Exhibit 4.1
INDENTURE, dated as of June 1, 1998 among InSight Health
Services Corp., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), the Subsidiary Guarantors (as
hereinafter defined) and State Street Bank and Trust Company, N.A., a national
banking association duly organized and existing under the laws of the United
States of America, as trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of and issue of
9 5/8% Senior Subordinated Notes Due 2008 (herein called the "Initial Notes")
and 9 5/8% Series B Senior Subordinated Notes Due 2008 (the "Exchange Notes"
and, together with the Initial Notes, the "Notes") of substantially the tenor
and amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
Each of the Subsidiary Guarantors has duly authorized its
guarantee of the Notes, and to provide therefor each of them has duly authorized
the execution and delivery of this Indenture.
Upon the issuance of the Exchange Notes, if any, or the
effectiveness of the Shelf Registration Statement (as defined herein), this
Indenture will be subject to the provisions of the Trust Indenture Act of 1939,
as amended, that are required to be part of this Indenture and shall, to the
extent applicable, be governed by such provisions.
All things necessary have been done to make the Notes, when
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company and to make this
Indenture a valid agreement of the Company and the Subsidiary Guarantors, each
in accordance with their respective terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
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For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under
the Trust Indenture Act;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Two, Eight, Ten and
Twelve are defined in that Article.
"Acquired Indebtedness" means Indebtedness of a Person (a)
existing at the time such Person is merged with or into the Company or becomes a
Subsidiary or (b) assumed in connection with the acquisition of assets from such
Person.
"Act", when used with respect to any Holder, has the meaning
specified in Section 105.
"Additional Notes" has the meaning specified in Section 312.
"Affiliate" means, with respect to any specified person, (a)
any other person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified person or (b) any other
person that owns, directly or indirectly, 5% or more of such specified person's
Capital Stock or any executive officer or director of any such specified person
or other person or, with respect to any natural person, any person having a
relationship with such person by blood, marriage or adoption not more remote
than first cousin. 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.
"Agent Bank" means NationsBank, N.A. and its successors under
the Amended
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Credit Agreement, in its capacity as agent.
"Amended Credit Agreement" means the Credit Agreement, dated
as of October 14, 1997, as amended as of November 17, 1997, December 19, 1997
and March 23, 1998 and to be amended as of the Closing Date, among the Company,
the lenders named therein and NationsBank, N.A., as agent, including any related
notes, guarantees, collateral documents, instruments and agreements executed in
connection therewith, as such facility may be amended, restated, supplemented,
refinanced, extended or otherwise modified from time to time.
"Asset Sale" means (i) the sale, lease, conveyance or other
disposition of any assets (including, without limitation, by way of merger,
consolidation or similar arrangement) (collectively, a "transfer") by the
Company or any Restricted Subsidiary other than in the ordinary course of
business and (ii) the issue or sale by the Company or any of its Restricted
Subsidiaries of Shares of Capital Stock of any of the Company's Restricted
Subsidiaries (which shall be deemed to include the sale, grant or conveyance of
any interest in the income, profits or proceeds therefrom), in the case of
either clause (i) or (ii), whether in a single transaction or a series of
related transactions (x) that have a fair market value in excess of $1 million
or (y) for Net Cash Proceeds in excess of $1 million. For the purposes of this
definition, the term "Asset Sale" does not include (a) any transfer of
properties or assets (i) that is governed by Sections 801 and 1011, (ii) between
or among the Company and its Restricted Subsidiaries pursuant to transactions
that do not violate any other provision of the Indenture or (iii) representing
obsolete or permanently retired equipment and facilities or (b) the sale or
exchange of equipment in connection with the purchase or other acquisition of
other equipment, in each case used in the business of the Company or its
Restricted Subsidiaries as in existence on the Closing Date or any business
determined by the Board in its good faith judgment to be reasonably related
thereto.
"Banks" means the banks and other financial institutions that
from time to time are lenders under the Amended Credit Agreement.
"Board" means the Company's Board of Directors.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York are
authorized or obligated by law or executive order to close.
"Capital Stock" of any Person means any and all shares,
interests, partnership interests, participations, rights in or other equivalents
(however designated) of such Person's equity interest (however designated),
whether now outstanding or issued after the Closing Date.
"Capitalized Lease Obligation" means, with respect to any
Person, an obligation
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incurred or assumed under or in connection with any capital lease of real or
personal property that, in accordance with GAAP, has been recorded as a
capitalized lease.
"Cash Equivalent" means (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities not more than six months
from the date of acquisition, (b) U.S. dollar denominated (or foreign currency
fully hedged) time deposits, certificates of deposit, Eurodollar time deposits
or Eurodollar certificates of deposit of (i) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500 million or (ii)
any bank whose short-term commercial paper rating from S&P is at least A-1 or
the equivalent thereof or from Moody's is at least P-1 or the equivalent thereof
(any such bank being an "Approved Lender"), in each case with maturities of not
more than six months from the date of acquisition, and (c) commercial paper
issued by any Approved Lender (or by the parent company thereof) and maturing
within six months of the date of acquisition.
"Change of Control" means the occurrence of any of the
following events:
(a) any "person" or "group" (as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act) (other than Permitted
Holders) is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of more than 50% of
the voting power of all classes of Voting Stock of the Company;
provided, however, that upon any purchase and/or subsequent conversion
by any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act) (other than Permitted Holders), which at
the time of such purchase and/or subsequent conversion neither owns nor
is acquiring any shares of Common Stock of the Company, of any of the
issued and outstanding shares of Series B Preferred Stock or Series C
Preferred Stock, the number of shares of Common Stock which shall be
deemed to be outstanding for the purpose of computing the percentage of
the voting power of all classes of Voting Stock of the Company acquired
by such "person" or "group" shall be determined on a basis that gives
effect to the conversion of both (A) the shares of Series B Preferred
Stock or Series C Preferred Stock, as applicable, that were purchased
by such "person" or "group" and (B) the shares of Series B Preferred
Stock or Series C Preferred Stock, as applicable,
that continue to be owned by Permitted Holders after such purchase
and/or conversion by such "person" or "group" (without requiring actual
conversion of any of such shares of Series B Preferred Stock or Series
C Preferred Stock by the holders thereof);
(b) the Company, either individually or in conjunction with
one or more Subsidiaries, sells, assigns, conveys, transfers, leases
or otherwise disposes of, or the Subsidiaries sell, assign, convey,
transfer, lease or otherwise dispose of, all or substantially all of
the properties of the Company and the Subsidiaries, taken as a whole
(either in one transaction or a series of related transactions),
including Capital Stock of
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the Subsidiaries, to any person (other than the Company or a
Restricted Subsidiary);
(c) during any consecutive two-year period, individuals who
at the beginning of such period constituted the Board (together with
any new directors (i) whose election by such Board or whose nomination
for election by the stockholders of the Company was approved by a vote
of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved or (ii) elected or
appointed by any of the Permitted Holders) cease for any reason to
constitute a majority of the Board then in office; or
(d) the Company is liquidated or dissolved or adopts a plan
of liquidation or dissolution, other than in a transaction that
complies with the provisions described under Section 801.
"Closing Date" means the date on which the Initial Notes are
originally issued under this Indenture.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participations and other equivalents (however designated,
whether voting or non-voting) of such Person's Common Stock, whether now
outstanding or issued after the date of this Indenture, and includes, without
limitation, all series and classes of such Common Stock.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman, its President, any
Vice President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Consolidated EBITDA" means, for any period, the sum of,
without duplication, Consolidated Net Income for such period, plus (or, in the
case of clause (d) below, plus or minus) the following items to the extent
included in computing Consolidated Net Income for such period: (a) Fixed Charges
for such period, plus (b) the provision for federal, state, local and foreign
income taxes of the Company and its Restricted Subsidiaries for such period,
plus (c) the aggregate depreciation and amortization expense of the Company and
its Restricted Subsidiaries for such period, plus (d) any other non-cash charges
for such period, and minus non-cash credits for such period, other than non-cash
charges or credits resulting from changes in prepaid assets
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or accrued liabilities in the ordinary course of business; provided that fixed
charges, income tax expense, depreciation and amortization expense and non-cash
charges and credits of a Restricted Subsidiary will be included in Consolidated
EBITDA only to the extent (and in the same proportion) that the net income of
such Subsidiary was included in calculating Consolidated Net Income for such
period.
"Consolidated Net Income" means, for any period, the net
income (or net loss) of the Company and its Restricted Subsidiaries for such
period as determined on a consolidated basis in accordance with GAAP, adjusted
to the extent included in calculating such net income or loss by excluding (a)
any net after-tax extraordinary gains or losses (less all fees and expenses
relating thereto), (b) any net after-tax gains or losses (less all fees and
expenses relating thereto) attributable to Asset Sales, (c) the portion of net
income (or loss) of any Person (other than the Company or a Restricted
Subsidiary), including Unrestricted Subsidiaries, in which the Company or any
Restricted Subsidiary has an ownership interest, except to the extent of the
amount of dividends or other distributions actually paid to the Company or any
Restricted Subsidiary in cash during such period, (d) the net income (or loss)
of any Person combined with the Company or any Restricted Subsidiary on a
"pooling of interests" basis attributable to any period prior to the date of
combination and (e) the net income (but not the net loss) of any Restricted
Subsidiary to the extent that the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary is at the date of determination
restricted, directly or indirectly, except to the extent that such net income is
actually paid to the Company or a Restricted Subsidiary thereof by loans,
advances, intercompany transfers, principal repayments or otherwise; provided
that, if any Restricted Subsidiary is not a Wholly Owned Restricted Subsidiary,
Consolidated Net Income will be reduced (to the extent not otherwise reduced in
accordance with GAAP) by an amount equal to (A) the amount of the Consolidated
Net Income otherwise attributable to such Restricted Subsidiary multiplied by
(B) the quotient of (1) the number of shares of outstanding Common Stock of such
Restricted Subsidiary not owned on the last day of such period by the Company or
any of its Restricted Subsidiaries divided by (2) the total number of shares of
outstanding Common Stock of such Restricted Subsidiary on the last day of such
period.
"Consolidated Tangible Assets" means, as of the date of
determination, the total assets, less goodwill and other intangibles, shown on
the balance sheet of the Company and its Restricted Subsidiaries as of the most
recent date for which such a balance sheet is available, determined on a
consolidated basis in accordance with GAAP.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee, at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of this
Indenture is located at 61 Broadway, 15th Floor, New York, New York 10006,
except that with respect to presentation of Notes for payment or for
registration of transfer or exchange, such term shall mean the office or agency
of the Trustee at which, at any particular time, its corporate trust and agency
business shall be conducted.
"corporation" includes corporations, associations, companies
and business trusts.
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"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 309.
"Depositary" means The Depository Trust Company, its nominees
and successors.
"Designated Senior Indebtedness" means (i) so long as the
Senior Bank Debt is outstanding, the Senior Bank Debt and (ii) thereafter, any
other Senior Indebtedness permitted under the Indenture the principal amount of
which is $25 million or more and that has been specifically designated by the
Company, in the instrument creating or evidencing such Senior Indebtedness or in
an officers' certificate delivered to the Trustee, as "Designated Senior
Indebtedness."
"Disinterested Director" means, with respect to any
transaction or series of transactions in respect of which the Board is required
to deliver a resolution of the Board, to make a finding or otherwise take action
under the Indenture, a member of the Board who does not have any material direct
or indirect financial interest in or with respect to such transaction or series
of transactions.
"Disqualified Stock" means any class or series of Capital
Stock that, either by its terms, by the terms of any security into which it is
convertible or exchangeable or by contract or otherwise (i) is or upon the
happening of an event or passage of time would be, required to be redeemed prior
to the final Stated Maturity of the Notes, (ii) is redeemable at the option of
the holder thereof, at any time prior to such final Stated Maturity or (iii) at
the option of the holder thereof is convertible into or exchangeable for debt
securities at any time prior to such final Stated Maturity; provided that any
Capital Stock that would not constitute Disqualified Stock but for provisions
therein giving holders thereof the right to cause the issuer thereof to
repurchase or redeem such Capital Stock upon the occurrence of an "asset sale"
or "change of control" occurring prior to the Stated Maturity of the Notes will
not constitute Disqualified Stock if the "asset sale" or "change of control"
provisions applicable to such Capital Stock are no more favorable to the holders
of such Capital Stock than Sections 1015 and 1016 hereof, and such Capital Stock
specifically provides that the issuer will not repurchase or redeem any such
stock pursuant to such provision prior to the Company's repurchase of such Notes
as are required to be repurchased pursuant to the provisions contained in
Sections 1015 and 1016 hereof.
"Equity Offering" means a public or private offering of
Capital Stock (other than Disqualified Stock) of the Company.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities and Exchange Act of 1934,
as amended.
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"Exchange Notes" has the meaning stated in the first recital
of this Indenture and refers to any Exchange Notes containing terms
substantially identical to the Initial Notes (except that such Exchange Notes
shall not contain terms with respect to the interest rate step-up provision and
transfer restrictions) that are issued and exchanged for the Initial Notes
pursuant to the Registration Rights Agreement and this Indenture.
"Exchange Offer" means the exchange offer that may be effected
pursuant to the Registration Rights Agreement.
"Exchange Offer Registration Statement" means the Exchange
Offer Registration Statement as defined in the Registration Rights Agreement.
"Existing Indebtedness" means the Indebtedness of the Company
and its Restricted Subsidiaries (other than Indebtedness under the Amended
Credit Agreement) outstanding on the Closing Date and listed on a schedule to
this Indenture, until such amounts are repaid.
