall
comply with TIA Section 313(b). The Trustee shall also transmit by mail all
reports required by TIA Section 313(c).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange (if any) on
which the Securities are listed. The Company agrees to notify promptly the
Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.
SECTION 7.7. Compensation and Indemnity. The Company shall pay
to the Trustee from time to time reasonable compensation for its acceptance of
this Indenture and services hereunder as the Company and the Trustee shall from
time to time agree in writing. 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 upon request for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, costs of preparing and
reviewing reports, certificates and other documents, costs of preparation and
mailing of notices to Securityholders and reasonable costs of counsel retained
by the Trustee in connection with the delivery of an Opinion of Counsel or
otherwise, in addition to the compensation for its services. Such expenses shall
include the reasonable compensation and expenses, disbursements and advances of
the Trustee's agents, counsel, accountants and experts. The Company shall
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indemnify the Trustee against any and all loss, liability, damages, claims or
expense (including reasonable attorneys' fees and expenses) incurred by it
without negligence or bad faith on its part in connection with the
administration of this trust and the performance of its duties hereunder,
including the costs and expenses of enforcing this Indenture (including this
Section 7.7) and of defending itself against any claims (whether asserted by any
Securityholder, the Company or otherwise). The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee to
so notify the Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim and the Trustee may have separate
counsel and the Company shall pay the fees and expenses of such counsel,
provided that the Company shall not be required to pay such fees and expenses if
it assumes the Trustee's defense, and, in the reasonable judgment of outside
counsel to the Trustee, there is no conflict of interest between the Company and
the Trustee in connection with such defense. The Company need not reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Trustee through the Trustee's own willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest on particular Securities. Such lien shall survive
the satisfaction and discharge of this Indenture. The Trustee's right to receive
payment of any amounts due under this Section 7.7 shall not be subordinate to
any other liability or Debt of the Company.
The Company's payment obligations pursuant to this Section
shall survive the discharge of this Indenture. When the Trustee incurs expenses
after the occurrence of a Default specified in Section 6.1(7) or (8) with
respect to the Company, the expenses are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.8. Replacement of Trustee. The Trustee may resign at
any time by so notifying the Company. The Holders of a majority in principal
amount of the Securities may remove the Trustee by so notifying the Trustee and
may appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed by the Company or by the
Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of the Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly appoint
a successor Trustee.
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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 Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.7.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in principal amount of the Securities may petition, at the
Company's expense, any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
SECTION 7.9. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture, any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; provided that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate Securities in the name
of any predecessor Trustee shall only apply to its successor or successors by
merger, consolidation or conversion.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of TIA Section 310(a). The Trustee shall
have a combined capital and surplus of at least $100 million as set forth in its
most recent published annual report of condition. The Trustee shall comply with
TIA Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against
Company. The Trustee shall comply with 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.
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SECTION 7.12. Trustee's Application for Instruction from the
Company. Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three Business Days after the date any officer of the Company actually receives
such application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.1. Discharge of Liability on Securities; Defeasance.
(a) Subject to Section 8.1(c), when (i)(x) the Company delivers to the Trustee
all outstanding Securities (other than Securities replaced pursuant to Section
2.9) for cancellation or (y) all outstanding Securities not theretofore
delivered for cancellation have become due and payable, whether at maturity or
upon redemption or will become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name and at
the expense of the Company and the Company or any Subsidiary Guarantor
irrevocably deposits or causes to be deposited with the Trustee as trust funds
in trust solely for the benefit of the Holders money in U.S. dollars,
non-callable U.S. 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 such Securities not
theretofore delivered to the Trustee for cancellation for principal, premium, 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 which the Company or any Subsidiary Guarantor is a party or by
which the Company or any Subsidiary Guarantor is bound; (iii) the Company or any
Subsidiary Guarantor has paid or caused to be paid all sums payable by it under
this Indenture and the Securities; and (iv) the Company has delivered
irrevocable instructions to the Trustee under this Indenture to apply the
deposited money toward the payment of such Securities at maturity or the
Redemption Date, as the case may be, then the Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Company
(accompanied by an Officers' Certificate and an Opinion of Counsel stating that
all conditions precedent specified herein relating to the satisfaction and
discharge of this Indenture have been complied with) and at the cost and expense
of the Company.
(b) Subject to Sections 8.1(c) and Section 8.2, the Company at
any time may terminate (i) all its obligations under the Securities and this
Indenture ("legal defeasance option"), and after giving effect to such legal
defeasance, any omission to comply with such obligations shall no longer
constitute a Default or Event of Default or (ii) its obligations under Section
3.3, Section 3.4, Section 3.5, Section 3.6, Section 3.7, Section 3.8 and Section
3.12, and
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the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply with such
covenants shall no longer constitute a Default or an Event of Default under
Section 6.1(4), and the operation of Sections 6.1(5), 6.1(6), and 6.1(9) and the
events specified in such Sections shall no longer constitute an Event of Default
(clause (ii) being referred to as the "covenant defeasance option"), but except
as specified above, the remainder of this Indenture and the Securities shall be
unaffected thereby. The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option. If the
Company exercises its covenant defeasance option, the Company may elect to have
any Subsidiary Guarantees in effect at such time terminate.
If the Company exercises its legal defeasance option, payment
of the Securities may not be accelerated because of an Event of Default, and the
Subsidiary Guarantees in effect at such time shall terminate. If the Company
exercises its covenant defeasance option, payment of the Securities may not be
accelerated because of an Event of Default specified in Section 6.1(4) (as such
Section relates to Section 3.3, Section 3.4, Section 3.5, Section 3.6, Section
3.7, Section 3.8 and Section 3.12), Section 6.1(5), 6.1(6) or 6.1(9).
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding the provisions of Section 8.1(a) and (b),
the Company's obligations in Section 2.2, Section 2.3, Section 2.4, Section 2.5,
Section 2.6, Section 2.9, Section 2.10, Section 2.11, Section 2.12, Section 3.1,
Section 3.9, Section 3.10, Section 3.11, Section 3.13, Section 3.14, Section
3.15, Section 6.7, Section 7.7, Section 7.8 and in this Article 8 shall survive
until the Securities have been paid in full. Thereafter, the Company's
obligations in Sections 7.7, 8.4 and 8.5 shall survive.
SECTION 8.2. Conditions to Defeasance. The Company may
exercise its legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee
for the benefit of the Holders money in U.S. dollars or U.S. Government
Securities or a combination thereof for the payment of principal,
premium, if any, and interest on the Securities to maturity or
redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Securities plus
any deposited money without investment will provide cash at such times
and in such amounts as will be sufficient to pay principal and interest
when due on all the Securities to maturity;
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(3) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, with respect to certain
bankruptcy or insolvency Events of Default, on the 91st day after such
date of deposit;
(4) such legal defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a Default under, this
Indenture or any other 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;
(5) the Company shall have delivered to the Trustee an Opinion
of Counsel (subject to customary assumptions and exclusions) to the
effect that (A) the Securities and (B) assuming no intervening
bankruptcy of the Company between the date of deposit and the 91st day
following the deposit and that no Holder of the Securities is an
insider of the Company, after the 91st 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' right generally;
(6) the deposit does not constitute a default under any other
agreement binding on the Company;
(7) the Company delivers to the Trustee an Opinion of Counsel
(subject to customary assumptions and exclusions) to the effect that
the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment
Company Act of 1940;
(8) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel (subject to
customary assumptions and exclusions) in the United States stating that
(i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of this
Indenture there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Securityholders will not recognize
income, gain or loss for federal income tax purposes as a result of
such 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;
(9) in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel (subject to
customary assumptions and exclusions) in the United States to the
effect that the Securityholders will not recognize income, gain or loss
for federal income tax purposes as a result of such deposit and
covenant defeasance and will be subject to federal income tax on the
same amount, in the same manner and at the same times as would have
been the case if such deposit and covenant defeasance had not occurred;
and
(10) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and
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discharge of the Securities and this Indenture as contemplated by this
Article VIII have been complied with.
SECTION 8.3. Application of Trust Money. The Trustee shall
hold in trust money or U.S. Government Securities deposited with it pursuant to
this Article VIII. It shall apply the deposited money and the money from U.S.
Government Securities through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Securities.
SECTION 8.4. Repayment to Company. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any excess money or
securities held by them upon payment of all the obligations under this
Indenture.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal of or interest on the Securities that remains
unclaimed for two years, and, thereafter, Securityholders entitled to the money
must look to the Company for payment as general creditors.
SECTION 8.5. Indemnity for U.S. Government Securities. The
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Securities or
the principal and interest received on such U.S. Government Securities.
SECTION 8.6. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Securities in accordance with this
Article VIII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the obligations of the Company under
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Securities in accordance with this Article VIII; provided, however, that, if the
Company has made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Securities held by the Trustee or Paying Agent.
The Trustee's rights under this Article VIII shall survive
termination of this Indenture.