"Facility" means any premises, together with the diagnostic
imaging and treatment equipment installed therein, used by the Company in the
conduct of the business of providing diagnostic imaging and information,
treatment and related management services.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11
of the United States Code, as amended from time to time.
"Fixed Charges" means, for any period, without duplication,
the sum of (a) the amount that, in conformity with GAAP, would be set forth
opposite the caption "interest expense" (or any like caption) on a consolidated
statement of operations of the Company and its Restricted Subsidiaries for such
period, including, without limitation, (i) amortization of debt discount, (ii)
the net cost of interest rate contracts (including amortization of discounts),
(iii) the interest portion of any deferred payment obligation, (iv) amortization
of debt issuance costs, and (v) the interest component of Capitalized Lease
Obligations, plus (b) cash dividends paid on Preferred Stock and Disqualified
Stock by the Company and any Restricted Subsidiary (to any Person other than the
Company and its Restricted Subsidiaries), computed on a tax effected basis, plus
(c) all interest on any Indebtedness of any Person guaranteed by the Company or
any of its Restricted Subsidiaries or secured by a lien on the assets of the
Company or any of its Restricted Subsidiaries; provided, however, that Fixed
Charges will not include (i) any gain or loss from extinguishment of debt,
including the write-off of debt issuance costs, and (ii) the fixed charges of a
Restricted Subsidiary to the extent (and in the same proportion) that the net
income of such Subsidiary was excluded in calculating Consolidated Net Income
pursuant to clause (e) of the definition thereof for such period.
"Fixed Charge Coverage Ratio" means, for any period, the ratio
of Consolidated
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EBITDA for such period to Fixed Charges for such period.
"Foreign Subsidiary" means a Restricted Subsidiary that is
incorporated in a jurisdiction other than the United States or a state thereof
or the District of Columbia and that has no material operations or assets in the
United States.
"Generally Accepted Accounting Principles" or "GAAP" means
generally accepted accounting principles in the United States, consistently
applied, that are in effect on the Closing Date.
"guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person entered into in the ordinary course of business under
(i) interest rate swap agreements, interest rate cap agreements and interest
rate collar agreements and other similar financial agreements or arrangements
designed to protect such Person against, or manage the exposure of such Person
to, fluctuations in interest rates, and (ii) forward exchange agreements,
currency swap, currency option and other similar financial agreements or
arrangements designed to protect such Person against, or manage the exposure of
such Person to, fluctuations in foreign currency exchange rates.
"Holder" means the Person in whose name a Note is, at the time
of determination, registered on the Registrar's books.
"Indebtedness" means (without duplication), with respect to
any Person, whether recourse is to all or a portion of the assets of such Person
and whether or not contingent, (a) every obligation of such Person for money
borrowed, (b) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, (c) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person, (d) every obligation of such
Person issued or assumed as the deferred purchase price of property or services,
(e) the attributable value of every Capitalized Lease Obligation of such Person,
(f) all Disqualified Stock of such Person valued at its maximum fixed repurchase
price, plus accrued and unpaid dividends, (g) all obligations of such Person
under or in respect of Hedging Obligations, and (h) every obligation of the type
referred to in clauses (a) through (g) of another Person and all dividends of
another Person the payment of which, in either case, such Person has guaranteed.
For purposes of this definition, the "maximum fixed repurchase price" of any
Disqualified Stock that does not have a fixed repurchase price will be
calculated in accordance with the terms of such Disqualified Stock as if such
Disqualified Stock were purchased on any date on which Indebtedness is required
to be determined pursuant to this Indenture, and if such price is based upon, or
measured by, the fair
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market value of such Disqualified Stock, such fair market value will be
determined in good faith by the board of directors of the issuer of such
Disqualified Stock. Notwithstanding the foregoing, trade accounts payable and
accrued liabilities arising in the ordinary course of business and any liability
for federal, state or local taxes or other taxes owed by such Person will not be
considered Indebtedness for purposes of this definition.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Initial Notes" has the meaning stated in the first recital of
this Indenture.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Notes.
"Investment" in any Person means, (i) directly or indirectly,
any advance, loan or other extension of credit (including, without limitation,
by way of guarantee or similar arrangement) or capital contribution to such
Person, the purchase or other acquisition of any stock, bonds, notes, debentures
or other securities issued by such Person, the acquisition (by purchase or
otherwise) of all or substantially all of the business or assets of such Person,
or the making of any investment in such Person, (ii) the designation of any
Restricted Subsidiary as an Unrestricted Subsidiary and (iii) the fair market
value of the Capital Stock (or any other Investment), held by the Company or any
of its Restricted Subsidiaries, of (or in) any Person that has ceased to be a
Restricted Subsidiary. Investments exclude extensions of trade credit on
commercially reasonable terms in accordance with normal trade practices.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation, assignment for
security, claim, or preference or priority or other encumbrance upon, or with
respect to, any property of any kind, real or personal, movable or immovable,
now owned or hereafter acquired. A Person will be deemed to own subject to a
Lien any property that such Person has acquired or holds subject to the interest
of a vendor or lessor under any conditional sale agreement, capital lease or
other title retention agreement.
"Maturity", when used with respect to any Note, means the date
on which the principal of such Note or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption or otherwise.
"Moody's" means Moody's Investors Service, Inc. and its
successors.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds thereof in the form of cash or Cash Equivalents, including payments in
respect of deferred payment
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obligations when received in the form of, or stock or other assets when disposed
for, cash or Cash Equivalents (except to the extent that such obligations are
financed or sold with recourse to the Company or any Restricted Subsidiary), net
of (a) brokerage commissions and other fees and expenses (including fees and
expenses of legal counsel and investment banks) related to such Asset Sale, (b)
provisions for all taxes payable as a result of such Asset Sale, (c) payments
made to retire Indebtedness where such Indebtedness is secured by the assets
that are the subject of such Asset Sale, (d) amounts required to be paid to any
Person (other than the Company or any Restricted Subsidiary) owning a beneficial
interest in the assets that are subject to the Asset Sale and (e) appropriate
amounts to be provided by the Company or any Restricted Subsidiary, as the case
may be, as a reserve required in accordance with GAAP against any liabilities
associated with such Asset Sale and retained by the seller after such Asset
Sale, including pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale.
"Non-payment Event of Default" means any event (other than a
Payment Event of Default) the occurrence of which entitles one or more Persons
to accelerate the maturity of any Designated Senior Indebtedness.
"Non-Recourse Indebtedness" means Indebtedness of a Permitted
Joint Venture (i) as to which neither the Company nor any of its Restricted
Subsidiaries (other than such Permitted Joint Venture), (a) provides any
guarantee or credit support of any kind (including any undertaking, guarantee,
indemnity, agreement or instrument that would constitute Indebtedness) or (b) is
directly or indirectly liable (as a guarantor or otherwise), and (ii) the
obligees of which will have recourse for repayment of the principal of and
interest on such Indebtedness and any fees, indemnities, expense reimbursements
or other amount of whatsoever nature accrued or payable in connection with such
Indebtedness solely against the assets of such Permitted Joint Venture and not
against any of the assets of the Company or its Restricted Subsidiaries (other
than such Permitted Joint Venture).
"Non-U.S. Person" means a Person that is not a "U.S. Person"
as defined in Regulation S.
"Notes" has the meaning stated in the first recital of this
Indenture and more particularly means any Notes authenticated and delivered
under this Indenture. For all purposes of this Indenture, the term "Notes" shall
include any Exchange Notes to be issued and exchanged for any Notes pursuant to
the Registration Rights Agreement and this Indenture and, for purposes of this
Indenture, all Initial Notes and Exchange Notes shall vote together as one
series of Notes under this Indenture.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
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"Officers' Certificate" means a certificate signed by the
Chairman, the Chief Executive Officer, President or any Vice President, and by
the Chief Financial Officer, Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of the Company, or any Subsidiary Guarantor, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, including an employee of the Company, and who
shall be acceptable to the Trustee.
"Outstanding", when used with respect to Notes, means, as of
the date of determination, all Notes theretofore authenticated and delivered
under this Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered
to the Trustee for cancellation; and
(b) Notes, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Notes;
provided that, if such Notes are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(c) Notes, except to the extent provided in Sections 1202
and 1203, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article Twelve; and
(d) Notes which have been paid pursuant to Section 308 or
in exchange for or in lieu of which other Notes have been authenticated
and delivered pursuant to this Indenture, other than any such Notes in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a bona fide purchaser in
whose hands the Notes are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Notes have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in making
such calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which the Trustee knows to be
so owned shall be so disregarded. Notes so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Notes and that the
13
pledgee is not the Company or any other obligor upon the Notes or any Affiliate
of the Company or such other obligor.
"Pari Passu Indebtedness" means (a) with respect to the Notes,
Indebtedness that ranks pari passu in right of payment to the Notes and (b) with
respect to any Subsidiary Guarantee, Indebtedness that ranks pari passu in right
of payment to such Subsidiary Guarantee.
"Paying Agent" means State Street Bank and Trust Company,
N.A., and any successor (including the Company acting as Paying Agent)
authorized by the Company to pay the principal of (and premium, if any) or
interest on any Notes on behalf of the Company.
"Payment Default" has the meaning specified in Section 501.
"Payment Event of Default" has the meaning specified in
Section 1403.
"Permitted Business" means the Business conducted by the
Company, its Restricted Subsidiaries and Permitted Joint Ventures as of the
Closing Date and any and all diagnostic imaging and information businesses that
in the good faith judgment of the Board are reasonably related thereto.
"Permitted Holders" means (i) Carlyle Partners II, L.P., a
Delaware limited partnership, Carlyle Partners III, L.P., a Delaware limited
partnership, Carlyle International Partners II, L.P., a Cayman Islands exempted
limited partnership, Carlyle International Partners III, L.P., a Cayman Islands
exempted limited partnership, C/S International Partners, a Cayman Islands
general partnership, State Board of Administration of Florida, a separate
account maintained pursuant to an Investment Management Agreement dated as of
September 6, 1996 among the State Board of Administration of Florida, Carlyle
Investment Group, L.P. and Carlyle Investment Management, L.L.C., Carlyle
Investment Group, L.P., a Delaware limited partnership, Carlyle-InSight
International Partners, L.P., a Cayman Islands exempted limited partnership, and
Carlyle-InSight Partners, L.P., a Delaware limited partnership, and their
Affiliates (collectively, "Carlyle Affiliates") and (ii) General Electric
Company, a New York corporation, and its Affiliates (collectively, "GE
Affiliates").
"Permitted Investments" means any of the following:
(a) Investments in (i) securities with a maturity of
one year or less issued or directly and fully guaranteed or insured by
the United States or any agency or instrumentality thereof (provided
that the full faith and credit of the United States is pledged in
support thereof); (ii) certificates of deposit, Euro-dollar time
deposits or acceptances with a maturity of one year or less of any
financial institution that is a member of the Federal Reserve System
having combined capital and surplus of not less than $500,000,000;
(iii) any shares of money market mutual or similar funds having assets
in excess of $500,000,000; (iv) repurchase obligations with a term not
exceeding
14
seven days for underlying securities of the types described
in clauses (i) and (ii) above entered into with any financial
institution meeting the qualifications specified in clause (ii) above;
and (v) commercial paper with a maturity of one year or less issued by
a corporation that is not an Affiliate of the Company and is organized
under the laws of any state of the United States or the District of
Columbia and having a rating (A) from Moody's of at least P-1 or (B)
from S&P of at least A-1;
(b) Investments by the Company or any Wholly Owned
Restricted Subsidiary in another Person, if as a result of such
Investment (i) such other Person becomes a Restricted Subsidiary that
is a Subsidiary Guarantor or (ii) such other Person is merged or
consolidated with or into, or transfers or conveys all or substantially
all of its assets to, the Company or a Restricted Subsidiary that is a
Subsidiary Guarantor;
(c) Investments by the Company or a Restricted Subsidiary
in the Company or a Subsidiary Guarantor;
(d) Investments in existence on the Closing Date;
(e) promissory notes or other evidence of
Indebtedness received as a result of Asset Sales permitted under
Section 1016;
(f) loans or advances to officers, directors and
employees of the Company or any of its Restricted Subsidiaries made in
the ordinary course of business after the Closing Date in an amount not
to exceed $1 million in the aggregate at any one time outstanding;
(g) any Investment by the Company or any Restricted
Subsidiary of the Company in Permitted Joint Ventures made after the
Closing Date having an aggregate fair market value, when taken together
with all other Investments made pursuant to this clause (g) that are at
the time outstanding, not exceeding in the aggregate 5% of the
Consolidated Tangible Assets of the Company as of the last day of the
most recent full fiscal quarter ending immediately prior to the date of
such Investment (with the fair market value of each Investment being
measured at the time made and without giving effect to subsequent
changes in value); and
(h) other Investments that do not exceed $20 million in the
aggregate at any one time outstanding.
"Permitted Joint Venture" means any joint venture, partnership
or other Person designated by the Board, (i) at least 50% of whose Capital Stock
with voting power under ordinary circumstances to elect directors (or Persons
having similar or corresponding powers and responsibilities) is at the time
owned (beneficially or directly) by the Company and/or by one or more Restricted
Subsidiaries of the Company and if the Company owns more than 50% of the
15
Capital Stock of the Permitted Joint Venture, such Permitted Joint Venture is a
Restricted Subsidiary of the Company, (ii) all of whose Indebtedness is
Non-Recourse Indebtedness, (iii) which is engaged in a Permitted Business, and
(iv) in which any Investment made as a result of designating such Person a
Permitted Joint Venture will not violate Section 1011; provided that each of
Berwyn Magnetic Resonance Center, LLC, Garfield Imaging Center, Ltd., MRI
Associates, L.P., Tom's River Imaging Associates, L.P., St. John's Regional
Imaging Center, LLC, Dublin Diagnostic Imaging, LLC, Buckhead Imaging, LLC,
MedFinancial, LLC, Connecticut Lithotripsy LLC, Northern Indiana Oncology Center
of Porter Memorial Hospital, LLC and Northwest Magnetic Imaging shall be deemed
to be a Permitted Joint Venture. Any such designation (other than with respect
to the Persons identified in the preceding sentence) shall be evidenced to the
Trustee by promptly filing with the Trustee a copy of the resolution giving
effect to such designation and an officer's certificate certifying that such
designation complied with the foregoing provisions.
"Permitted Refinancing Indebtedness" means any Indebtedness of
the Company or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries;
provided that: (i) the principal amount of such Permitted Refinancing
Indebtedness does not exceed the principal amount of the Indebtedness so
extended, refinanced, renewed, replaced, defeased or refunded plus the lesser of
the amount of any premium required to be paid in connection with such
refinancings pursuant to the terms of such indebtedness or the amount of any
premium reasonably determined by the Company as necessary to accomplish such
refinancing (plus the amount of reasonable expenses incurred in connection
therewith); (ii) such Permitted Refinancing Indebtedness has a Weighted Average
Life to Maturity equal to or greater than the Weighted Average Life to Maturity
of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; (iii) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the Notes,
such Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and is subordinated in right of payment to, the Notes on
terms at least as favorable to the Holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (iv) such Indebtedness is incurred either by
the Company or by the Restricted Subsidiary of the Company that is the obligor
on the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"Person" means any individual, corporation, limited or general
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor Note" of any particular Note means every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 308 in exchange for a mutilated
security or in lieu of a lost, destroyed or stolen Note shall be deemed to
evidence the
16
same debt as the mutilated, lost, destroyed or stolen Note.
"Preferred Stock" means, with respect to any Person, any and
all shares, interests, partnership interests, participation, rights in or other
equivalents (however designated) of such Person's preferred or preference stock,
whether now outstanding or issued after the Closing Date, and including, without
limitation, all classes and series of preferred or preference stock of such
Person.
"purchase money obligations" of any Person means any
obligations of such Person to any seller or any other Person incurred or assumed
to finance the construction and/or acquisition of real or personal property to
be used in the business of such Person or any of its Subsidiaries in an amount
that is not more than 100% of the cost of such property, and incurred within 90
days after the date of such construction or acquisition (excluding accounts
payable to trade creditors incurred in the ordinary course of business);
provided, however, that any Lien on such Indebtedness shall not extend to any
property other than the property so acquired or constructed.
"QIB" means a "Qualified Institutional Buyer" under Rule 144A.
"Qualified Equity Interest" means any Qualified Stock and all
warrants, options or other rights to acquire Qualified Stock (but excluding any
debt security that is convertible into or exchangeable for Capital Stock).
"Qualified Stock" of any Person means any and all Capital
Stock of such Person, other than Disqualified Stock.
"Redemption Date", when used with respect to any Note to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Register" and "Note Registrar" have the respective meanings
specified in Section 305.
"Registrar" means State Street Bank and Trust Company and any
successor authorized by the Company to act as Registrar.
"Registration Rights Agreement" means the Registration Rights
Agreement between the Company, the Subsidiary Guarantors and the Initial
Purchasers named therein, dated as of June 12, 1998 relating to the Notes.
"Registration Statement" means the Registration Statement as
defined in the
17
Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the June 1 or December 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Restricted Investment" means any Investment other than a
Permitted Investment.
"Restricted Subsidiary" means any Subsidiary other than an
Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Leaseback Transaction" means any transaction or
series of related transactions pursuant to which the Company or a Restricted
Subsidiary sells or transfers any property or asset in connection with the
leasing, or the resale against installment payments, of such property or asset
to the seller or transferor.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, and the rules and regulations thereunder.
"Senior Bank Debt" means the Obligations outstanding under the
Amended Credit Agreement.
"Senior Indebtedness" means (i) the Senior Bank Debt and any
Hedging Obligations in respect thereof and (ii) any other Indebtedness permitted
to be incurred by the Company or any Subsidiary Guarantor under the terms of
this Indenture, unless the instrument under which such Indebtedness is incurred
expressly provides that it is subordinated in right of payment to any
Indebtedness for money borrowed. Notwithstanding anything to the contrary in the
foregoing, Senior Indebtedness will not include (i) Indebtedness evidenced by
the Notes, (ii) Indebtedness of the Company that is expressly subordinated in
right of payment to any Senior Indebtedness of the Company or the Notes, (iii)
Indebtedness of the Company that by operation of law is subordinate to any
general unsecured obligations of the Company, (iv) Indebtedness of the Company
to the extent incurred in violation of this Indenture, (v) any liability for
federal, state or local taxes or other taxes, owed or owing by the Company, (vi)
trade account payables owed or owing by the Company, (vii) amounts owed by the
Company for compensation to employees or for services rendered to the Company,
(viii) Indebtedness of the Company to any Restricted Subsidiary or any other
Affiliate of the Company, (ix) Disqualified Stock of the Company and (x)
Indebtedness which when incurred and without respect to any election under
Section 1111(b) of Title 11 of the United States Code is without recourse to the
Company or any Restricted Subsidiary.
18
"Series B Preferred Stock" means the Convertible Preferred
Stock, Series B, par value $0.001 per share, of the Company, with the rights,
preferences and privileges set forth in the Company's Certificate of
Designation, Preferences and Rights of the Series B Preferred Stock.
"Series C Preferred Stock" means the Convertible Preferred
Stock, Series C, par value $0.001 per share, of the Company, with the rights,
preferences and privileges set forth in the Company's Certificate of
Designation, Preferences and Rights of the Series C Preferred Stock.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary of
the Company that, together with its Subsidiaries, (a) for the most recent fiscal
year of the Company, accounted for more than 10% of the consolidated net sales
of the Company and its Subsidiaries, (b) as of the end of such fiscal year, was
the owner of more than 10% of the consolidated assets of the Company and its
Restricted Subsidiaries, in the case of either (a) or (b), as set forth on the
most recently available consolidated financial statements of the Company for
such fiscal year or (c) was organized or acquired after the beginning of such
fiscal year and would have been a Significant Subsidiary if it had been owned
during such entire fiscal year.
"S&P" means Standard & Poor's Ratings Services, a division of
The McGraw Hill, Companies, and its successors
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 309.
"Stated Maturity" means, when used with respect to any Note or
any installment of interest thereon, the date specified in such Note as the
fixed date on which the principal of such Note or such installment of interest
is due and payable and, when used with respect to any other Indebtedness, means
the date specified in the instrument governing such Indebtedness as the fixed
date on which the principal of such Indebtedness or any installment of interest
thereon is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company
or a Subsidiary Guarantor that is subordinated in right of payment to the Notes
or the Subsidiary Guarantees issued by such Subsidiary Guarantor, as the case
may be.
"Subsidiary" means any Person a majority of the equity
ownership or Voting Stock of which is at the time owned, directly or indirectly,
by the Company and/or one or more other Subsidiaries of the Company.
19
"Subsidiary Guarantee" means with respect to each Subsidiary
Guarantor, the unconditional guarantee by such Subsidiary Guarantor, pursuant to
Article Thirteen.
"Subsidiary Guarantors" means, collectively, all Restricted
Subsidiaries that are incorporated in the United States or a State thereof or
the District of Columbia (other than Permitted Joint Ventures); provided that
any Person that becomes an Unrestricted Subsidiary in compliance with Section
1011 shall not be included in "Subsidiary Guarantors" after becoming an
Unrestricted Subsidiary.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in force at the date as of which this Indenture was executed, except
as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Subsidiary" means (a) any Subsidiary that is
designated by the Board as an Unrestricted Subsidiary in accordance with Section
1017 and (b) any Subsidiary of an Unrestricted Subsidiary.
"U.S. Government Obligations" means (i) securities that are
(a) direct obligations of the United States of America for the payment of which
the full faith and credit of the United States of America 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 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 (ii) depositary receipts issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with respect to
any U.S. Government Obligation which is specified in clause (i) above and held
by such bank for the account of the holder of such depositary receipt, or with
respect to any specific payment of principal or interest on any U.S. Government
Obligation which is so specified and held, 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 depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal or interest of the U.S. Government Obligation evidenced by such
depositary receipt.
"Voting Stock" means any class or classes of Capital Stock
pursuant to which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the board of directors,
managers or trustees of any Person (irrespective of whether or not, at the time,
stock of any other class or classes has, or might have, voting power by reason
of the happening of any contingency).
20
"Weighted Average Life" means, as of the date of determination
with respect to any Indebtedness or Disqualified Stock, the quotient obtained by
dividing (a) the sum of the products of (i) the number of years from the date of
determination to the date or dates of each successive scheduled principal or
liquidation value payment of such Indebtedness or Disqualified Stock,
respectively, multiplied by (ii) the amount of each such principal or
liquidation value payment by (b) the sum of all such principal or liquidation
value payments.
"Wholly Owned Restricted Subsidiary" means any Restricted
Subsidiary, all of the outstanding voting securities (other than directors'
qualifying shares or shares of foreign Restricted Subsidiaries required to be
owned by foreign nationals pursuant to applicable law) of which are owned,
directly or indirectly, by the Company.
SECTION 102. Incorporation by Reference of Trust Indenture
Act.
(a) This Indenture is expressly made subject to the Trust
Indenture Act as if this Indenture were, on the date hereof, subject to the
Trust Indenture Act under the provisions of such statute and such provisions are
incorporated by reference in this Indenture.
(b) Whenever this Indenture refers to a provision of the
Trust Indenture Act, the provision is incorporated by reference in and made a
part of this Indenture. The following Trust Indenture Act terms used in this
Indenture have the following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or any
other obligor on the Notes.
All other Trust Indenture Act terms used in this Indenture
that are defined by the Trust Indenture Act, defined by reference in the Trust
Indenture Act to another statute or defined by a rule of the Commission and not
otherwise defined herein shall have the meanings assigned to them therein.
SECTION 103. Compliance Certificates and Opinions.
Upon any application or request by the Company and the
Subsidiary Guarantors to the Trustee to take any action under any provision of
this Indenture, the Company and the Subsidiary Guarantors shall furnish to the
Trustee an Officers' Certificate stating that all
21
conditions precedent, if any, provided for in this Indenture (including any
covenant compliance which constitutes a condition precedent) relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1008(a)) shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company and/or
the Subsidiary Guarantors may be based, insofar as it relates to legal matters,
upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Company or such Subsidiary Guarantor, as the case may be, stating that the
information with respect to such factual matters is in the possession of the
Company or such Subsidiary Guarantor, as the case may be, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations
22
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 105. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in Person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee, the Company
and the Subsidiary Guarantors, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of the signer's authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner that the Trustee deems sufficient.
(c) The principal amount and serial numbers of Notes held
by any Person, and the date of holding the same, shall be proved by the
Register.
(d) If the Company or any Subsidiary Guarantor shall
solicit from the Holders of Notes any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company or any such Subsidiary
Guarantor (as the case may be), may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company or any such Subsidiary Guarantor
(as the case may be) shall have no obligation to do so. Notwithstanding TIA
Section 316(c), such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than the
date 30 days prior to the first solicitation of Holders generally in connection
therewith and not later than the date such solicitation is completed. If such a
record date is fixed, such request,
23
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Notes have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Notes shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company and/or the Subsidiary Guarantors in reliance thereon, whether or not
notation of such action is made upon such Note.
SECTION 106. Notices, etc., to Trustee, Company and
Subsidiary Guarantors.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder, the Company or any Subsidiary
Guarantor shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Department, or
(b) the Company by the Trustee, any Holder or any0
Subsidiary Guarantor shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at 4400
MacArthur Boulevard, Suite 800, Newport Beach, California 92660,
Attention: General Counsel, or at any other address previously
furnished in writing to the Trustee or such Subsidiary Guarantor (as
the case may be) by the Company, or
(c) any Subsidiary Guarantor by any Holder, the Trustee or the
Company shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to Subsidiary Guarantor addressed to it at
4400 MacArthur Boulevard, Suite 800, Newport Beach, California 92660,
Attention: General Counsel, or at any other address previously
furnished in writing to the Trustee or the Company (as the case may be)
by such Subsidiary Guarantor.
24
SECTION 107. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to
Holders by the Company or the Trustee, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impracticable
to mail notice of any event to Holders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice for every purpose hereunder.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
and the Subsidiary Guarantors shall bind their respective successors and
assigns, whether so expressed or not.
SECTION 110. Severability Clause.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied,
shall give to any
25
Person, other than the parties hereto, any Paying Agent, any Note Registrar and
their successors hereunder, and the Holders any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Notes shall be governed by, and
construed in accordance with, the law of the State of New York. Upon the
issuance of the Exchange Notes, if any, or the effectiveness of the Shelf
Registration Statement, this Indenture shall be subject to the provisions of the
Trust Indenture Act that are required to be part of this Indenture and shall, to
the extent applicable, be governed by such provisions.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
date established for payment of Defaulted Interest pursuant to Section 309,
Stated Maturity or Maturity with respect to any Note shall not be a Business
Day, then (notwithstanding any other provision of this Indenture or of the
Notes) payment of principal (or premium, if any) or interest need not be made on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date, Redemption Date, date
established for payment of Defaulted Interest pursuant to Section 309, Stated
Maturity or Maturity; provided that no interest shall accrue for the period from
and after such Interest Payment Date, Redemption Date, date established for
payment of Defaulted Interest pursuant to Section 309, Stated Maturity or
Maturity, Change in Control Purchase Date or Asset Sale Purchase Date, as the
case may be, to the next succeeding Business Day.