ARTICLE IX
Amendments
SECTION 9.1. Without Consent of Holders. The Company, the
Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities
without notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
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(2) to comply with Article IV in respect of the assumption by
a Successor Company of an obligation of the Company under this
Indenture;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to add Guarantees with respect to the Securities;
(5) to secure the Securities;
(6) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Company;
(7) to comply with any requirements of the SEC in connection
with qualifying this Indenture under the TIA;
(8) to make any change that does not materially adversely
affect the rights of any Securityholder; or
(9) to provide for the issuance of the Exchange Securities,
which will have terms substantially identical in all material respects
to the Initial Securities (except that the transfer restrictions
contained in the Initial Securities will be modified or eliminated, as
appropriate), and which will be treated, together with any outstanding
Initial Securities, as a single issue of securities.
SECTION 9.2. With Consent of Holders. The Company, the
Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities
without notice to any Securityholder but with the written consent of the Holders
of at least a majority in principal amount of the Securities then outstanding
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Securities). However, without the
consent of each Securityholder affected, an amendment may not:
(1) reduce the amount of Securities whose Holders must consent
to an amendment;
(2) reduce the stated rate of or extend the stated time for
payment of interest on any Security;
(3) reduce the principal of or extend the Stated Maturity of
any Security;
(4) reduce the premium payable upon the redemption or
repurchase of any Security or change the time at which any Security may
or shall be redeemed or repurchased as described above under Section
3.6 (including an amendment to the definition of "Change of Control")
or Article V or any similar provision, whether through an amendment to
or waiver of Section 3.6 or Article V, a definition or otherwise;
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(5) make any Security payable in money other than that stated
in the Security or, other than in accordance with the provisions of
this Indenture in effect on the Issue Date, eliminate any existing
Guarantee of the Securities;
(6) impair the right of any Holder to receive payment of
principal of, premium, if any, and interest on such Holder's Securities
on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Holder's
Securities; or
(7) make any change to the amendment provisions which require
each Holder's consent or to the waiver provisions.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section.
SECTION 9.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.4. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective or
otherwise in accordance with any related solicitation documents. After an
amendment or waiver becomes effective, it shall bind every Securityholder. An
amendment or waiver shall become effective upon receipt by the Trustee of the
requisite number of written consents under Section 9.1 or 9.2 as applicable.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall become
valid or effective more than 120 days after such record date.
SECTION 9.5. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the
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Company in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms. Failure to make the
appropriate notation or to issue a new Security shall not affect the validity of
such amendment.
SECTION 9.6. Trustee To Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article IX if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Sections 7.1 and 7.2) shall
be fully protected in relying upon an Officers' Certificate and an Opinion of
Counsel stating that such amendment is authorized or permitted by this Indenture
and that such amendment is the legal, valid and binding obligation of the
Company and any Guarantors, enforceable against them in accordance with its
terms, subject to customary exceptions and complies with the provisions hereof
(including Section 9.3).
ARTICLE X
Subsidiary Guarantee
SECTION 10.1. Subsidiary Guarantee. Each Subsidiary Guarantor
hereby fully, unconditionally and irrevocably guarantees, as primary obligor and
not merely as surety, jointly and severally with each other Subsidiary
Guarantor, to each Holder of the Securities and the Trustee the full and
punctual payment when due, whether at maturity, by acceleration, by redemption
or otherwise, of the principal of, premium, if any, and interest on the
Securities and all other obligations of the Company under this Indenture (all
the foregoing being hereinafter collectively called the "Obligations"). Each
Subsidiary Guarantor further agrees (to the extent permitted by law) that the
Obligations may be extended or renewed, in whole or in part, without notice or
further assent from it, and that it will remain bound under this Article X
notwithstanding any extension or renewal of any Obligation.
Each Subsidiary Guarantor waives presentation to, demand of
payment from and protest to the Company of any of the Obligations and also
waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice
of any default under the Securities or the Obligations. The obligations of each
Subsidiary Guarantor hereunder shall not be affected by (a) the failure of any
Holder to assert any claim or demand or to enforce any right or remedy against
the Company or any other person under this Indenture, the Securities or any
other agreement or otherwise; (b) any extension or renewal of any thereof; (c)
any rescission, waiver, amendment or modification of any of the terms or
provisions of this Indenture, the Securities or any other agreement; (d) the
release of any security held by any Holder or the Trustee for the Obligations or
any of them; (e) the failure of any Holder to exercise any right or remedy
against any other Subsidiary Guarantor; or (f) any change in the ownership of
the Company.
Each Subsidiary Guarantor further agrees that its Subsidiary
Guarantee herein constitutes a Guarantee of payment when due (and not a
Guarantee of collection) and waives any right to require that any resort be had
by any Holder to any security held for payment of the Obligations.
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The obligations of each Subsidiary Guarantor hereunder shall
not be subject to any reduction, limitation, impairment or termination for any
reason (other than payment of the Obligations in full), including any claim of
waiver, release, surrender, alteration or compromise, and shall not be subject
to any defense of setoff, counterclaim, recoupment or termination whatsoever or
by reason of the invalidity, illegality or unenforceability of the Obligations
or otherwise. Without limiting the generality of the foregoing, the obligations
of each Subsidiary Guarantor herein shall not be discharged or impaired or
otherwise affected by the failure of any Holder to assert any claim or demand or
to enforce any remedy under this Indenture, the Securities or any other
agreement, by any waiver or modification of any thereof, by any default, failure
or delay, willful or otherwise, in the performance of the Obligations, or by any
other act or thing or omission or delay to do any other act or thing which may
or might in any manner or to any extent vary the risk of any Subsidiary
Guarantor or would otherwise operate as a discharge of such Subsidiary Guarantor
as a matter of law or equity.
Each Subsidiary Guarantor further agrees that its Subsidiary
Guarantee herein shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of principal of or interest
on any of the Obligations is rescinded or must otherwise be restored by any
Holder upon the bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder has at law or in equity against any Subsidiary
Guarantor by virtue hereof, upon the failure of the Company to pay any of the
Obligations when and as the same shall become due, whether at maturity, by
acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby
promises to and will, upon receipt of written demand by the Trustee, forthwith
pay, or cause to be paid, in cash, to the Holders an amount equal to the sum of
(i) the unpaid amount of such Obligations then due and owing and (ii) accrued
and unpaid interest on such Obligations then due and owing (but only to the
extent not prohibited by law).
Each Subsidiary Guarantor further agrees that, as between such
Subsidiary Guarantor, on the one hand, and the Holders, on the other hand, (x)
the maturity of the Obligations guaranteed hereby may be accelerated as provided
in this Indenture for the purposes of its Subsidiary Guarantee herein,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed hereby and (y) in the
event of any such declaration of acceleration of such Obligations, such
Obligations (whether or not due and payable) shall forthwith become due and
payable by the Subsidiary Guarantor for the purposes of this Subsidiary
Guarantee.
Each Subsidiary Guarantor also agrees to pay any and all
reasonable costs and expenses (including reasonable attorneys' fees) incurred by
the Trustee or the Holders in enforcing any rights under this Section.
SECTION 10.2. Limitation on Liability; Termination, Release
and Discharge Upon Merger or Consolidation. The obligations of each Subsidiary
Guarantor hereunder will be limited to the maximum amount as will, after giving
effect to all other contingent and fixed liabilities of such Subsidiary
Guarantor (including, without limitation, any guarantees under the Senior Credit
Agreement and the 2006 Notes) and after giving effect to any collections from or
payments made by or on behalf of any other Subsidiary Guarantor in respect of
the obligations of
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such other Subsidiary Guarantor under its Subsidiary Guarantee or pursuant to
its contribution obligations under this Indenture, result in the obligations of
such Subsidiary Guarantor under its Subsidiary Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under federal or state law.