SECTION 114. Conflict of Any Provision of Indenture with
Trust Indenture Act.
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by Trust Indenture Act
Sections 310 to 318, inclusive, or conflicts with any provision (an
"incorporated provision") required by or deemed to be included in this Indenture
by operation of such Trust Indenture Act Sections, such imposed duties or
incorporated provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or excluded, as the case may be.
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally.
26
The Initial Notes shall be known as the "95/8% Senior
Subordinated Notes due 2008" and the Exchange Notes shall be known as the "95/8%
Series B Senior Subordinated Notes due 2008", in each case, of the Company. The
Notes and the Trustee's certificate of authentication shall be in substantially
the form annexed hereto as Exhibit A. The Notes may have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have letters, notations or other marks of
identification and such notations, legends or endorsements required by law,
stock exchange agreements to which the Company is subject or usage. Any portion
of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note. The Company shall approve
the form of the Notes and any notation, legend or endorsement on the Notes. Each
Note shall be dated the date of its authentication.
The definitive Notes shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing such Notes, as evidenced
by their execution of such Notes.
The terms and provisions contained in the form of the Notes
annexed hereto as Exhibit A shall constitute, and are hereby expressly made, a
part of this Indenture. To the extent applicable, the Company and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
Initial Notes offered and sold in reliance on Rule 144A shall
be issued initially in the form of a permanent global Note substantially in the
form set forth in Exhibit A (the "U.S. Global Note") deposited with, or on
behalf of, the Depositary or with the Trustee, as custodian for the Depositary,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the U.S. Global Note may from time
to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
Initial Notes offered and sold in offshore transactions in
reliance on Regulation S shall be issued initially in the form of a single
permanent global Note in registered form substantially in the form set forth in
Exhibit A (the "Offshore Global Note") deposited with the Trustee, as custodian
for the Depositary, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount at maturity of
the Offshore Global Note may from time to time be increased or decreased by
adjustments made in the records of the Trustee, as custodian for the Depositary
or its nominee, as herein provided.
Initial Notes offered and sold to "accredited investors" (as
defined in Rule 501(a)(1), (2), (3) and (7) under the Securities Act) who are
not QIBs (excluding non-U.S. Persons) shall initially be issued in the form of
permanent certificated Notes ("U.S. Physical Notes") in registered form in
substantially the form of Exhibit A hereto. Notes issued pursuant to Section 306
in exchange for or upon transfer of interests in the U.S. Global Note or the
Offshore Global Note shall be in the form of U.S. Physical Notes or in the form
of permanent
27
certificated Notes in registered form substantially in the form set
forth in Exhibit A (the "Offshore Physical Note").
The Offshore Physical Notes and the U.S. Physical Notes are
sometimes collectively herein referred to as the "Physical Notes". The Offshore
Global Note and the U.S. Global Note are sometimes collectively referred to as
the "Global Notes."
SECTION 202. Restrictive Legends.
Unless and until (i) an Initial Note is sold under an
effective Registration Statement or (ii) an Initial Note is exchanged for an
Exchange Note in connection with an effective Registration Statement, in each
case pursuant to the Registration Rights Agreement, (A) each U.S. Global Note
and U.S. Physical Note shall bear the legend set forth below (the "Private
Placement Legend") on the face thereof and (B) the Offshore Physical Notes and
the Offshore Global Note shall bear the legend set forth below on the face
thereof until at least 41 days after the Issue Date and receipt by the Company
and the Trustee of a certificate substantially in the form of Exhibit A hereto:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES
TO OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE WHICH
IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE
OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) (THE "RESALE
RESTRICTION TERMINATION DATE"), ONLY (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS NOTE IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO
A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E)
TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
28
SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT THAT IS ACQUIRING THIS NOTE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT
OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," 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
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) PRIOR
TO THE END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO
CLAUSES (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRANSFER AGENT. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
Each Global Note, whether or not an Initial Note, shall also
bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY 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 THE DEPOSITORY TRUST
COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTIONS 306 AND 307 OF THE INDENTURE.
29
ARTICLE THREE
THE NOTES
SECTION 301. Title and Terms.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is limited to $100,000,000,
except for Notes authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Notes pursuant to Section 304, 305,
306, 307, 308, 906, 1015, 1016 or 1108, pursuant to an Exchange Offer or
pursuant to Section 312.
The Initial Notes shall be known and designated as the "9 5/8%
Senior Subordinated Notes Due 2008" and the Exchange Notes shall be known and
designated as the "9 5/8% Series B Senior Subordinated Notes Due 2008" of the
Company. Their Stated Maturity shall be June 15, 2008, and they shall bear
interest at the rate of 9 5/8% per annum from June 12, 1998, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, payable semiannually on June 15 and December 15 in each year, commencing
December 15, 1998, until the principal thereof is paid or duly provided for, to
the Person in whose name the Note (or any Predecessor Note) is registered at the
close of business on the June 1 or December 1 next preceding such Interest
Payment Date.
The principal of (and premium, if any), and interest on the
Notes shall be payable, and the Notes shall be exchangeable and transferable, at
the office or agency of the Company in The City of New York maintained for such
purposes (which initially shall be the office of the Trustee located at 61
Broadway, 15th Floor, New York, New York 10006) or, at the option of the
Company, interest may be paid by check mailed to the address of the Person
entitled thereto as such address shall appear on the Register; provided that all
payments with respect to the U.S. Global Note and the U.S. Physical Notes the
Holders of which have given wire transfer instructions to the Company will be
required to be made by wire transfer of immediately available funds to the
accounts specified by the Holders thereof.
Notes that remain outstanding after the consummation of the
Exchange Offer and Exchange Notes issued in connection with the Exchange Offer
will be treated as a single class of securities under this Indenture.
The Notes shall be redeemable as provided in Article Eleven.
SECTION 302. Denominations.
The Notes shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof;
provided that U.S. Physical Notes originally purchased by or transferred to
institutional "accredited investors" (as defined in Rule
30
501(a), (1), (2), (3) or (7) under the Securities Act) who are not QIBs
(excluding Non-U.S. Persons) will be subject to a minimum denomination of
$250,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by its
Chairman, its President or a Vice President. The signature of any of these
officers on the Notes may be manual or facsimile signatures of the present or
any future such authorized officer and may be imprinted or otherwise reproduced
on the Notes.
Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Notes or did
not hold such offices at the date of such Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Initial Notes executed by
the Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Initial Notes directing the Trustee to
authenticate the Notes and certifying that all conditions precedent to the
issuance of Notes contained herein have been fully complied with, and the
Trustee in accordance with such Company Order shall authenticate and deliver
such Initial Notes. On Company Order, the Trustee shall authenticate for
original issue Exchange Notes in an aggregate principal amount not to exceed the
sum of $100,000,000 plus the aggregate principal amount of any Additional Notes
issued; provided that such Exchange Notes shall be issuable only upon the valid
surrender for cancellation of Initial Notes of a like aggregate principal amount
in accordance with an Exchange Offer pursuant to the Registration Rights
Agreement. In each case, the Trustee shall be entitled to receive an Officers'
Certificate and an Opinion of Counsel of the Company that it may reasonably
request in connection with such authentication of Notes. Such order shall
specify the amount of Notes to be authenticated and the date on which the
original issue of Initial Notes or Exchange Notes is to be authenticated.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for in Exhibit
A duly executed by the Trustee by manual signature of an authorized officer, and
such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture.
In case the Company, pursuant to Article Eight, 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
31
such consolidation, or surviving such merger, or into which the Company shall
have been merged, or the Person which shall have received a conveyance,
transfer, lease or other disposition as aforesaid, shall have executed an
indenture supplemental hereto with the Trustee pursuant to Article Eight, any of
the Notes 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 Notes 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 Notes surrendered
for such exchange and of like principal amount; and the Trustee, upon Company
Request of the successor Person, shall authenticate and deliver Notes as
specified in such request for the purpose of such exchange. If Notes shall at
any time be authenticated and delivered in any new name of a successor Person
pursuant to this Section in exchange or substitution for or upon registration of
transfer of any Notes, such successor Person, at the option of the Holders but
without expense to them, shall provide for the exchange of all Notes at the time
Outstanding for Notes authenticated and delivered in such new name.
SECTION 304. Temporary Notes.
Pending the preparation of definitive Notes, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Notes which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Notes in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Notes may determine, as conclusively evidenced by their
execution of such Notes.
If temporary Notes are issued, the Company will cause
definitive Notes to be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes shall be exchangeable for
definitive Notes upon surrender of the temporary Notes at the office or agency
of the Company designated for such purpose pursuant to Section 1002, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a like principal amount of definitive Notes of
authorized denominations. Until so exchanged, the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as definitive
Notes.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency designated pursuant to Section 1002 being herein
sometimes referred to as the "Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Notes and of transfers of Notes. The Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. At all reasonable times,
32
the Register shall be open to inspection by the
Trustee. The Trustee is hereby initially appointed as security registrar (the
"Note Registrar") for the purpose of registering Notes and transfers of Notes as
herein provided.
Subject to the provisions of Section 307, upon surrender for
registration of transfer of any Note at the office or agency of the Company
designated pursuant to Section 1002, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes of any authorized denomination or
denominations of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other
Notes of any authorized denomination and of a like aggregate principal amount,
upon surrender of the Notes to be exchanged at such office or agency. Whenever
any Notes are so surrendered for exchange (including an exchange of Initial
Notes for Exchange Notes), the Company shall execute, and the Trustee shall
authenticate and deliver, the Notes which the Holder making the exchange is
entitled to receive; provided that no exchange of Initial Notes for Exchange
Notes shall occur until an Exchange Offer Registration Statement shall have been
declared effective by the Commission and that the Initial Notes to be exchanged
for the Exchange Notes shall be canceled by the Trustee.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Note
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Note Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange or redemption of Notes, but the Company may require payment
in certain circumstances of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Notes, other than exchanges pursuant to Section 304,
906, 1015, 1016 or 1108 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Note during a period beginning at the opening of
business 15 days before the selection of Notes to be redeemed under Section 1104
and ending at the close of business on the day of such mailing of the relevant
notice of redemption, or (ii) to register the transfer of or exchange any Note
so selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part.
SECTION 306. Book-Entry Provisions for Global Notes.
33
(a) Each Global Note initially shall (i) be registered in
the name of Cede & Co., as nominee of the Depositary (such nominee being
referred to herein as the "Global Note Holder"), (ii) be deposited with, or on
behalf of, the Depositary or with the Trustee, as custodian for such Depositary,
and (iii) bear legends as set forth in Section 202.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Note held on their behalf by the Depositary, or the Trustee as its custodian, or
under any Global Note, and the Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Note 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 the Depositary or shall impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any Note.
(b) Transfers of any Global Note shall be limited to
transfers of such Global Note in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in a
Global Note may be transferred in accordance with the rules and procedures of
the Depositary and the provisions of Section 307. In addition, U.S. Physical
Notes or Offshore Physical Notes shall be transferred to all beneficial owners
in exchange for their beneficial interests in the U.S. Global Note or the
Offshore Global Note, respectively, if: (x) the Depositary notifies the Company
that it is unwilling or unable to continue as Depositary for the applicable
Global Note or the Depositary ceases to be a "Clearing Agency" registered under
the Exchange Act and a successor depositary is not appointed by the Company
within 90 days or (y) an Event of Default has occurred and is continuing and
Holders of more than 25% in aggregate principal amount of the Notes at the time
Outstanding represented by the Global Notes advise the Trustee through the
Depositary in writing that the continuation of a book-entry system through the
Depositary with respect to the Global Notes is no longer required.
(c) Any beneficial interest in one of the Global Notes that
is transferred to a person who takes delivery in the form of an interest in the
other Global Note will, upon transfer, cease to be an interest in such Global
Note and become an interest in the other Global Note and, accordingly, will
thereafter be subject to all transfer restrictions, if any, and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(d) In connection with any transfer pursuant to paragraph
(b) of this Section of a beneficial interest in any Global Note to a beneficial
owner who is required or permitted to hold a Physical Note, the Note Registrar
shall reflect on its books and records the date and a decrease in the principal
amount of the applicable Global Note in an amount equal to the principal amount
of the beneficial interest in such Global Note to be transferred, and the
Company shall execute, and the Trustee shall authenticate and deliver, subject
to the terms and
34
conditions of Section 307 hereof, one or more Physical Notes of like tenor and
amount.
(e) In connection with the transfer of the entire U.S. Global
Note or Offshore Global Note to beneficial owners pursuant to paragraph (b) of
this Section, the U.S. Global Note or Offshore Global Note, as the case may be,
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 the Depositary in exchange for its beneficial
interest in the U.S. Global Note or Offshore Global Note, as the case may be, an
equal aggregate principal amount of U.S. Physical Notes or Offshore Physical
Notes, as the case may be, of authorized denominations.
(f) Any U.S. Physical Note delivered in exchange for an
interest in the U.S. Global Note pursuant to subsection (b) or (d) of this
Section shall, unless such exchange is made on or after the Resale Restriction
Termination Date and except as otherwise provided in Section 307, bear the
applicable legend regarding transfer restrictions applicable to the U.S.
Physical Note set forth in Section 202.
(g) The registered Global Notes Holder 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 Notes.
(h) Beneficial owners of interests in a Global Note may
receive Physical Notes (which shall bear the Private Placement Legend if
required by Section 202) in accordance with the procedures of the Depositary. In
connection with the execution, authentication and delivery of such Physical
Notes, the Registrar shall reflect on its books and records a decrease in the
principal amount of the relevant Global Note equal to the principal amount of
such Physical Notes and the Company shall execute and the Trustee shall
authenticate and deliver one or more Physical Notes having an equal aggregate
principal amount.
SECTION 307. Special Transfer Provisions.
Unless and until (i) an Initial Note is sold under an
effective Registration Statement, or (ii) an Initial Note is exchanged for an
Exchange Note in connection with an effective Registration Statement, in each
case pursuant to the Registration Rights Agreement, the following provisions
shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors.
The following provisions shall apply with respect to the registration of any
proposed transfer of an Initial Note to any institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act) which is not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Initial
Note, whether or not
35
such Initial Note bears the Private Placement Legend, if (x) the
requested transfer is at least two years after the original issue date
of the Initial Notes or (y) the proposed transferee has delivered to
the Registrar a certificate substantially in the form of Exhibit D
hereto.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Note, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (i) and
(y) instructions given in accordance with the Depositary's and the
Registrar's procedures therefor, the Registrar shall reflect on its
books and records the date and a decrease in the principal amount of
the U.S. Global Note in an amount equal to the principal amount of the
beneficial interest in the U.S. Global Note to be transferred, and the
Company shall execute, and the Trustee shall authenticate and deliver,
one or more U.S. Physical Notes of like tenor and amount.
(b) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed transfer of a U.S. Physical
Note or an interest in the U.S. Global Note to a QIB (excluding Non-U.S.
Persons):
(i) If the Note to be transferred consists of (i) U.S.
Physical Notes, the Registrar shall register the transfer and the
Company shall execute, and the Trustee shall authenticate and deliver
one or more U.S. Physical Notes if such transfer is being made by a
proposed transferor who has checked the box provided for on the form of
Initial Note stating, or has otherwise advised the Company and the
Registrar in writing, that the sale has been made in compliance with
the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Initial Note stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the Initial Note for its own account or an account with
respect to which it exercises sole investment discretion and that it,
or the Person on whose behalf it is acting with respect to any such
account, is a QIB 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 it 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 or (ii) an interest in the U.S.
Physical Note, the transfer of such interest may be effected only
through the book-entry system maintained by the Depositary.
(ii) If the proposed transferee is an Agent Member, and the
Initial Notes to be transferred consist of U.S. Physical Notes, upon
receipt by the Registrar of instructions given in accordance with the
Depositary's and the Registrar's procedures therefor, the Registrar
shall reflect on its books and records the date and an increase in the
principal amount of the U.S. Global Note in an amount equal to the
principal amount of the U.S. Physical Notes, as the case may be, to be
transferred, and the Trustee shall cancel the U.S.
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Physical Notes so transferred.
(c) Transfers of Interests in the Offshore Global Note or
Offshore Physical Notes to U.S. Persons. The following provisions shall apply
with respect to any transfer of interests in the Offshore Global Note or
Offshore Physical Notes to U.S. Persons:
(i) prior to the removal of the Private Placement Legend from
the Offshore Global Notes or Offshore Physical Notes pursuant to
Section 202, the Note Registrar shall refuse to register such
transfer; and
(ii) after such removal pursuant to Section 202, the Note
Registrar shall register the transfer of any such Note without
requiring any additional certification.
(d) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of an Initial Note to a
Non-U.S. Person:
(i) Prior to July 22, 1998, the Registrar shall register any
proposed transfer of an Initial Note to a Non-U.S. Person upon receipt
of a certificate substantially in the form of Exhibit E hereto from the
proposed transferor and the Company shall execute, and the Trustee
shall authenticate and deliver, one or more Temporary Certificates of
like tenor and amount.
(ii) On and after July 22, 1998, the Registrar shall register
any proposed transfer to any Non-U.S. Person (x) if the Initial Note to
be transferred is an Offshore Physical Note, (y) if the Initial Note to
be transferred is a U.S. Physical Note or an interest in the U.S.
Global Note, upon receipt of a certificate substantially in the form of
Exhibit D from the proposed transferor and (z) in the case of either
clause (x) or (y), the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Physical Notes of like tenor and
amount.
(iii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Note, upon receipt by the
Registrar of (x) the document, if any, required by paragraph (i), and
(y) instructions in accordance with the Depositary's and the
Registrar's procedures therefor, the Registrar shall reflect on its
books and records the date and a decrease in the principal amount of
the U.S. Global Note in an amount equal to the principal amount of the
beneficial interest in the U.S. Global Note to be transferred and the
Company shall execute, and the Trustee shall authenticate and deliver,
one or more Physical Notes of like tenor and amount.
(e) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement Legend
unless either (i) the circumstances contemplated by paragraph (a)(i)(x) of this
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Section 307 exist or (ii) there is delivered to the Registrar an Opinion of
Counsel reasonably satisfactory to the Company 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.
(f) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain until such time as no Notes remain
Outstanding copies of all letters, notices and other written communications
received pursuant to Section 306 or this Section 307. 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 written
notice to the Registrar.
SECTION 308. Mutilated, Destroyed, Lost and Stolen Notes.
If (i) any mutilated Note is surrendered to the Trustee or the
Registrar, or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Note, and there is
delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and upon Company Order the Trustee shall
authenticate and deliver, in exchange for any such mutilated Note or in lieu of
any such destroyed, lost or stolen Note, a new Note of like tenor and principal
amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Note 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 Notes 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,
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destroyed, lost or stolen Notes.
SECTION 309. Payment of Interest; Interest Rights Preserved.
Interest on any Note 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 Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency of the Company in The City of New York maintained for such purposes
(which initially shall be the office of the Trustee located at 61 Broadway, 15th
Floor, New York, New York 10006 pursuant to Section 1002 or, at the option of
the Company, interest may be paid by check mailed to the address of the Person
entitled thereto pursuant to Section 310 as such address appears in the
Register; provided that all payments with respect to the Global Note and
Physical Notes the Holders of which have given wire transfer instructions to the
Trustee (or other Paying Agent) by the Regular Record Date shall be required to
be made by wire transfer of immediately available funds to the accounts
specified by the Holders thereof.
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date 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 Notes (such
defaulted interest and interest thereon herein collectively called "Defaulted
Interest") may 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 Notes (or their respective
Predecessor Notes) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be
paid on each Note and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date, and in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
given in the manner provided for in Section 107, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having
been so given, such Defaulted Interest shall be paid to the Persons in
whose names the
39
Notes (or their respective Predecessor Notes) 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 Notes 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.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
If the Company shall be required to pay any additional
interest pursuant to the terms of the Registration Rights Agreement, it shall
deliver an Officer's Certificate to the Trustee setting forth the new interest
rate and the period for which such rate is applicable.
SECTION 310. Persons Deemed Owners.
Prior to the due presentment of a Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Note is registered as the owner of such
Note for the purpose of receiving payment of principal of (and premium, if any)
and (subject to Sections 305 and 309) interest on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 311. Cancellation.
All Notes surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Notes previously authenticated
hereunder which the Company has not issued and sold, and all Notes so delivered
shall be promptly canceled by the Trustee. If the Company shall so acquire any
of the Notes, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Notes unless and until the
same are surrendered to the Trustee for cancellation. No Notes shall be
authenticated in lieu of or in exchange for any Notes canceled as provided in
this
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Section, except as expressly permitted by this Indenture. All canceled
Notes held by the Trustee shall be disposed of by the Trustee in accordance with
its customary procedures and certification of their disposal delivered to the
Company unless by Company Order the Company shall direct that canceled Notes be
returned to it.
SECTION 312. Issuance of Additional Notes.
The Company may, subject to Article Ten of this Indenture,
issue up to $75,000,000 aggregate principal amount of additional Notes having
identical terms and conditions as the Notes offered hereby, except that interest
may begin accruing from a date other than the Closing Date (the "Additional
Notes"). Any Additional Notes will be part of the same issue as the Notes
offered hereby and will vote on all matters with the Notes offered hereby.
SECTION 313. Computation of Interest.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
Upon the request of the Company, this Indenture will cease to
be of further effect (except as to surviving rights of registration of transfer
or exchange of the Notes, as expressly provided for herein or pursuant hereto)
and the Trustee, at the expense of the Company, will execute proper instruments
acknowledging satisfaction and discharge of this Indenture when:
(a) either (i) all the Notes theretofore authenticated and
delivered (other than mutilated, destroyed, lost or stolen Notes that
have been replaced or paid and Notes that have been subject to
defeasance under Article Twelve) have been delivered to the Trustee for
cancellation or (ii) all Notes not theretofore delivered to the Trustee
for cancellation (A) have become due and payable, (B) will become due
and payable at maturity within one year or (C) 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, in the case
of (A), (B) or
41
(C) above, has irrevocably deposited or caused to be deposited with
the Trustee funds in trust for the purpose in an amount sufficient to
pay and discharge the entire Indebtedness on such Notes not
theretofore delivered to the Trustee for cancellation, for principal
(and premium, if any, on) and interest on the Notes to the date of
such deposit (in the case of Notes that have become due and payable)
or to the Stated Maturity or redemption date, as the case may be;
(b) the Company has paid or caused to be paid all sums payable
under this Indenture by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided herein relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section
607 and, if money shall have been deposited with the Trustee pursuant
to subclause (ii) of clause (a) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Notes and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of any interest on any Note when it
becomes due and payable, and continuance of such default for a period
of 30 days (whether or not
42
prohibited by Article 14);
(b) default in the payment of the principal of (or premium, if
any, on) any Note when due (whether or not prohibited by Article 14);
(c) failure to perform or comply with Sections 801, 1010,
1011, 1015 and 1016;
(d) default in the performance, or breach, of any covenant or
agreement of the Company or any Subsidiary Guarantor contained in this
Indenture or in any Subsidiary Guarantee (other than a default in the
performance, or breach, of a covenant or agreement that is specifically
dealt with elsewhere herein), and continuance of such default or breach
for a period of 60 days after written notice has been given to the
Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in aggregate principal amount of the Notes (and
Additional Notes, if any) then outstanding;
(e) (i) an event of default has occurred under any mortgage,
bond, indenture, loan agreement or other document evidencing an issue
of Indebtedness of the Company or any Restricted Subsidiary, which
issue individually or in the aggregate has an aggregate outstanding
principal amount of not less than $5 million, and such default has
resulted in such Indebtedness becoming, whether by declaration or
otherwise, due and payable prior to the date on which it would
otherwise become due and payable or (ii) a default (a "Payment
Default") in any payment when due at final maturity of any such
Indebtedness;
(f) failure by the Company or any of its Restricted
Subsidiaries to pay one or more final judgments the uninsured portion
of which exceeds in the aggregate $5 million, which judgment or
judgments are not paid, discharged or stayed for a period of 60 days;
(g) any Subsidiary Guarantee ceases to be in full force and
effect or is declared null and void or any such Subsidiary Guarantor
denies that it has any further liability under any Subsidiary
Guarantee, or gives notice to such effect (other than by reason of the
termination of this Indenture or the release of any such Subsidiary
Guarantee in accordance with this Indenture); or
(h) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company or any Significant
Subsidiary a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustments or
composition of or in respect of the Company or any Significant
Subsidiary under the Federal Bankruptcy Code or any other applicable
federal or state law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or any
Significant Subsidiary or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such
43
decree or order unstayed and in effect for a period of 90 consecutive
days; or
(i) the institution by the Company or any Significant
Subsidiary of proceedings to be adjudicated a bankrupt or insolvent, or
the consent by it to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under the Federal Bankruptcy
Code or any other applicable federal or state law, or the consent by it
to the filing of any such petition or to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official)
of the Company or any Significant Subsidiary or of any substantial part
of its property, or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default (other than as specified in Section
501(h) or 501(i) above) occurs and is continuing, the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Notes (and Additional
Notes, if any) then outstanding may, and the Trustee at the request of such
Holders will, declare the principal of, and accrued interest on, all of the
outstanding Notes immediately due and payable and, upon any such declaration,
such principal and such interest will become due and payable immediately.
If an Event of Default specified in Section 501(h) or 501(i)
above occurs and is continuing, then the principal of and accrued interest on
all of the outstanding Notes will ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder.
At any time after a declaration of acceleration under this
Indenture, but before a judgment or decree for payment of the money due has been
obtained by the Trustee, the holders of a majority in aggregate principal amount
of the outstanding Notes (and Additional Notes, if any), by written notice to
the Company and the Trustee, may rescind such declaration and its consequences
if: (i) the Company has paid or deposited with the Trustee a sum sufficient to
pay (A) all overdue interest on all Notes, (B) all unpaid principal of (and
premium, if any, on) any outstanding Notes that has become due otherwise than by
such declaration of acceleration and interest thereon at the rate borne by the
Notes, (C) to the extent that payment of such interest is lawful, interest upon
overdue interest and overdue principal at the rate borne by the Notes and (D)
all sums paid or advanced by the Trustee under this Indenture and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel; and (ii) all Events of Default, other than the non-payment of
amounts of principal of (or premium, if any, on) or interest on the Notes that
have become due solely by such declaration of acceleration, have been cured or
waived. No such rescission will affect any subsequent default or impair any
right consequent thereon.