Each Subsidiary Guarantor may consolidate with or merge into
or sell its assets to the Company or another Subsidiary Guarantor without
limitation. Subject to Article III and Article IV, each Subsidiary Guarantor may
consolidate with or merge into or sell all or substantially all its assets to a
corporation, partnership or trust other than the Company or another Subsidiary
Guarantor (whether or not affiliated with the Subsidiary Guarantor), except that
if the surviving corporation of any such merger or consolidation is a Subsidiary
of the Company, such merger, consolidation or sale shall not be permitted unless
(i) the Person formed by or surviving any such consolidation or merger assumes
all the obligations of such Subsidiary under the Subsidiary Guarantee pursuant
to a supplemental indenture in form and substance reasonably satisfactory to the
Trustee in respect of the Securities, this Indenture and the Subsidiary
Guarantee, (ii) immediately after giving effect to such transaction, no Default
or Event of Default exists; and (iii) the Company delivers to the Trustee an
Officers' Certificate and an Opinion of Counsel addressed to the Trustee with
respect to the foregoing matters. Upon the sale or disposition of a Subsidiary
Guarantor (by merger, consolidation, the sale of its Capital Stock or the sale
of all or substantially all of its assets (other than by lease)) and whether or
not the Subsidiary Guarantor is the surviving corporation in such transaction to
a Person (whether or not an Affiliate of the Subsidiary Guarantor) which is not
the Company or a Subsidiary of the Company, which sale or disposition is
otherwise in compliance with this Indenture, such Subsidiary Guarantor will be
released from all its obligations under this Indenture and its Subsidiary
Guarantee and such Subsidiary Guarantee will terminate; provided, however, that
any such termination will occur only to the extent that (x) with respect to each
Subsidiary Guarantor other than MCA, each such Subsidiary Guarantor will be
released from obligations under its Subsidiary Guarantee if all the obligations
of such Subsidiary Guarantor under the Senior Credit Agreement, the 2006 Notes
and related documentation terminate upon consummation of such transaction and
(y) with respect to MCA, MCA will be released from its obligations under its
Subsidiary Guarantee if the Company and its remaining Subsidiaries are not
liable with respect to any Debt of MCA.
SECTION 10.3. Right of Contribution. Each Subsidiary Guarantor
hereby agrees that to the extent that any Subsidiary Guarantor shall have paid
more than its proportionate share of any payment made on the obligations under
the Subsidiary Guarantees, such Subsidiary Guarantor shall be entitled to seek
and receive contribution from and against the Company or any other Subsidiary
Guarantor who has not paid its proportionate share of such payment. The
provisions of this Section 10.3 shall in no respect limit the obligations and
liabilities of each Subsidiary Guarantor to the Trustee and the Holders and each
Subsidiary Guarantor shall remain liable to the Trustee and the Holders for the
full amount guaranteed by such Subsidiary Guarantor hereunder.
SECTION 10.4. No Subrogation. Notwithstanding any payment or
payments made by each Subsidiary Guarantor hereunder, no Subsidiary Guarantor
shall be entitled to be subrogated to any of the rights of the Trustee or any
Holder against the Company or any other Subsidiary Guarantor or any collateral
security or guarantee or right of offset held by the Trustee
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or any Holder for the payment of the Obligations, nor shall any Subsidiary
Guarantor seek or be entitled to seek any contribution or reimbursement from the
Company or any other Subsidiary Guarantor in respect of payments made by such
Subsidiary Guarantor hereunder, until all amounts owing to the Trustee and the
Holders by the Company on account of the Obligations are paid in full. If any
amount shall be paid to any Subsidiary Guarantor on account of such subrogation
rights at any time when all of the Obligations shall not have been paid in full,
such amount shall be held by such Subsidiary Guarantor in trust for the Trustee
and the Holders, segregated from other funds of such Subsidiary Guarantor, and
shall, forthwith upon receipt by such Subsidiary Guarantor, be turned over to
the Trustee in the exact form received by such Subsidiary Guarantor (duly
indorsed by such Subsidiary Guarantor to the Trustee, if required), to be
applied against the Obligations.
ARTICLE XI
Miscellaneous
SECTION 11.1. Trust Indenture Act Controls. If any provision
of this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the provision required by
the TIA shall control. Each Subsidiary Guarantor in addition to performing its
obligations under its Subsidiary Guarantee shall perform such other obligations
as may be imposed upon it with respect to this Indenture under the TIA.
SECTION 11.2. Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
Manor Care, Inc.
333 North Summit Street
Toledo, Ohio 43604
Attention: Mr. Paul Ormond, Chief Executive Officer
With a copy to:
Latham & Watkins
Sears Tower, Suite 5800
Chicago, Illinois 60606
Attention: Michael Levin, Esq.
if to the Trustee:
National City Bank
629 Euclid Avenue
Cleveland, OH 44114-3484
Attention: Corporate Trust Department
Locator 01-3116
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With a copy to:
Winston & Strawn
200 Park Avenue
New York, NY 10166
Attention: Jeffrey H. Elkin, Esq.
For purposes of Section 2.3 (with respect to presentation of
Securities for payment or for registrations of transfer or exchange) if to the
Trustee: National City Bank, c/o Mellon Securities Trust Company, 120 Broadway,
13th Floor, New York, NY 10271.
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a registered
Securityholder shall be mailed to the Securityholder at the Securityholder's
address as it appears on the registration books of the Registrar and shall be
sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it, except that
notices to the Trustee shall be effective only upon receipt.
SECTION 11.3. Communication by Holders with other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 11.4. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or
opinion has read such covenant or condition;
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(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
In giving such Opinion of Counsel, counsel may rely as to
factual matters on an Officers' Certificate or on certificates of public
officials.
SECTION 11.6. When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities 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 disregarded and
deemed not to be outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities which the Trustee knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Securities outstanding at the
time shall be considered in any such determination.
SECTION 11.7. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by, or a meeting of,
Securityholders. The Registrar and the Paying Agent may make reasonable rules
for their functions.
SECTION 11.8. Legal Holidays. A "Legal Holiday" is a Saturday,
a Sunday or other day on which commercial banking institutions are authorized or
required to be closed in New York City or Cleveland, Ohio. If a payment date is
a Legal Holiday, payment shall be made on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening period. If a
regular record date is a Legal Holiday, the record date shall not be affected.
SECTION 11.9. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
SECTION 11.10. No Recourse Against Others. An incorporator,
director, officer, employee, affiliate or stockholder of the Company or any
Subsidiary Guarantor, solely by reason of this status, shall not have any
liability for any obligations of the Company under the Securities, this
Indenture or the Subsidiary Guarantees or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a Security,
each Securityholder shall waive and release all such liability. The waiver and
release shall be part of the consideration for the issue of the Securities.
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SECTION 11.11. Successors. All agreements of the Company in
this Indenture and the Securities shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 11.12. Multiple 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. One signed copy is enough to
prove this Indenture.
SECTION 11.13. Variable Provisions. The Company initially
appoints the Trustee as Paying Agent and Registrar and custodian with respect to
any Global Securities.
SECTION 11.14. Qualification of Indenture. The Company shall
qualify this Indenture under the TIA in accordance with the terms and conditions
of the Exchange and Registration Rights Agreement and shall pay all reasonable
costs and expenses (including attorneys' fees and expenses for the Company, the
Trustee and the Holders) incurred in connection therewith, including, but not
limited to, costs and expenses of qualification of this Indenture and the
Securities and printing this Indenture and the Securities. The Trustee shall be
entitled to receive from the Company any such Officers' Certificates, Opinions
of Counsel or other documentation as it may reasonably request in connection
with any such qualification of this Indenture under the TIA.
SECTION 11.15. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
62
69
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
MANOR CARE, INC.
By: /s/ Geoffrey G. Meyers
--------------------------------
Name: Geoffrey G. Meyers
Title: Executive Vice President and
Chief Financial Officer
[SIGNATURE PAGE TO INDENTURE]
70
SUBSIDIARY GUARANTORS
AMERICAN HOSPITAL BUILDING CORPORATION
AMERICANA HEALTHCARE CENTER OF PALOS
TOWNSHIP, INC.
AMERICANA HEALTHCARE CORPORATION OF GEORGIA
AMERICANA HEALTHCARE CORPORATION OF NAPLES
ANCILLARY SERVICES MANAGEMENT, INC.
ARCHIVE ACQUISITION, INC.
ARCHIVE RETRIEVAL SYSTEMS, INC.
BAILY NURSING HOME, INC.
BIRCHWOOD MANOR, INC.
BLUE RIDGE REHABILITATION SERVICES, INC.
CANTERBURY VILLAGE, INC.
CHARLES MANOR, INC.
CHESAPEAKE MANOR, INC.
DEKALB HEALTHCARE CORPORATION
DEVON MANOR CORPORATION
DISTCO, INC.
DIVERSIFIED REHABILITATION SERVICES, INC.
DONAHOE MANOR, INC.
EAST MICHIGAN CARE CORPORATION
[SIGNATURE PAGE TO INDENTURE]
71
EXECUTIVE ADVERTISING, INC.
EYE-Q NETWORK, INC.
FOUR SEASONS NURSING CENTERS, INC.
GEORGIAN BLOOMFIELD, INC.
GREENVIEW MANOR, INC.
HCR ACQUISITION CORPORATION
HCR HOME HEALTH CARE AND HOSPICE, INC.
HCR HOSPITAL HOLDING COMPANY, INC.
HCR INFORMATION CORPORATION
HCR MANORCARE MEDICAL SERVICES OF
FLORIDA, INC.
HCR PHYSICIAN MANAGEMENT SERVICES, INC.
HCR REHABILITATION CORP.
HCRA OF TEXAS, INC.
HCRC INC.
HEALTH CARE AND RETIREMENT CORPORATION OF
AMERICA
HEALTHCARE CONSTRUCTION CORP.
HEARTLAND CAREPARTNERS, INC.