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Notwithstanding the preceding paragraph, in the event of a
declaration of acceleration in respect of the Notes because an Event of Default
specified in Section 501(e) shall have occurred and be continuing and provided
no judgment or decree for payment of the money due has been obtained by the
Trustee, such declaration of acceleration shall be automatically annulled if the
Indebtedness that is the subject of such Event of Default has been discharged or
the holders thereof have rescinded their declaration of acceleration in respect
of such Indebtedness, and written notice of such discharge or rescission, as the
case may be, shall have been given to the Trustee by the Company and
countersigned by the holders of such Indebtedness or a trustee, fiduciary or
agent for such holders, within 30 days after such declaration of acceleration in
respect of the Notes, and no other Event of Default has occurred during such
30-day period which has not been cured or waived during such period.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company and each of the Subsidiary Guarantors covenants
that if
(a) default is made in the payment of any installment of
interest on any Note when such interest becomes due and payable and
such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Note at the Maturity thereof,
the Company and each Subsidiary Guarantor, subject to Section 1305, will, upon
demand of the Trustee, pay to the Trustee for the benefit of the Holders of such
Notes, the whole amount then due and payable on such Notes for principal (and
premium, if any) and interest, and interest on any overdue principal (and
premium, if any) and, to the extent that payment of such interest shall be
legally enforceable, upon any overdue installment of interest, at the rate borne
by the Notes, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company or any Subsidiary Guarantor, as the case may
be, fails to pay such amounts forthwith upon such demand, the Trustee, in its
own name as trustee of an express trust, may institute a judicial proceeding for
the collection of the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the Company, such
Subsidiary Guarantor or any other obligor upon the Notes and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company, such Subsidiary Guarantor or any other obligor upon the
Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial
45
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Notes (including the Subsidiary Guarantors) or the property of the Company or of
such other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal, premium, if any,
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(a) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Notes and to file such 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
of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Notes.
All rights of action and claims under this Indenture or the
Notes may be prosecuted and enforced by the Trustee without the possession of
any of the Notes or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name and as trustee of an express trust, and any recovery of
46
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Notes in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, upon presentation of the Notes and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Notes in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Notes for principal (and premium, if
any) and interest, respectively; and
THIRD: The balance, if any, to the Company or any other
obligors of the Notes, including the Subsidiary Guarantors, as their
interests may appear, or as a court of competent jurisdiction may
direct.
SECTION 507. Limitation on Suits.
No Holder of any of the Notes has any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless
such Holder has previously given written notice to the Trustee of a continuing
Event of Default, the Holders of at least 25% in aggregate principal amount of
the outstanding Notes (and Additional Notes, if any) have made written request,
and offered reasonable indemnity, to the Trustee to institute such proceeding,
the Trustee has failed to institute any such proceeding within 60 days after
receipt of such notice, request and offer of indemnity and the Trustee, within
such 60-day period, has not received directions inconsistent with such written
request from Holders of a majority in aggregate principal amount of the
outstanding Notes (and Additional Notes, if any). Such limitations do not apply,
however, to a suit instituted by a Holder of a Note for the enforcement of the
payment of the principal of, premium, if any, or interest on such Note on or
after the respective due dates expressed in such Note. A Holder may not use this
Indenture to prejudice the rights of another Holder or to obtain a preference or
priority over another Holder.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
47
Notwithstanding any other provision in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional, to
receive payment, as provided herein (including, if applicable, Article Twelve)
and in such Note of the principal of (and premium, if any) and (subject to
Section 309) interest on such Note on the respective Stated Maturities expressed
in such Note (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Subsidiary Guarantors, the
Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph
of Section 308, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Note to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as
the case may be.
SECTION 512. Control by Holders.
The Holders of not less than a majority in principal amount of
the Outstanding Notes (and Additional Notes, if any) shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or
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power conferred on the Trustee, provided that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture,
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(c) the Trustee need not take any action which might conflict
with law or this Indenture or involve it in personal liability or be
unjustly prejudicial to the Holders not consenting.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the outstanding Notes (and Additional Notes, if any) may, by notice to
the Trustee, on behalf of the Holders of all of the Notes, waive any existing
Default or Event of Default and its consequences under this Indenture, except a
continuing Default or Event of Default in the payment of the principal of (and
premium, if any) or interest on any Note (except for such a default resulting
from an acceleration that has been rescinded), or in respect of a covenant or
provision that under this Indenture cannot be modified or amended without the
consent of the Holder of each outstanding Note.
Upon any such waiver, such Default or Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company and each Subsidiary Guarantor covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company and each Subsidiary Guarantor (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
SECTION 515. Waiver of Personal Liability of Directors,
Officers, Employees and Stockholders.
No director, officer, employee, incorporator or stockholder of
the Company, as
49
such, shall have any liability for any obligations of the Company under the
Notes or this Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. No director, officer, employee,
incorporator or stockholder of any Subsidiary Guarantor, as such, shall have any
liability for any obligations of such Subsidiary Guarantor under its Subsidiary
Guarantee or this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes and the Subsidiary Guarantees. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such waiver is against public
policy.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing and
is actually known to the Trustee, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the same degree of care and
skill in its exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, 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 the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section;
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(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 512 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section.
SECTION 602. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing
and is actually known to the Trustee, the Trustee shall mail to each Holder of
the Notes notice of the Default or Event of Default within 90 days after the
occurrence thereof. However, except in the case of a Default or an Event of
Default in payment of principal of (and premium, if any, on) or interest on any
Notes, the Trustee may withhold the notice to the Holders of the Notes if a
committee of its trust officers in good faith determines that withholding such
notice is in the interests of the Holders of the Notes.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through
315(d):
(a) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting, pursuant to the terms of this
Indenture or otherwise, upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
with sufficient detail as may be requested by the Trustee and any
resolution of the Board may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate and/or an Opinion of Counsel;
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(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities (including fees
and expenses of its agents and counsel) which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into, and may conclusively rely upon, the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation,
it shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(i) except during the continuance of an Event of Default, the
Trustee need perform only those duties as are specifically set forth in
this Indenture; and
(j) the Trustee shall not be deemed to have notice or
knowledge of any matter, including, without limitation, whether or not
an Event of Default has occurred, unless an officer within the
Corporate Trust Department of the Trustee has actual acknowledge
thereof or unless written notice thereof is received by the Trustee at
its Corporate Trust Office and such notice references the Notes, the
Company or this Indenture.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of
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such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 604. Trustee Not Responsible for Recitals or Issuance
of Notes.
The recitals contained herein and in the Notes, except for the
Trustee's certificates of authentication, shall be taken as the statements of
the Company and the Subsidiary Guarantors, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture, the Notes or any Subsidiary
Guarantee, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Notes and perform its
obligations hereunder and, upon the effectiveness of the Registration Statement,
that the statements made by it in a Statement of Eligibility on Form T-1
supplied to the Company are true and accurate, subject to the qualifications set
forth therein. The Trustee shall not be accountable for the use or application
by the Company of Notes or the proceeds thereof.
SECTION 605. May Hold Notes.
The Trustee, any Paying Agent, any Note Registrar or any other
agent of the Company or of the Trustee, in its individual or other capacity, may
become the owner or pledgee of Notes and, subject to TIA Sections 310(b) and
311, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Paying Agent, Note Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company or any Subsidiary Guarantor, as the
case may be.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Trustee (in its capacity as Trustee, Paying
Agent and Registrar) from time to time reasonable compensation for all
services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel),
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except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so
notify the Company shall not relieve the Company of its obligations
hereunder. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent, which
consent shall not be unreasonably withheld.
The obligations of the Company under this Section to
compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. As security for the performance of such
obligations of the Company, the Trustee shall have a claim prior to the Notes
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (and premium, if any) or
interest on particular Notes.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(i) or (j), the
expenses (including the reasonable charges and expenses of its counsel) of and
the compensation for such services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 608. Corporate Trustee Required; Eligibility.
There shall be at all times a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1). The Trustee and each
successor Trustee shall have (or its corporate parent shall have) a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of Federal, State, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
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SECTION 609. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 610.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 610 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of not less than a majority in principal amount of the Outstanding Notes
(and Additional Notes, if any), delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Note for at least six
months, except when the Trustee's duty to resign is stayed in
accordance with the provisions of TIA Section 310(b), or
(2) the Trustee shall cease to be eligible under Section 608
and shall fail to resign after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Note for at least
six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation, winding-up or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee, or (ii) subject to TIA Section 315(e), any Holder who has been a bona
fide Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall
55
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Notes (and Additional Notes, if any) delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment, become the successor Trustee and supersede
the successor Trustee appointed by the Company. If no successor Trustee shall
have been so appointed by the Company or the Holders and accepted appointment in
the manner hereinafter provided subject to TIA Section 315(e), any Holder who
has been a bona fide Holder of a Note for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to the
Holders of Notes in the manner provided for in Section 107. Each notice shall
include the name of the successor Trustee and the address of its Corporate Trust
Office.
SECTION 610. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder subject to the retiring Trustee's rights
as provided under the last sentence of Section 607. Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 611. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same
56
effect as if such successor Trustee had itself authenticated such Notes. In case
at that time any of the Notes shall not have been authenticated, any successor
Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor Trustee. In all such cases such
certificates shall have the full force and effect which this Indenture provides
that the certificate of authentication of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Notes, by receiving and holding the same,
agrees with the Company and the Trustee that none of the Company or the Trustee
or any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section
312(b).
SECTION 702. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Notes, the Trustee shall transmit to
the Holders, in the manner and to the extent provided in TIA Section 313(c), a
brief report dated as of such May 15 if required by TIA Section 313(a).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain
Terms.
The Company shall not, in a single transaction or series of
related transactions, consolidate or merge with or into (whether or not the
Company is the surviving corporation), or directly and/or indirectly through its
Subsidiaries, sell, assign, transfer, lease, convey or otherwise dispose of all
or substantially all of its properties or assets (determined on a consolidated
basis for the Company and its Subsidiaries taken as a whole) in one or more
related
57
transactions to, another corporation, Person or entity unless:
(a) either (i) the Company is the surviving corporation or
(ii) in the case of a transaction involving the Company, the entity or
the Person formed by or surviving any such consolidation or merger (if
other than the Company) or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made (the
"Surviving Entity") is a corporation organized or existing under the
laws of the United States, any state thereof or the District of
Columbia and assumes all the obligations of the Company under the Notes
and this Indenture pursuant to a supplemental indenture in a form
reasonably satisfactory to the Trustee;
(b) immediately after giving effect to such transaction and
treating any obligation of the Company in connection with or as a
result of such transaction as having been incurred as of the time of
such transaction, no Default or Event of Default has occurred and is
continuing;
(c) the Company (or the Surviving Entity if the Company is not
the continuing obligor under this Indenture) could, at the time of such
transaction and after giving pro forma effect thereto as if such
transaction had occurred at the beginning of the applicable
four-quarter period, incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to the first paragraph of
Section 1010;
(d) each Subsidiary Guarantor, unless it is the other party to
the transaction described above, has by supplemental indenture
confirmed that its Subsidiary Guarantee applies to the Surviving
Entity's obligations under this Indenture and the Notes;
(e) if any of the property or assets of the Company or any of
its Restricted Subsidiaries would thereupon become subject to any Lien,
the provisions of Section 1014 are complied with; and
(f) the Company delivers, or causes to be delivered, to the
Trustee, in form and substance reasonably satisfactory to the Trustee,
an Officers' Certificate and an Opinion of Counsel, each stating that
such transaction complies with the requirements of this Indenture.
No Subsidiary Guarantor shall consolidate with or merge with
or into any other Person or convey, sell, assign, transfer, lease or otherwise
dispose of its properties and assets substantially as an entirety to any other
Person (other than the Company or another Subsidiary Guarantor) unless:
(a) subject to the provisions of the following paragraph, the
Person formed by or surviving such consolidation or merger (if other
than such Subsidiary Guarantor) or to which such properties and assets
are transferred assumes all of the obligations of such
58
Subsidiary Guarantor under this Indenture and its Subsidiary
Guarantee, pursuant to a supplemental indenture in form and substance
satisfactory to the Trustee;
(b) immediately after giving effect to such transaction, no
Default or Event of Default has occurred and is continuing; and
(c) the Subsidiary Guarantor delivers, or causes to be
delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers' Certificate and an Opinion of
Counsel, each stating that such transaction complies with the
requirements of this Indenture.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Restricted Subsidiaries, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
SECTION 802. Successor Substituted.
In the event of any transaction described in and complying
with the conditions listed in the first paragraph of Section 801 in which the
Company is not the continuing obligor under this Indenture, the Surviving Entity
will succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture, and thereafter the Company will, except in
the case of a lease, be discharged from all its obligations and covenants under
this Indenture and Notes.
ARTICLE NINE
SUPPLEMENTS AND AMENDMENTS TO INDENTURE
AND SUBSIDIARY GUARANTEES
SECTION 901. Without Consent of Holders.
Without the consent of any Holders, the Company and any
affected Subsidiary Guarantor, each when authorized by a Board Resolution, and
the Trustee may amend or supplement this Indenture, the Notes or any Subsidiary
Guarantee without the consent of any Holder of a Note:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company in this Indenture and in the Notes; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or
59
to surrender any right or power herein conferred upon the Company; or
(3) to add additional Events of Defaults; or
(4) to provide for uncertificated Notes in addition to or
in place of the Physical Notes; or
(5) to evidence and provide for the acceptance of appointment
under this Indenture by a successor Trustee; or
(6) to secure the Notes; or
(7) to cure any ambiguity, to correct or supplement any
provision in this Indenture that may be defective or inconsistent with
any other provision in this Indenture, or to make any other provisions
with respect to matters or questions arising under this Indenture,
provided, however that such actions pursuant to this clause do not
adversely affect the interests of the Holders in any material respect;
or
(8) to comply with any requirements of the Commission in order
to effect and maintain the qualification of this Indenture under the
Trust Indenture Act.
Notwithstanding the foregoing, neither the Company nor
the Trustee may amend any provisions of the Indenture or the
Notes concerning (i) the subordination of the Notes and the
Subsidiary Guarantees or (ii) legal defeasance or covenant
defeasance without, in either case, the prior written
consent of the Agent Bank, acting on behalf of the Banks
under the Amended Credit Agreement.