HEARTLAND EMPLOYMENT SERVICES, INC.
HEARTLAND HOME CARE, INC.
HEARTLAND HOME HEALTH CARE SERVICES, INC.
[SIGNATURE PAGE TO INDENTURE]
72
HEARTLAND HOSPICE SERVICES, INC.
HEARTLAND MANAGEMENT SERVICES, INC.
HEARTLAND MEDICAL INFORMATION SERVICES,
INC.
HEARTLAND REHABILITATION SERVICES OF
FLORIDA, INC.
HEARTLAND REHABILITATION SERVICES, INC.
HEARTLAND SERVICES CORP.
HERBERT LASKIN, RPT - JOHN MCKENZIE, RPT
PHYSICAL THERAPY PROFESSIONAL ASSOCIATES,
INC.
HGCC OF ALLENTOWN, INC.
IN HOME HEALTH, INC.
INDUSTRIAL WASTES, INC.
IONIA MANOR, INC.
JACKSONVILLE HEALTHCARE CORPORATION
KENSINGTON MANOR, INC.
KNOLLVIEW MANOR, INC.
LEADER NURSING AND REHABILITATION CENTER OF
BETHEL PARK, INC.
LEADER NURSING AND REHABILITATION CENTER OF
GLOUCESTER, INC.
LEADER NURSING AND REHABILITATION CENTER OF
SCOTT TOWNSHIP, INC.
LEADER NURSING AND REHABILITATION CENTER OF
VIRGINIA INC.
[SIGNATURE PAGE TO INDENTURE]
73
LINCOLN HEALTH CARE, INC.
MANOR CARE AVIATION, INC.
MANOR CARE MANAGEMENT CORPORATION
MANOR CARE OF AKRON, INC.
MANOR CARE OF AMERICA, INC
MANOR CARE OF ARIZONA, INC.
MANOR CARE OF ARLINGTON, INC.
MANOR CARE OF BOCA RATON, INC.
MANOR CARE OF BOYNTON BEACH, INC.
MANOR CARE OF CANTON, INC.
MANOR CARE OF CENTERVILLE, INC
MANOR CARE OF CHARLESTON, INC.
MANOR CARE OF CINCINNATI, INC.
MANOR CARE OF COLUMBIA, INC.
MANOR CARE OF DARIEN, INC.
MANOR CARE OF DELAWARE COUNTY, INC.
MANOR CARE OF DUNEDIN, INC.
MANOR CARE OF FLORIDA, INC.
MANOR CARE OF HINSDALE, INC.
MANOR CARE OF KANSAS, INC.
MANOR CARE OF KINGSTON COURT, INC.
MANOR CARE OF LARGO, INC.
MANOR CARE OF LEXINGTON, INC.
[SIGNATURE PAGE TO INDENTURE]
74
MANOR CARE OF MEADOW PARK, INC.
MANOR CARE OF MIAMISBURG, INC
MANOR CARE OF NORTH OLMSTEAD, INC.
MANOR CARE OF PINEHURST, INC.
MANOR CARE OF PLANTATION, INC.
MANOR CARE OF ROLLING MEADOWS, INC.
MANOR CARE OF ROSSVILLE, INC.
MANOR CARE OF SARASOTA, INC.
MANOR CARE OF WILLOUGHBY, INC.
MANOR CARE OF WILMINGTON, INC.
MANOR CARE OF YORK (NORTH), INC.
MANOR CARE OF YORK (SOUTH), INC.
MANOR CARE PROPERTIES, INC.
MANOR LIVING CENTERS, INC.
MANORCARE HEALTH SERVICES OF BOYNTON
BEACH, INC.
MANORCARE HEALTH SERVICES OF GEORGIA, INC.
MANORCARE HEALTH SERVICES OF NORTHHAMPTON
COUNTY, INC.
MANORCARE HEALTH SERVICES OF VIRGINIA, INC.
MANORCARE HEALTH SERVICES, INC.
MARINA VIEW MANOR, INC.
MCHS OF NEW YORK, INC.
[SIGNATURE PAGE TO INDENTURE]
75
MEDICAL AID TRAINING SCHOOLS, INC.
MEDI-SPEECH SERVICE, INC.
MID-SHORE PHYSICAL THERAPY ASSOCIATES, INC.
MILESTONE HEALTH SYSTEMS, INC.
MILESTONE HEALTHCARE, INC.
MILESTONE REHABILITATION SERVICES, INC.
MILESTONE STAFFING SERVICES, INC.
MILESTONE THERAPY SERVICES, INC.
MNR FINANCE CORP.
MRC REHABILITATION, INC.
MRS, INC.
NEW MANORCARE HEALTH SERVICES, INC.
NUVISTA REFRACTIVE SURGERY AND LASER
CENTERS, INC.
PEAK REHABILITATION, INC.
PERRYSBURG PHYSICAL THERAPY, INC
PHYSICAL, OCCUPATIONAL, AND SPEECH THERAPY,
INC.
PNEUMATIC CONCRETE, INC.
PORTFOLIO ONE, INC.
REHABILITATION ADMINISTRATION CORPORATION
REHABILITATION ASSOCIATES, INC.
[SIGNATURE PAGE TO INDENTURE]
76
REHABILITATION SERVICES OF ROANOKE, INC.
REINBOLT & BURKAM, INC.
RICHARDS HEALTHCARE, INC.
RIDGEVIEW MANOR, INC.
ROLAND PARK NURSING CENTER, INC.
RVA MANAGEMENT SERVICES, INC.
SILVER SPRING - WHEATON NURSING HOME, INC.
SPRINGHILL MANOR, INC.
STEWALL CORPORATION
STRATFORD MANOR, INC.
STUTEX CORP.
SUN VALLEY MANOR, INC.
THE NIGHTINGALE NURSING HOME, INC.
THERAPY ASSOCIATES, INC.
THERASPORT PHYSICAL THERAPY, INC.
THREE RIVERS MANOR, INC.
TOTALCARE CLINICAL LABORATORIES, INC.
VISION MANAGEMENT SERVICES, INC.
WASHTENAW HILLS MANOR, INC.
[SIGNATURE PAGE TO INDENTURE]
77
WHITEHALL MANOR, INC.
By: /s/ R. Jeffrey Bixler
--------------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General Counsel
and Secretary of each of the
above-referenced corporations.
Address: One Seagate
Toledo, Ohio 43604-2616
Fax No.: 419-252-5571
Telephone: 419-252-5500
[SIGNATURE PAGE TO INDENTURE]
78
HCR HOSPITAL, LLC
By: HCR Hospital Holding Company, Inc.,
its sole member
By: /s/ R. Jeffrey Bixler
--------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General
Counsel and Secretary
Address: One Seagate
Toledo, Ohio 43604-2616
Fax No. 419-252-5571
Telephone: 419-252-5500
[SIGNATURE PAGE TO INDENTURE]
79
ANCILLARY SERVICES, LLC
By: Heartland Rehabilitation Services,
Inc., its sole member
By: /s/ R. Jeffrey Bixler
-----------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General
Counsel and Secretary
Address: One Seagate
Toledo, Ohio 43604-2616
Fax No. 419-252-5571
Telephone: 419-252-5500
[SIGNATURE PAGE TO INDENTURE]
80
BATH ARDEN, LLC
CLAIRE BRIDGE OF ANDERSON, LLC
CLAIRE BRIDGE OF AUSTIN, LLC
CLAIRE BRIDGE OF KENWOOD, LLC
CLAIRE BRIDGE OF SAN ANTONIO, LLC
CLAIRE BRIDGE OF SUSQUEHANNA, LLC
CLAIRE BRIDGE OF WARMINSTER, LLC
EMERSON SPRINGHOUSE, LLC
FRESNO ARDEN, LLC
LAKE ZURICH ARDEN, LLC
MESQUITE HOSPITAL, LLC
METUCHEN ARDEN, LLC
MIDDLETOWN ARDEN, LLC
MONROE ARDEN, LLC
MOORESTOWN ARDEN, LLC
OVERLAND PARK ARDEN, LLC
OVERLAND PARK SKILLED NURSING, LLC
ROCKFORD ARDEN, LLC
ROCKLEIGH ARDEN, LLC
TOM'S RIVER ARDEN, LLC
TUSCAWILLA ARDEN, LLC
WAYNE ARDEN, LLC
WAYNE SPRINGHOUSE, LLC
[SIGNATURE PAGE TO INDENTURE]
81
WEST DEPTFORD ARDEN, LLC
WEST ORANGE ARDEN, LLC
WEST ORANGE SPRINGHOUSE, LLC
By: Manor Care Health Services, Inc., the
sole member of each of the above-
referenced limited liability companies
By: /s/ R. Jeffrey Bixler
----------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General
Counsel and Secretary
Address: One Seagate
Toledo, Ohio 43604-2616
Fax No. 419-252-5571
Telephone: 419-252-5500
[SIGNATURE PAGE TO INDENTURE]
82
ALBUQUERQUE ARDEN, LLC
ANNANDALE ARDEN, LLC
BAINBRIDGE ARDEN, LLC
BINGHAM FARMS ARDEN, LLC
COLONIE ARDEN, LLC
CRESTVIEW HILLS ARDEN, LLC
FIRST LOUISVILLE ARDEN, LLC
GENEVA ARDEN, LLC
HANOVER ARDEN, LLC
JEFFERSON ARDEN, LLC
KANSAS SKILLED NURSING, LLC
KENWOOD ARDEN, LLC
LAURELDALE ARDEN, LLC
LEXINGTON ARDEN, LLC
LINWOOD ARDEN, LLC
LIVONIA ARDEN, LLC
MEMPHIS ARDEN, LLC
NAPA ARDEN, LLC
NASHVILLE ARDEN, LLC
NISHAYUNA ARDEN, LLC
ROANOKE ARDEN, LLC
SAN ANTONIO ARDEN, LLC
SECOND LOUISVILLE ARDEN, LLC
[SIGNATURE PAGE TO INDENTURE]
83
SETAUKET ARDEN, LLC
SILVER SPRING ARDEN, LLC
SUSQUEHANNA ARDEN LLC
TAMPA ARDEN, LLC
TUSTIN ARDEN, LLC
WALL ARDEN, LLC
WARMINSTER ARDEN LLC
WEST WINDSOR ARDEN, LLC
WILLIAMS VILLE ARDEN, LLC
By: Manor Care of America, Inc., its sole member
By: /s/ R. Jeffrey Bixler
------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General
Counsel and Secretary
Address: One Seagate
Toledo, Ohio 43604-2616
Fax No. 419-252-5571
Telephone: 419-252-5500
[SIGNATURE PAGE TO INDENTURE]
84
BOOTH LIMITED PARTNERSHIP
By: Jacksonville Healthcare Corporation,
its general partner
By: /s/ R. Jeffrey Bixler
-----------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General
Counsel and Secretary
Address: One Seagate
Toledo, Ohio 43604-2616
Fax No. 419-252-5571
Telephone: 419-252-5500
[SIGNATURE PAGE TO INDENTURE]
85
COLEWOOD LIMITED PARTNERSHIP
By: American Hospital Building Corporation,
its general partner
By: /s/ R. Jeffrey Bixler
-----------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General
Counsel and Secretary
Address: One Seagate
Toledo, Ohio 43604-2616
Fax No. 419-252-5571
Telephone: 419-252-5500
[SIGNATURE PAGE TO INDENTURE]
86
HCR MANOR CARE MESQUITE, L.P.
By: Mesquite Hospital, LLC, its general
partner
By: /s/ R. Jeffrey Bixler
-----------------------------------
Name: R. Jeffrey Bixler
Title: Vice President, General
Counsel and Secretary
Address: One Seagate
Toledo, Ohio 43604-2616
Fax No. 419-252-5571
Telephone: 419-252-5500
[SIGNATURE PAGE TO INDENTURE]
87
NATIONAL CITY BANK, as Trustee
By: /s/ Christine Robinette
----------------------------------------
Name: Christine Robinette
Title: Vice President
[SIGNATURE PAGE TO INDENTURE]
88
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
[Applicable Restricted Securities Legend]
[Depository Legend, if applicable]
No. [___] Principal Amount $[_____________], as
revised by the Schedule of Increases and Decreases in Global Security attached
hereto
CUSIP NO. _______________
ISIN: _______________
8% Senior Notes due 2008
Manor Care, Inc., a Delaware corporation, promises to pay to
[__________], or registered assigns, the principal sum of [_______________]
Dollars, as revised by the Schedule of Increases and Decreases in Global
Security attached hereto, on March 1, 2008.
Interest Payment Dates: March 1 and September 1
Record Dates: February 15 and August 15
Additional provisions of this Security are set forth on the
other side of this Security.
MANOR CARE, INC.
By:_____________________________________
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
NATIONAL CITY BANK,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By
Authorized Signatory Date: [________] __, 2001
A-1
89
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
8% Senior Note due 2008
1. Interest
Manor Care, Inc., a Delaware corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company"), promises to pay interest on the principal
amount of this Security at the rate per annum shown above.
The Company will pay interest semiannually on March 1 and
September 1 of each year commencing September 1, 2001. Interest on the
Securities will accrue from the most recent date to which interest has been paid
on the Securities or, if no interest has been paid, from March 8, 2001. The
Company shall pay interest on overdue principal or premium, if any (plus
interest on such interest to the extent lawful), at the rate borne by the
Securities to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
2. Method of Payment
By at least 10:00 a.m. (New York City time) on the date on
which any principal of or interest on any Security is due and payable, the
Company shall irrevocably deposit with the Trustee or the Paying Agent money
sufficient to pay such principal, premium, if any, and/or interest. The Company
will pay interest (except Defaulted Interest) to the Persons who are registered
Holders of Securities at the close of business on the February 15 or August 15
next preceding the interest payment date even if Securities are cancelled,
repurchased or redeemed after the record date and on or before the interest
payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. Except as described in the succeeding two sentences, the
principal of (and premium, if any) and interest on the Securities shall be
payable at the office or agency of the Company maintained for such purpose in
The City of New York, or at such other office or agency of the Company as may be
maintained for such purpose pursuant to Section 2.3 of the Indenture; provided,
however, that, at the option of the Company, each installment of interest may be
paid by check mailed to addresses of the Persons entitled thereto as such
addresses shall appear on the Note Register. Payments in respect of Securities
represented by a Global Security (including principal, premium and interest)
will be made by wire transfer of immediately available funds to the accounts
specified by The Depository Trust Company. Payments in respect of Securities
represented by Definitive Securities (including principal, premium, if any, and
interest) held by a Holder of at least $1,000,000 aggregate principal amount of
Securities represented by Definitive Securities will be made by wire transfer to
a U.S. dollar account maintained by the payee with a bank in the United States
if such Holder elects payment by wire transfer by giving written notice to the
Trustee or the Paying Agent to such effect designating such account no later
than 15 days immediately preceding the relevant due date for payment (or such
other date as the Trustee may accept in its discretion).
A-2
90
3. Paying Agent and Registrar
Initially, National City Bank (the "Trustee"), will act as
Trustee, Paying Agent and Registrar. The Company may appoint and change any
Paying Agent, Registrar or co-registrar without notice to any Securityholder.
The Company or any of its Subsidiaries may act as Paying Agent, Registrar or
co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as
of March 8, 2001 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), among the Company, the
Subsidiary Guarantors and the Trustee. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on
the date of the Indenture (the "Act"). Capitalized terms used herein and not
defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the Act for a statement of those terms.
The Securities are general unsecured senior obligations of the
Company limited to $200.0 million aggregate principal amount (subject to Section
2.9 of the Indenture). This Security is one of the Original Securities (also
referred to as Initial Securities) referred to in the Indenture. The Initial
Securities, Private Exchange Securities and the Exchange Securities will be
treated as a single class of securities under the Indenture. The Indenture
imposes certain limitations on, among other things: the Incurrence of Liens by
the Company or its Subsidiaries, Sale and Lease-Back Transactions by the Company
or its Subsidiaries, consolidation, mergers and sale of assets of the Company,
and transactions with Affiliates.
To guarantee the due and punctual payment of the principal,
premium, if any, and interest on the Securities and all other amounts payable by
the Company under the Indenture and the Securities when and as the same shall be
due and payable, whether at maturity, by acceleration or otherwise, according to
the terms of the Securities and the Indenture, the Subsidiary Guarantors have
unconditionally guaranteed (and future Subsidiary Guarantors, together with the
Subsidiary Guarantors, will unconditionally guarantee), jointly and severally,
such obligations on a senior basis pursuant to the terms of the Indenture.
5. Redemption
The Securities will be redeemable, at the option of the
Company, in whole at any time or in part from time to time, on at least 30 days
but not more than 60 days' prior notice mailed to the registered address of each
Holder of Securities to be so redeemed, at a redemption price equal to the
greater of (i) 100% of their principal amount plus accrued but unpaid interest
to the date of redemption or (ii) the sum of (a) the present values of the
remaining scheduled payments of principal and interest thereon from the date of
redemption to the date of maturity (except for currently accrued but unpaid
interest) discounted to the date of redemption, on a semiannual basis (assuming
a 360-day year consisting of twelve 30-day months), at the Treasury Rate (as
defined below), plus 50 basis points, plus (b) accrued but unpaid interest to
the date of redemption.
A-3
91
For purposes of determining the optional redemption price, the
following definitions are applicable:
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Securities to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Securities.