SECTION 902. With Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate Outstanding principal amount of the Notes (and Additional Notes, if
any) (including consents obtained in connection with a tender offer or exchange
offer for the Notes), by Act of said Holders delivered to the Company, any
affected Subsidiary Guarantor and the Trustee, the Company and the Subsidiary
Guarantor, each when authorized by a Board Resolution, and the Trustee may amend
or supplement in any manner this Indenture or any Subsidiary Guarantee or modify
in any manner the rights of the Holders under this Indenture or any Subsidiary
Guarantee; provided, however, that no such supplement, amendment or modification
may, without the consent of the Holder of each Outstanding Note affected
thereby:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the coin or currency in
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which any Note or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of
any such payment after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date);
(b) amend, change or modify the obligation of the Company to
make and consummate an Excess Proceeds Offer with respect to any Asset
Sale in accordance with the covenant described under Section 1016 or
the obligation of the Company to make and consummate a Change of
Control offer in the event of a Change of Control in accordance with
Section 1015, including, in each case, amending, changing or modifying
any definition relating thereto;
(c) reduce the percentage in principal amount of Outstanding
Notes, the consent of whose Holders is required for any waiver of
compliance with certain provisions of, or certain defaults and their
consequences provided for under, this Indenture;
(d) waive a Default or Event of Default in the payment of
principal of, or premium, if any, or interest on the Notes or reduce
the percentage or aggregate principal amount of outstanding Notes the
consent of whose Holders is necessary for waiver of compliance with
certain provisions of this Indenture or for waiver of certain Defaults
or Events of Default;
(e) modify the ranking or priority of the Notes or the
Subsidiary Guarantee of any Subsidiary Guarantor; or
(f) release any Subsidiary Guarantor from any of its
obligations under its Subsidiary Guarantee or this Indenture other than
in accordance with the terms of this Indenture.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
Upon the request of the Company accompanied by a Board
Resolution authorizing the execution of any amended or supplemental indenture,
the Trustee shall, subject to this Section 903, join with the Company in the
execution of such amended or supplemental indenture authorized or permitted by
the terms of this Indenture. In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee shall
be entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The
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Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustees own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Notes theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company, any affected
Subsidiary Guarantor and the Trustee of any supplemental indenture or Subsidiary
Guarantee pursuant to the provisions of Section 902, the Company shall give
notice thereof to the Holders of each Outstanding Note affected, in the manner
provided for in Section 107, setting forth in general terms the substance of
such supplemental indenture or Subsidiary Guarantee.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and
Interest.
The Company covenants and agrees for the benefit of the
Holders that it will duly and punctually pay the principal of (and premium, if
any) and interest on the Notes in accordance with the terms of the Notes and
this Indenture.
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SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in The City of New York, an office
or agency where Notes may be presented or surrendered for payment, where Notes
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Notes and this Indenture
may be served. The Corporate Trust Office located at 61 Broadway, 15th Floor,
New York, New York 10006 of the Trustee 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
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of The City of New York) where the
Notes 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 1003. Money for Note Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of (or premium, if any) or
interest on any of the Notes, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal of (or premium,
if any) or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
the Notes, it will, on or before each due date (but no later than 12:00 p.m.
(New York City time) on such due date) of payments with respect to the principal
of (or premium, if any) or interest on any Notes, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of such action or
any failure so to act.
The Company will cause each Paying Agent (other than the
Trustee) to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
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(a) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Notes in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or
any other obligor upon the Notes) in the making of any payment of
principal (and premium, if any) or interest; and
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Any money deposited with the Trustee or any Paying Agent,
or then held by the Company, in trust for the payment of the principal of (or
premium, if any) or interest on any Note and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due
and payable shall, subject to applicable escheatment laws, be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect the
corporate existence, rights (charter and statutory) and franchises of the
Company and each Subsidiary; provided, however, that the Company shall not be
required to preserve any such right or franchise if the Board shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the
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Company and its Subsidiaries as a whole and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1005. 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, (a) all 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 (b)
all lawful claims for labor, materials and supplies, which, if unpaid, might by
law become a lien upon the property of the Company or any 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.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties owned by the Company or
any Subsidiary or used or held for use in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Company from discontinuing the maintenance of any of such properties
if such discontinuance is, in the judgment of the Company, desirable in the
conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 1007. Insurance.
The Company will at all times keep all of its and its
Subsidiaries' properties which are of an insurable nature insured with insurers,
believed by the Company to be responsible, against loss or damage to the extent
that property of similar character is usually so insured by corporations
similarly situated and owning like properties.
SECTION 1008. Statement by Officers As to Default.
(a) The Company and each Subsidiary Guarantor will deliver to
the Trustee, within 120 days after the end of each fiscal year, a brief
certificate from the principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of compliance by the
Company and such Subsidiary Guarantor with all conditions and covenants under
this Indenture. For purposes of this Section 1008(a), such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
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(b) When any Default has occurred and is continuing under this
Indenture, or if the trustee for or the holder of any other evidence of
Indebtedness of the Company or any Subsidiary Guarantor gives any notice or
takes any other action with respect to a claimed default (other than with
respect to Indebtedness in the principal amount of less than $2,000,000), the
Company shall deliver to the Trustee by registered or certified mail or by
telegram, telex or facsimile transmission an Officers' Certificate specifying
such event, notice or other action within five days of becoming aware of its
occurrence.
SECTION 1009. Reports.
Whether or not the Company is required to file reports with
the Commission, so long as any Notes are outstanding, the Company will file all
such annual reports, quarterly reports and other documents that the Company
would be required to file if it were subject to Section 13(a) or 15(d) under the
Exchange Act. The Company shall also be required (a) to supply to the Trustee
and each Holder, or supply to the Trustee for forwarding to each such Holder,
without cost to such Holder, copies of such reports and other documents within
15 days after the date on which the Company files such reports and documents
with the Commission or the date on which the Company would be required to file
such reports and documents if the Company were so required and (b) if filing
such reports and documents with the Commission is not accepted by the Commission
or is prohibited under the Exchange Act, to supply at the Company's cost copies
of such reports and documents to any prospective Holder promptly upon written
request. In addition, whether or not required by the rules and regulations of
the Commission at any time after the Company files a registration statement with
respect to the Exchange Offer or a Shelf Registration Statement, the Company
will file a copy of all such information and reports with the Commission for
public availability (unless the Commission will not accept such a filing) and
make such information available to securities analysts and prospective investors
upon request. In addition, the Company has agreed that, for so long as any Notes
remain outstanding, it will furnish to the Holders and to securities analysts
and prospective investors, upon their request, the information specified in Rule
144A(d)(4) under the Securities Act.
SECTION 1010. Limitation on Incurrence of Indebtedness and
Issuance of Disqualified Stock.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, create, issue, assume, guarantee or in any manner become directly
or indirectly liable for the payment of, or otherwise incur (collectively,
"incur"), any Indebtedness (including Acquired Indebtedness and the issuance of
Disqualified Stock), except that the Company and any Subsidiary Guarantors may
incur Indebtedness if, at the time of such event, the Fixed Charge Coverage
Ratio for the immediately preceding four full fiscal quarters for which internal
financial statements are available, taken as one accounting period, would have
been equal to at least (i) 2.0 to 1.0 from the Closing Date through and
including June 30, 2000 and (ii) 2.25 to 1.0 thereafter.
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(b) In making the foregoing calculation for any four-quarter
period that includes the Closing Date, pro forma effect will be given to the
Offering, as if such transactions had occurred at the beginning of such
four-quarter period. In addition (but without duplication), in making the
foregoing calculation, pro forma effect will be given to:
(i) the incurrence of such Indebtedness and (if applicable)
the application of the net proceeds therefrom, including to refinance
other Indebtedness, as if such Indebtedness was incurred and the
application of such proceeds occurred at the beginning of such
four-quarter period;
(ii) the incurrence, repayment or retirement of any other
Indebtedness by the Company or its Restricted Subsidiaries since the
first day of such four-quarter period as if such Indebtedness was
incurred, repaid or retired at the beginning of such four-quarter
period; and
(iii) the acquisition (whether by purchase, merger or
otherwise) or disposition (whether by sale, merger or otherwise) of any
company, entity or business acquired or disposed of by the Company or
its Restricted Subsidiaries, as the case may be, since the first day of
such four-quarter period, as if such acquisition or disposition
occurred at the beginning of such four-quarter period. In making a
computation under the foregoing clause (i) or (ii), (A) the amount of
Indebtedness under a revolving credit facility will be computed based
on the average daily balance of such Indebtedness during such
four-quarter period, (B) if such Indebtedness bears, at the option of
the Company, a fixed or floating rate of interest, interest thereon
will be computed by applying, at the option of the Company, either the
fixed or floating rate, and (C) the amount of any Indebtedness that
bears interest at a floating rate will be calculated as if the rate in
effect on the date of determination had been the applicable rate for
the entire period (taking into account any Hedging Obligations
applicable to such Indebtedness if such Hedging Obligations have a
remaining term at the date of determination in excess of 12 months).
(c) Notwithstanding the foregoing, the Company may, and may
permit its Restricted Subsidiaries to, incur the following Indebtedness
("Permitted Indebtedness"):
(i) Indebtedness of the Company or any Subsidiary Guarantor
under the Amended Credit Agreement (and the incurrence by any
Subsidiary Guarantor of guarantees thereof) in an aggregate principal
amount at any one time outstanding not to exceed $150 million, less any
amounts applied to the permanent reduction of such credit facilities
pursuant to the provisions of Section 1016;
(ii) Indebtedness represented by the Notes (other than the
Additional Notes) and the Subsidiary Guarantees;
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(iii) Existing Indebtedness;
(iv) the incurrence by the Company of Permitted Refinancing
Indebtedness in exchange for, or the net proceeds of which are used to
refund, refinance or replace, any Indebtedness that is permitted to be
incurred under clause (ii) or (iii) above;
(v) Indebtedness owed by the Company to any Wholly Owned
Restricted Subsidiary or owed by any Restricted Subsidiary to the
Company or a Wholly Owned Restricted Subsidiary (provided that such
Indebtedness is held by the Company or such Restricted Subsidiary);
provided, however, that any Indebtedness of the Company owing to any
such Restricted Subsidiary is unsecured and subordinated in right of
payment from and after such time as the Notes shall become due and
payable (whether at Stated Maturity, acceleration, or otherwise) to the
payment and performance of the Company's obligations under the Notes;
(vi) Indebtedness of the Company or any Restricted Subsidiary
under Hedging Obligations incurred in the ordinary course of business;
(vii) Indebtedness of the Company or any Restricted Subsidiary
consisting of guarantees, indemnities or obligations in respect of
purchase price adjustments in connection with the acquisition or
disposition of assets, including, without limitation, shares of
Capital Stock;
(viii) either (A) Capitalized Lease Obligations of the Company
or any Restricted Subsidiary or (B) Indebtedness under purchase money
mortgages or secured by purchase money security interests so long as
(x) such Indebtedness is not secured by any property or assets of the
Company or any Restricted Subsidiary other than the property and assets
so acquired and (y) such Indebtedness is created within 60 days of the
acquisition of the related property; provided, however, that the
aggregate amount of Indebtedness under clauses (A) and (B) does not
exceed 5% of Consolidated Tangible Assets at any one time outstanding;
(ix) Guarantees by any Restricted Subsidiary made in
accordance with the provisions of Section 1022;
(x) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided,
however, that such Indebtedness is extinguished within two business
days of incurrence;
(xi) Indebtedness of the Company or any of its Restricted
Subsidiaries represented by letters of credit for the account of the
Company or such Restricted
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Subsidiary, as the case may be, in order to provide security for
workers' compensation claims, payment obligations in connection with
self-insurance or similar requirements in the ordinary course of
business;
(xii) the incurrence of Non-Recourse Indebtedness by Permitted
Joint Ventures; and
(xiii) Indebtedness of the Company, any Subsidiary Guarantor
or any Permitted Joint Venture not permitted by any other clause of
this definition, in an aggregate principal amount not to exceed $15
million at any one time outstanding.
SECTION 1011. Limitation on Restricted Payments.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, take any of the following actions:
(a) declare or pay any dividend on, or make any distribution
to holders of, any shares of the Capital Stock of the Company or any
Restricted Subsidiary, other than (i) dividends or distributions
payable solely in Qualified Equity Interests or (ii) dividends or
distributions by a Restricted Subsidiary payable to the Company or
another Wholly Owned Restricted Subsidiary;
(b) purchase, redeem or otherwise acquire or retire for value,
directly or indirectly, any shares of Capital Stock, or any options,
warrants or other rights to acquire such shares of Capital Stock, of
the Company, any Restricted Subsidiary or any Affiliate of the Company
(other than, in either case, any such Capital Stock owned by the
Company or any of its Wholly Owned Restricted Subsidiaries);
(c) make any principal payment on, or repurchase, redeem,
defease or otherwise acquire or retire for value, prior to any
scheduled principal payment, sinking fund payment or maturity, any Pari
Passu Indebtedness or Subordinated Indebtedness; and
(d) make any Investment (other than a Permitted Investment) in
any Person (such payments or other actions described in (but not
excluded from) clauses (a) through (d) being referred to as "Restricted
Payments"), unless at the time of, and immediately after giving effect
to, the proposed Restricted Payment:
(i) no Default or Event of Default has occurred and
is continuing,
(ii) the Company would, at the time of such
Restricted Payment and after giving pro forma effect thereto
as if such Restricted Payment had been made at the beginning
of the applicable four-quarter period, have been permitted to
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incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 1010, and
(iii) the aggregate amount of all Restricted Payments
made after the Closing Date does not exceed the sum of:
(A) 50% of the aggregate Consolidated Net
Income of the Company during the period (taken as one
accounting period) from the first day of the
Company's first fiscal quarter commencing after the
Closing Date to the last day of the Company's most
recently ended fiscal quarter for which internal
financial statements are available at the time of
such proposed Restricted Payment (or, if such
aggregate cumulative Consolidated Net Income is a
loss, minus 100% of such amount); plus
(B) 100% of the aggregate net cash proceeds
received by the Company after the Closing Date from
the issuance or sale (other than to a Subsidiary) of
either (1) Qualified Equity Interests of the Company
or (2) debt securities or Disqualified Stock that
have been converted into or exchanged for Qualified
Stock of the Company, together with the aggregate net
cash proceeds received by the Company at the time of
such conversion or exchange.