"Comparable Treasury Price" means, with respect to any
redemption date, the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
on the third business day preceding such redemption date, (i) as set forth in
the daily statistical release (or any successor release) published by the
Federal Reserve Bank of New York or published on the website of the Federal
Reserve Bank of New York at http://www.ny.frb.org and designated "Composite 3:30
p.m. Quotations for the U.S. Government Securities" or (ii) if such release (or
any successor release) is not published or does not contain such prices on such
business day, the average of the Reference Treasury Dealer Quotations for such
redemption date.
"Independent Investment Banker" means the Reference Treasury
Dealer appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means JPMorgan, a division of
Chase Securities Inc. ("JPMorgan"), and its successors; provided, however, that
if JPMorgan shall cease to be a primary U.S. Government Securities dealer in New
York City (a "Primary Treasury Dealer"), the Company shall substitute therefor
another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
on the third business day preceding such redemption date.
"Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
In the case of any partial redemption, selection of the
Securities for redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Securities are listed or, if the Securities are not listed, then on a pro rata
basis, by lot or by such other method as the Trustee in its sole discretion
shall deem to be fair and appropriate, although no Securities of $1,000 in
original principal amount or less will be redeemed in part. If any Security is
to be redeemed in part only, the notice of redemption relating to such Security
shall state the portion of the principal amount thereof to be redeemed. A new
Security in principal amount equal to the unredeemed portion thereof will be
issued in the name of the Holder thereof upon cancellation of the original
Security. On and after
A-4
92
the redemption date, interest will cease to accrue on Securities or portions
thereof called for redemption as long as the Company has deposited with the
Paying Agent funds in satisfaction of the applicable redemption price pursuant
to the Indenture.
6. Repurchase Provisions
Upon the occurrence of a Change of Control Triggering Event,
any Holder of Securities will have the right to cause the Company to offer to
repurchase all or any part of the Securities of such Holder at a purchase price
in cash equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the date of repurchase (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date) as provided in, and subject to the terms of, the
Indenture.
7. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of $1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange (i) any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
for a period beginning 15 days before the mailing of a notice of Securities to
be redeemed and ending on the date of such mailing or (ii) any Securities for a
period beginning 15 days before an interest payment date and ending on such
interest payment date.
8. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
9. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
10. Defeasance
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Securities for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
A-5
93
11. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the then outstanding
Securities and (ii) any default (other than with respect to nonpayment or in
respect of a provision that cannot be amended without the written consent of
each Securityholder affected) or noncompliance with any provision may be waived
with the written consent of the Holders of a majority in principal amount of the
then outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article IV of the
Indenture, or to provide for uncertificated Securities in addition to or in
place of certificated Securities, or to add guarantees with respect to the
Securities, or to secure the Securities, or to add additional covenants of the
Company or its Subsidiaries, or surrender rights and powers conferred on the
Company or its Subsidiaries, or to comply with any request of the SEC in
connection with qualifying the Indenture under the Act, or to make any change
that does not adversely affect the rights of any Securityholder, or to provide
for the issuance of Exchange Securities.
12. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest when due on the Securities; (ii) default in
payment of principal or premium, if any, on the Securities at Stated Maturity,
upon required repurchase or upon optional redemption pursuant to paragraph 5 of
the Securities, upon declaration or otherwise; (iii) the failure by the Company
or any Subsidiary Guarantor to comply with its obligations under Article IV or
Section 10.2 of the Indenture; (iv) failure by the Company to comply for 30 days
after notice with any of its obligations under the covenants described under
Sections 3.3 through 3.8 inclusive and Section 3.12 of the Indenture (in each
case, other than a failure to purchase Securities when required pursuant to
Section 3.6, which failure shall constitute an Event of Default under clause
(ii) above); (v) the failure by the Company to comply for 60 days after written
notice with its other agreements contained in the Indenture or under the
Securities (other than those referred to in (i), (ii), (iii) or (iv) above);
(vi) default under any mortgage, indenture or instrument under which there may
be issued or by which there may be outstanding, or by which there may be secured
or evidenced any Debt for money borrowed by the Company or any of its
Subsidiaries (other than Non-Recourse Debt of a Non-Recourse Subsidiary),
whether such Debt now exists, or is created after the date of the Indenture,
which default (a) is caused by a failure to pay principal of, or interest or
premium, if any, on such Debt prior to the expiration of the grace period
provided in such Debt ("Payment Default") or (b) results in the acceleration of
such Debt prior to its maturity (the "cross acceleration provision") and, in
each case, the principal amount of any such Debt, together with the principal
amount of any other such Debt under which there has been a Payment Default or
the maturity of which has been so accelerated, aggregates $20.0 million or more
or its foreign currency equivalent at the time and such acceleration shall not
have been rescinded or annulled within 10 days after written notice of such
acceleration has been received by the Company or such Subsidiary; (vii) certain
events of bankruptcy, insolvency or reorganization of the Company (the
"bankruptcy provisions"); or (viii) entry in a court of competent jurisdiction
of a final judgment for the payment of $20.0 million or more rendered against
the Company or any Subsidiary, which judgment is not fully covered by insurance
or not discharged or stayed within
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90 days after (A) the date on which the right to appeal thereof has expired if
no such appeal has commenced, or (B) the date on which all rights to appeal have
been extinguished (the "judgment default provision"). However, a default under
clauses (iv) and (v) will not constitute an Event of Default until the Trustee
or the Holders of at least 25% in principal amount of the outstanding Securities
notify the Company of the default and the Company does not cure such default
within the time specified in clauses (iv) and (v) hereof after receipt of such
notice.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Securities may declare
all the Securities by notice to the Company to be due and payable immediately.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any continuing
Default or Event of Default (except a Default or Event of Default in payment of
principal or interest) if it determines that withholding notice is in their
interest.
13. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
14. No Recourse Against Others
An incorporator, director, officer, employee, affiliate or
stockholder, of each of the Company, or any Subsidiary Guarantor, solely by
reason of this status, shall not have any liability for any obligations of the
Company under the Securities, the Indenture or any Subsidiary Guarantees or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
15. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent acting on its behalf) manually signs
the certificate of authentication on the other side of this Security.
16. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entirety), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to
Minors Act).
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17. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
18. Governing Law
This Security shall be governed by, and construed in
accordance with, the laws of the State of New York.
The Company will furnish to any Securityholder upon written
request and without charge to the Securityholder a copy of the Indenture which
has in it the text of this Security in larger type. Requests may be made to:
Manor Care, Inc.
333 North Summit Street
Toledo, Ohio 43604
Attention: Mr. Geoffrey Meyers, Chief Financial Officer
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
__________________________________________________________
(Print or type assignee's name, address and zip code)
_____________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ___________ agent to transfer this Security on
the books of the Company. The agent may substitute another to act for
him.
________________________________________________________________________________
Date:____________________ Your Signature:_____________________________
Signature Guarantee:____________________________________________________________
(Signature must be guaranteed)
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
In connection with any transfer or exchange of any of the Securities evidenced
by this certificate occurring prior to the date that is two years after the
later of the date of original issuance of such Securities and the last date, if
any, on which such Securities were owned by the Company or any Affiliate of the
Company, the undersigned confirms that such Securities are being:
CHECK ONE BOX BELOW:
[ ] 1 acquired for the undersigned's own account, without transfer;
or
[ ] 2 transferred to the Company; or
[ ] 3 transferred pursuant to and in compliance with Rule 144A under
the Securities Act of 1933, as amended (the "Securities Act");
or
[ ] 4 transferred pursuant to an effective registration statement
under the Securities Act; or
[ ] 5 transferred pursuant to and in compliance with Regulation S
under the Securities Act; or
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[ ] 6 transferred to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act), that has furnished to the Trustee a signed
letter containing certain representations and agreements (the
form of which letter appears as Section 2.7 of the Indenture);
or
[ ] 7 transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered Holder thereof; provided, however, that if box (5), (6) or
(7) is checked, the Trustee or the Company may require, prior to registering any
such transfer of the Securities, in their sole discretion, such legal opinions,
certifications and other information as the Trustee or the Company may
reasonably request to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, such as the exemption provided by
Rule 144 under such Act.
________________________________
Signature
Signature Guarantee:
______________________________ ________________________________
(Signature must be guaranteed) Signature
________________________________________________________________________________
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
TO BE COMPLETED BY PURCHASER IF (1) OR (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, as amended, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing representations
in order to claim the exemption from registration provided by Rule 144A.
________________________________
Dated:
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[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security
have been made:
Principal Amount of Signature of
Date of Amount of decrease in Amount of increase in this Global Security authorized signatory
Exchange Principal Amount of Principal Amount of following such of Trustee or
this Global Security this Global Security decrease or increase Securities Custodian
- --------------- ---------------------- ---------------------- ---------------------- ---------------------
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 3.6 of the Indenture, state the
amount in principal amount (must be integral multiple of $1,000): $
Date: __________ Your Signature ________________________________________________
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee: ___________________________________________________________
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
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EXHIBIT B
[FORM OF FACE OF EXCHANGE SECURITY]
[Depository Legend, if applicable]
No. [_____] Principal Amount $[____________],
as revised by the Schedule of
Increases and Decreases in Global
Security attached hereto
CUSIP NO. _______________
ISIN: _______________
8% Series B Senior Notes due 2008
Manor Care, Inc., a Delaware corporation, promises to pay to
[______________], or registered assigns, the principal sum of [_______________]
Dollars, as revised by the Schedule of Increases and Decreases in Global
Security attached hereto, on March 1, 2008.
Interest Payment Dates: March 1 and September 1
Record Dates: February 15 and August 15
Additional provisions of this Security are set forth on the
other side of this Security.
MANOR CARE, INC.
By:______________________________________
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
NATIONAL CITY BANK,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
By:
Authorized Signatory Date: ____________________
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[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]
8% Series B Senior Notes due 2008
1. Interest
Manor Care, Inc., a Delaware corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company"), promises to pay interest on the principal
amount of this Security at the rate per annum shown above.
The Company will pay interest semiannually on March 1 and
September 1 of each year commencing September 1, 2001. Interest on the
Securities will accrue from the most recent date to which interest has been paid
on the Securities or, if no interest has been paid, from March 8, 2001. The
Company shall pay interest on overdue principal or premium, if any (plus
interest on such interest to the extent lawful), at the rate borne by the
Securities to the extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
2. Method of Payment
By at least 10:00 a.m. (New York City time) on the date on
which any principal of or interest on any Security is due and payable, the
Company shall irrevocably deposit with the Trustee or the Paying Agent money
sufficient to pay such principal, premium, if any, and/or interest. The Company
will pay interest (except Defaulted Interest) to the Persons who are registered
Holders of Securities at the close of business on the February 15 or August 15
next preceding the interest payment date even if Securities are cancelled,
repurchased or redeemed after the record date and on or before the interest
payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. Except as described in the succeeding two sentences, the
principal of (and premium, if any) and interest on the Securities shall be
payable at the office or agency of the Company maintained for such purpose in
The City of New York, or at such other office or agency of the Company as may be
maintained for such purpose pursuant to Section 2.3 of the Indenture; provided,
however, that, at the option of the Company, each installment of interest may be
paid by check mailed to addresses of the Persons entitled thereto as such
addresses shall appear on the Note Register. Payments in respect of Securities
represented by a Global Security (including principal, premium and interest)
will be made by wire transfer of immediately available funds to the accounts
specified by The Depository Trust Company. Payments in respect of Securities
represented by Definitive Securities (including principal, premium, if any, and
interest) held by a Holder of at least $1,000,000 aggregate principal amount of
Securities represented by Definitive Securities will be made by wire transfer to
a U.S. dollar account maintained by the payee with a bank in the United States
if such Holder elects payment by wire transfer by giving written notice to the
Trustee or the Paying Agent to such effect designating such account no later
than 15 days immediately preceding the relevant due date for payment (or such
other date as the Trustee may accept in its discretion).
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3. Paying Agent and Registrar
Initially, National City Bank (the "Trustee"), will act as
Trustee, Paying Agent and Registrar. The Company may appoint and change any
Paying Agent, Registrar or co-registrar without notice to any Securityholder.
The Company or any of its Subsidiaries may act as Paying Agent, Registrar or
co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as
of March 8, 2001 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), among the Company, the
Subsidiary Guarantors and the Trustee. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on
the date of the Indenture (the "Act"). Capitalized terms used herein and not
defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the Act for a statement of those terms.
The Securities are general unsecured senior obligations of the
Company limited to $200.0 million aggregate principal amount (subject to Section
2.9 of the Indenture). The Initial Securities, Private Exchange Securities and
the Exchange Securities will be treated as a single class of securities under
the Indenture. The Indenture imposes certain limitations on, among other things:
the Incurrence of Liens by the Company or its Subsidiaries, Sale and Lease-Back
Transactions by the Company or its Subsidiaries, consolidation, mergers and sale
of assets of the Company, and transactions with Affiliates
To guarantee the due and punctual payment of the principal,
premium, if any, and interest on the Securities and all other amounts payable by
the Company under the Indenture and the Securities when and as the same shall be
due and payable, whether at maturity, by acceleration or otherwise, according to
the terms of the Securities and the Indenture, the Subsidiary Guarantors have
unconditionally guaranteed (and future Subsidiary Guarantors, together with the
Subsidiary Guarantors, will unconditionally guarantee), jointly and severally,
such obligations on a senior basis pursuant to the terms of the Indenture.
5. Redemption
The Securities will be redeemable, at the option of the
Company, in whole at any time or in part from time to time, on at least 30 days
but not more than 60 days' prior notice mailed to the registered address of each
Holder of Securities to be so redeemed, at a redemption price equal to the
greater of (i) 100% of their principal amount plus accrued but unpaid interest
to the date of redemption or (ii) the sum of (a) the present values of the
remaining scheduled payments of principal and interest thereon from the date of
redemption to the date of maturity (except for currently accrued but unpaid
interest) discounted to the date of redemption, on a semiannual basis (assuming
a 360-day year consisting of twelve 30-day months), at the Treasury Rate (as
defined below), plus 50 basis points, plus (b) accrued but unpaid interest to
the date of redemption.
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For purposes of determining the optional redemption price, the
following definitions are applicable:
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Securities to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Securities.
"Comparable Treasury Price" means, with respect to any
redemption date, the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
on the third business day preceding such redemption date, (i) as set forth in
the daily statistical release (or any successor release) published by the
Federal Reserve Bank of New York or published on the website of the Federal
Reserve Bank of New York at http://www.ny.frb.org and designated "Composite 3:30
p.m. Quotations for the U.S. Government Securities" or (ii) if such release (or
any successor release) is not published or does not contain such prices on such
business day, the average of the Reference Treasury Dealer Quotations for such
redemption date.
"Independent Investment Banker" means the Reference Treasury
Dealer appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means JPMorgan, a division of
Chase Securities Inc. ("JPMorgan"), and its successors; provided, however, that
if JPMorgan shall cease to be a primary U.S. Government Securities dealer in New
York City (a "Primary Treasury Dealer"), the Company shall substitute therefor
another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
on the third business day preceding such redemption date.
"Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
In the case of any partial redemption, selection of the
Securities for redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Securities are listed or, if the Securities are not listed, then on a pro rata
basis, by lot or by such other method as the Trustee in its sole discretion
shall deem to be fair and appropriate, although no Securities of $1,000 in
original principal amount or less will be redeemed in part. If any Security is
to be redeemed in part only, the notice of redemption relating to such Security
shall state the portion of the principal amount thereof to be redeemed. A new
Security in principal amount equal to the unredeemed portion thereof will be
issued in the name of the Holder thereof upon cancellation of the original
Security. On and after
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the redemption date, interest will cease to accrue on Securities or portions
thereof called for redemption as long as the Company has deposited with the
Paying Agent funds in satisfaction of the applicable redemption price pursuant
to the Indenture.
6. Repurchase Provisions
Upon the occurrence of a Change of Control Triggering Event,
any Holder of Securities will have the right to cause the Company to offer to
repurchase all or any part of the Securities of such Holder at a purchase price
in cash equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the date of repurchase (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date) as provided in, and subject to the terms of, the
Indenture.
7. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of $1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange (i) any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
for a period beginning 15 days before the mailing of a notice of Securities to
be redeemed and ending on the date of such mailing or (ii) any Securities for a
period beginning 15 days before an interest payment date and ending on such
interest payment date.
8. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
9. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
10. Defeasance
Subject to certain conditions set forth in the Indenture, the
Company at any time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee money or
U.S. Government Securities for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
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11. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the then outstanding
Securities and (ii) any default (other than with respect to nonpayment or in
respect of a provision that cannot be amended without the written consent of
each Securityholder affected) or noncompliance with any provision may be waived
with the written consent of the Holders of a majority in principal amount of the
then outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article IV of the
Indenture, or to provide for uncertificated Securities in addition to or in
place of certificated Securities, or to add guarantees with respect to the
Securities, or to secure the Securities, or to add additional covenants of the
Company or its Subsidiaries, or surrender rights and powers conferred on the
Company or its Subsidiaries, or to comply with any request of the SEC in
connection with qualifying the Indenture under the Act, or to make any change
that does not adversely affect the rights of any Securityholder, or to provide
for the issuance of Exchange Securities.
12. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest when due on the Securities; (ii) default in
payment of principal or premium, if any, on the Securities at Stated Maturity,
upon required repurchase or upon optional redemption pursuant to paragraph 5 of
the Securities, upon declaration or otherwise; (iii) the failure by the Company
or any Subsidiary Guarantor to comply with its obligations under Article IV or
Section 10.2 of the Indenture; (iv) failure by the Company to comply for 30 days
after notice with any of its obligations under the covenants described under
Sections 3.3 through 3.8 inclusive and Section 3.12 of the Indenture (in each
case, other than a failure to purchase Securities when required pursuant to
Section 3.6, which failure shall constitute an Event of Default under clause
(ii) above); (v) the failure by the Company to comply for 60 days after written
notice with its other agreements contained in the Indenture or under the
Securities (other than those referred to in (i), (ii), (iii) or (iv) above);
(vi) default under any mortgage, indenture or instrument under which there may
be issued or by which there may be outstanding, or by which there may be secured
or evidenced any Debt for money borrowed by the Company or any of its
Subsidiaries (other than Non-Recourse Debt of a Non-Recourse Subsidiary),
whether such Debt now exists, or is created after the date of the Indenture,
which default (a) is caused by a failure to pay principal of, or interest or
premium, if any, on such Debt prior to the expiration of the grace period
provided in such Debt ("Payment Default") or (b) results in the acceleration of
such Debt prior to its maturity (the "cross acceleration provision") and, in
each case, the principal amount of any such Debt, together with the principal
amount of any other such Debt under which there has been a Payment Default or
the maturity of which has been so accelerated, aggregates $20.0 million or more
or its foreign currency equivalent at the time and such acceleration shall not
have been rescinded or annulled within 10 days after written notice of such
acceleration has been received by the Company or such Subsidiary; (vii) certain
events of bankruptcy, insolvency or reorganization of the Company (the
"bankruptcy provisions"); or (viii) entry in a court of competent jurisdiction
of a final judgment for the payment of $20.0 million or more rendered against
the Company or any Subsidiary, which judgment is not fully covered by insurance
or not discharged or stayed within
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90 days after (A) the date on which the right to appeal thereof has expired if
no such appeal has commenced, or (B) the date on which all rights to appeal have
been extinguished (the "judgment default provision"). However, a default under
clauses (iv) and (v) will not constitute an Event of Default until the Trustee
or the Holders of at least 25% in principal amount of the outstanding Securities
notify the Company of the default and the Company does not cure such default
within the time specified in clauses (iv) and (v) hereof after receipt of such
notice.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Securities may declare
all the Securities by notice to the Company to be due and payable immediately.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable indemnity
or security. Subject to certain limitations, Holders of a majority in principal
amount of the Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any continuing
Default or Event of Default (except a Default or Event of Default in payment of
principal or interest) if it determines that withholding notice is in their
interest.
13. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
14. No Recourse Against Others
An incorporator, director, officer, employee, affiliate or
stockholder of each of the Company, or any Subsidiary Guarantor, solely by
reason of this status, shall not have any liability for any obligations of the
Company under the Securities, the Indenture or any Subsidiary Guarantees or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
15. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent acting on its behalf) manually signs
the certificate of authentication on the other side of this Security.
16. Abbreviations
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entirety), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to
Minors Act).
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17. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
18. Governing Law
This Security shall be governed by, and construed in
accordance with, the laws of the State of New York.
The Company will furnish to any Securityholder upon written
request and without charge to the Securityholder a copy of the Indenture which
has in it the text of this Security in larger type. Requests may be made to:
Manor Care, Inc.
333 North Summit Street
Toledo, Ohio 43604
Attention: Mr. Geoffrey Meyers, Chief Financial Officer
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
_____________________________________________________
(Print or type assignee's name, address and zip code)
____________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ____________ agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date: _______________ Your Signature __________________________________________
Signature Guarantee: __________________________________________________________
(Signature must be guaranteed)
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
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[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security
have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Security authorized signatory
Date of Principal Amount of Principal Amount of following such of Trustee or
Exchange this Global Security this Global Security decrease or increase Securities Custodian
- ------- ---------------------- ---------------------- --------------------- --------------------
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have only part of this Security
purchased by the Company pursuant to or Section 3.6 of the Indenture, state the
amount in principal amount (must be integral multiple of $1,000): $
Date: _______________ Your Signature: _____________________________________
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee: ___________________________________________________________
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
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EXHIBIT C
FORM OF INDENTURE SUPPLEMENT TO ADD SUBSIDIARY GUARANTORS
This Supplemental Indenture, dated as of [__________] (this
"Supplemental Indenture" or "Guarantee"), among [name of future Subsidiary
Guarantor] (the "Guarantor"), Manor Care, Inc. (together with its successors and
assigns, the "Company"), each other then existing Subsidiary Guarantor under the
Indenture referred to below, and National City Bank, as Trustee under the
Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company, the Subsidiary Guarantors and the
Trustee have heretofore executed and delivered an Indenture, dated as of March
8, 2001 (as amended, supplemented, waived or otherwise modified, the
"Indenture"), providing for the issuance of an aggregate principal amount of
$200.0 million of 8% Senior Notes due 2008 of the Company (the "Securities");
WHEREAS, Section 3.8 of the Indenture provides that the
Company is required to cause each Subsidiary (other than a Subsidiary that does
not guarantee obligations under the 2006 Notes) created or acquired by the
Company or one or more of its Subsidiaries or any Subsidiary that Guarantees the
payment of Debt of the Company to execute and deliver to the Trustee a
Supplemental Indenture pursuant to which such Subsidiary will unconditionally
Guarantee, on a joint and several basis with the other Subsidiary Guarantors,
the full and prompt payment of the principal of, premium, if any, and interest
on the Securities on a senior basis; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee
and the Company are authorized to execute and deliver this Supplemental
Indenture to amend the Indenture, without the consent of any Securityholder;
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the Guarantor, the Company, the other Subsidiary Guarantors and
the Trustee mutually covenant and agree for the equal and ratable benefit of the
Holders of the Securities as follows:
ARTICLE I
Definitions
SECTION 1.1. Defined Terms. As used in this Supplemental
Indenture, terms defined in the Indenture or in the preamble or recital hereto
are used herein as therein defined, except that the term "Holders" in this
Guarantee shall refer to the term "Holders" as defined in the Indenture and the
Trustee acting on behalf or for the benefit of such holders. The words "herein,"
"hereof" and "hereby" and other words of similar import used in this
Supplemental Indenture refer to this Supplemental Indenture as a whole and not
to any particular section hereof.
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ARTICLE II
Agreement to be Bound; Guarantee
SECTION 2.1. Agreement to be Bound. The Guarantor hereby
becomes a party to the Indenture as a Subsidiary Guarantor and as such will have
all of the rights and be subject to all of the obligations and agreements of a
Subsidiary Guarantor under the Indenture. The Guarantor agrees to be bound by
all of the provisions of the Indenture applicable to a Subsidiary Guarantor and
to perform all of the obligations and agreements of a Subsidiary Guarantor under
the Indenture.
SECTION 2.2. Guarantee. The Guarantor fully, unconditionally
and irrevocably Guarantees to each Holder of the Securities and the Trustee the
Obligations pursuant to Article X of the Indenture on a senior basis.
ARTICLE III
Miscellaneous
SECTION 3.1. Notices. All notices and other communications to
the Guarantor shall be given as provided in the Indenture to the Guarantor, at
its address set forth below, with a copy to the Company as provided in the
Indenture for notices to the Company.
SECTION 3.2. Parties. Nothing expressed or mentioned herein is
intended or shall be construed to give any Person, firm or corporation, other
than the Holders and the Trustee, any legal or equitable right, remedy or claim
under or in respect of this Supplemental Indenture or the Indenture or any
provision herein or therein contained.
SECTION 3.3. Governing Law. This Supplemental Indenture shall
be governed by the laws of the State of New York.
SECTION 3.4. Severability Clause. In case any provision in
this Supplemental Indenture 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 and such provision shall be ineffective
only to the extent of such invalidity, illegality or unenforceability.
SECTION 3.5. Ratification of Indenture; Supplemental
Indentures Part of Indenture. Except as expressly amended hereby, the Indenture
is in all respects ratified and confirmed and all the terms, conditions and
provisions thereof shall remain in full force and effect. This Supplemental
Indenture shall form a part of the Indenture for all purposes, and every Holder
of Securities heretofore or hereafter authenticated and delivered shall be bound
hereby. The Trustee makes no representation or warranty as to the validity or
sufficiency of this Supplemental Indenture.
SECTION 3.6. Counterparts. The parties hereto may sign one or
more copies of this Supplemental Indenture in counterparts, all of which
together shall constitute one and the same agreement.
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SECTION 3.7. Headings. The headings of the Articles and the
sections in this Guarantee are for convenience of reference only and shall not
be deemed to alter or affect the meaning or interpretation of any provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR],
as a Subsidiary Guarantor
By:_________________________________
Name:
Title:
NATIONAL CITY BANK, as Trustee
By:_________________________________
Name:
Title:
MANOR CARE, INC.
By:_________________________________
Name:
Title:
[SUBSIDIARY GUARANTORS]
By:_________________________________
Name:
Title:
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