Notwithstanding the foregoing, the Company and its Restricted
Subsidiaries may take the following actions, so long as no Default or Event of
Default has occurred and is continuing or would occur:
(a) the payment of any dividend in cash or Qualified Equity
Interests of the Company within 60 days after the date of declaration
thereof, if at the declaration date such payment would not have been
prohibited by the foregoing provisions;
(b) the repurchase, redemption or other acquisition or
retirement for value of any shares of Capital Stock of the Company, in
exchange for, or out of the net cash proceeds of a substantially
concurrent issuance and sale (other than to a Subsidiary) of, Qualified
Equity Interests of the Company;
(c) the purchase, redemption, defeasance or other acquisition
or retirement for value of any Pari Passu Indebtedness or Subordinated
Indebtedness in exchange for, or out of the net cash proceeds of a
substantially concurrent issuance and sale (other than to a Subsidiary)
of, shares of Qualified Equity Interests of the Company;
(d) the purchase, redemption, defeasance or other acquisition
or retirement for value of Pari Passu Indebtedness or Subordinated
Indebtedness in exchange for, or out of the net cash proceeds of a
substantially concurrent issuance or sale (other than to a
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Subsidiary) of, Pari Passu Indebtedness or Subordinated Indebtedness,
respectively, so long as the Company or a Restricted Subsidiary would
be permitted to refinance such original Pari Passu Indebtedness or
Subordinated Indebtedness with such new Pari Passu Indebtedness or
Subordinated Indebtedness pursuant to clause (iv) of the definition of
Permitted Indebtedness;
(e) the repurchase of any Subordinated Indebtedness at a
purchase price not greater than 101% of the principal amount of such
Subordinated Indebtedness in the event of a Change of Control in
accordance with provisions similar to Section 1015; provided, however,
that prior to or simultaneously with such repurchase, the Company has
made the Change of Control Offer as provided in Section 1015 with
respect to the Notes and has repurchased all Notes validly tendered for
payment in connection with such Change of Control Offer;
(f) the purchase, redemption, acquisition, cancellation or
other retirement for value of shares of Capital Stock of the Company,
options on any such shares or related stock appreciation rights or
similar securities held by officers or employees or former officers or
employees of the Company or of any Restricted Subsidiary (or their
estates or beneficiaries under their estates) or by any employee
benefit plan, upon death, disability, retirement or termination of
employment or pursuant to the terms of any employee benefit plan or
any other agreement under which such shares of stock or related rights
were issued; provided, however, that the aggregate cash consideration
paid for such purchase, redemption, acquisition, cancellation or other
retirement of such shares of Capital Stock after the Closing Date does
not exceed $500,000 in any fiscal year; and
(g) Investments constituting Restricted Payments not to exceed
$5 million at any one time outstanding.
The actions described in clauses (b), (c), (e), (f) and (g) of
the second paragraph of this Section 1011 will be Restricted Payments that will
be permitted to be taken in accordance with this Section 1011 but will reduce
the amount that would otherwise be available for Restricted Payments under
clause (d)(iii) of the first paragraph of this Section 1011 and the actions
described in clauses (a) and (d) of the second paragraph of this Section 1011
will be Restricted Payments that will be permitted to be taken in accordance
with this Section 1011 and will not reduce the amount that would otherwise be
available for Restricted Payments under clause (d)(iii) of the first paragraph
of this Section 1011.
For the purpose of making any calculations under this
Indenture (i) if a Restricted Subsidiary is designated an Unrestricted
Subsidiary, the Company will be deemed to have made an Investment in an amount
equal to the greater of the fair market value or net book value of the net
assets of such Restricted Subsidiary at the time of such designation as
determined by the Board, and (ii) any property transferred to or from an
Unrestricted Subsidiary will be valued at fair market value at the time of such
transfer, as determined by the Board. The amount of all
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Restricted Payments (other than cash) shall be the fair market value on the date
of the Restricted Payment of the asset(s) or securities proposed to be
transferred or issued by the Company or such Restricted Subsidiary, as the case
may be, pursuant to the Restricted Payment. The fair market value of any
non-cash Restricted Payment shall be determined by the Board whose resolution
with respect thereto shall be delivered to the Trustee, such determination to be
based upon an opinion or appraisal issued by an accounting, appraisal or
investment banking firm of national standing if such fair market value exceeds
$5 million. Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required under this Section 1011 were computed, together with a
copy of any fairness opinion or appraisal required by this Indenture.
If the aggregate amount of all Restricted Payments calculated
under the foregoing provision includes an Investment in an Unrestricted
Subsidiary or other Person that thereafter becomes a Restricted Subsidiary, the
aggregate amount of all Restricted Payments calculated under the foregoing
provision will be reduced by the lesser of (x) the net asset value of such
Subsidiary at the time it becomes a Restricted Subsidiary and (y) the initial
amount of such Investment.
If an Investment resulted in the making of a Restricted
Payment, the aggregate amount of all Restricted Payments calculated under the
foregoing provision will be reduced by the amount of any net reduction in such
Investment (resulting from the payment of interest or dividends, loan repayment,
transfer of assets or otherwise, other than the redesignation of an Unrestricted
Subsidiary or other Person as a Restricted Subsidiary), to the extent such net
reduction is not included in the Company's Consolidated Net Income; provided
that the total amount by which the aggregate amount of all Restricted Payments
may be reduced may not exceed the lesser of (x) the cash proceeds received by
the Company and its Restricted Subsidiaries in connection with such net
reduction and (y) the initial amount of such Investment.
In computing the Consolidated Net Income of the Company for
purposes of the foregoing clause (d)(iii)(A) of the first paragraph of this
Section 1011, (i) the Company may use audited financial statements for the
portions of the relevant period for which audited financial statements are
available on the date of determination and unaudited financial statements and
other current financial data based on the books and records of the Company for
the remaining portion of such period and (ii) the Company will be permitted to
rely in good faith on the financial statements and other financial data derived
from its books and records that are available on the date of determination. If
the Company makes a Restricted Payment that, at the time of the making of such
Restricted Payment, would in the good faith determination of the Company be
permitted under the requirements of this Indenture, such Restricted Payment will
be deemed to have been made in compliance with this Indenture notwithstanding
any subsequent adjustments made in good faith to the Company's financial
statements affecting Consolidated Net Income of the Company for any period.
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SECTION 1012. Limitation on Issuances and Sales of Capital
Stock of Restricted Subsidiaries.
The Company (a) shall not permit any Restricted Subsidiary to
issue any Capital Stock (other than to the Company or a Wholly Owned Restricted
Subsidiary) and (b) shall not, and shall not permit any Restricted Subsidiary
to, transfer, convey, sell, lease or otherwise dispose of any Capital Stock of
any Restricted Subsidiary to any Person (other than the Company or a Wholly
Owned Restricted Subsidiary); provided, however, that this covenant will not
prohibit (i) the sale or other disposition of all, but not less than all, of the
issued and outstanding Capital Stock of a Restricted Subsidiary owned by the
Company and its Restricted Subsidiaries in compliance with the other provisions
of this Indenture, (ii) the sale or other disposition of a portion of the issued
and outstanding Capital Stock of an existing Wholly Owned Subsidiary if (A) as a
result of such sale or disposition such Wholly Owned Restricted Subsidiary
becomes a Permitted Joint Venture and (B) at the time of such sale or
disposition, the Company could make an Investment in the remaining Capital Stock
held by it or one of its Restricted Subsidiaries in an amount equal to the
amount of its remaining Investment in such existing Restricted Subsidiary
pursuant to Section 1011, or (iii) the ownership by directors of director's
qualifying shares or the ownership by foreign nationals of Capital Stock of any
Restricted Subsidiary, to the extent mandated by applicable law.
The Company shall not permit any Restricted Subsidiary to
issue any Preferred Stock.
SECTION 1013. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, enter into or suffer to exist any
transaction with, or for the benefit of, any Affiliate of the Company
("Interested Persons"), unless (a) such transaction is on terms that are no less
favorable to the Company or such Restricted Subsidiary, as the case may be, than
those that could have been obtained in an arm's length transaction with third
parties who are not Interested Persons and (b) the Company delivers to the
Trustee (i) with respect to any transaction or series of related transactions
entered into after the Closing Date involving aggregate payments in excess of
$1.0 million, a resolution of the Board set forth in an officers' certificate
certifying that such transaction or transactions comply with clause (a) above
and that such transaction or transactions have been approved by the Board
(including a majority of the Disinterested Directors) of the Company and (ii)
with respect to a transaction or series of related transactions involving
aggregate payments equal to or greater than $10 million, a written opinion as to
the fairness to the Company or such Restricted Subsidiary of such transaction or
series of transactions from a financial point of view issued by an accounting,
appraisal or investment banking firm, in each case of national standing.
The foregoing covenant will not restrict:
(A) transactions among the Company and/or its Restricted
Subsidiaries;
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(B) the Company from paying reasonable and customary regular
compensation and fees to directors of the Company or any Restricted
Subsidiary who are not employees of the Company or any Restricted
Subsidiary;
(C) transactions permitted by Section 1011;
(D) advances to employees for moving, entertainment and travel
expenses and similar expenditures in the ordinary course of business
and consistent with past practice; and
(E) purchases of equipment, supplies and related services made
on an arm's length basis in the ordinary course of business by the
Company, any Restricted Subsidiary or any Permitted Joint Venture from
any Affiliate.
SECTION 1014. Limitation on Liens.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist
any Lien securing Pari Passu Indebtedness or Subordinated Indebtedness of the
Company on or with respect to any of its property or assets, including any
shares of stock or indebtedness of any Restricted Subsidiary, whether owned at
the Closing Date or thereafter acquired, or any income, profits or proceeds
therefrom, or assign or otherwise convey any right to receive income thereon,
unless:
(i) in the case of any Lien securing Subordinated
Indebtedness, the Notes are secured by a Lien on such property, assets
or proceeds that is senior in priority to such Lien; and
(ii) in the case of any Lien securing Pari Passu Indebtedness,
the Notes are secured by a Lien on such property, assets or proceeds
that is senior in priority to or pari passu with such Lien.
(b) The Company shall not permit any Subsidiary Guarantor to,
directly or indirectly, create, incur, assume or suffer to exist any Lien
securing Pari Passu Indebtedness or Subordinated Indebtedness of such Subsidiary
Guarantor on or with respect to such Subsidiary Guarantor's properties or
assets, including any shares of stock or Indebtedness of any other Restricted
Subsidiary, whether owned at the Closing Date or thereafter acquired, or any
income, profits or proceeds therefrom, or assign or otherwise convey any right
to receive income thereon, unless:
(i) in the case of any Lien securing Pari Passu Indebtedness
of such Subsidiary Guarantor, each Subsidiary Guarantee of such
Subsidiary Guarantor is secured by a Lien on such property, assets or
proceeds that is senior in priority to or pari passu with such Lien;
and
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(ii) in the case of any Lien securing Subordinated
Indebtedness of such Subsidiary Guarantor, each Subsidiary Guarantee of
such Subsidiary Guarantor is secured by a Lien on such property, assets
or proceeds that is senior in priority to such Lien.
SECTION 1015. Purchase of Notes upon a Change of Control.
(a) If a Change of Control occurs at any time, then each
Holder shall have the right to require that the Company purchase such Holder's
Notes and Additional Notes, if any, in whole or in part in integral multiples of
$1,000, at a purchase price in cash equal to 101% of the principal amount of
such Notes, plus accrued and unpaid interest, if any, to the date of purchase,
pursuant to the offer described below (the "Change of Control Offer") and the
other procedures set forth in this Indenture.
(b) Within 30 days following any Change of Control, the
Company shall notify the Trustee thereof and give written notice of such Change
of Control to each Holder of Notes and Additional Notes by first-class mail,
postage prepaid, at its address appearing in the security register, stating,
among other things:
(i) the purchase price and the purchase date, which will be a
Business Day no earlier than 30 days nor later than 60 days from the
date such notice is mailed or such later date as is necessary to comply
with requirements under the Exchange Act;
(ii) that any Note or Additional Note not tendered will
continue to accrue interest;
(iii) that, unless the Company defaults in the payment of the
purchase price, any Notes or Additional Notes accepted for payment
pursuant to the Change of Control Offer will cease to accrue interest
after the Change of Control purchase date;
(iv) that Holders electing to have any Note purchased pursuant
to the Change of Control Offer will be required to surrender such Note,
together with the form entitled "Option to the Holder to Elect
Purchase" on the reverse side of such Note completed, to the Paying
Agent at the address specified in the notice prior to the close of
business on this Business Day immediately preceding the Change of
Control Payment Date;
(v) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the close of business on
the third Business Day immediately preceding the Change of Control
Payment Date, a facsimile transmission or letter setting forth the name
of such Holder, the principal amount of Notes delivered for purchase
and a statement that such Holder is withdrawing his election to have
such Notes purchased; and
(vi) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes
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surrendered; provided that each Note purchased and each new Note
issued shall be in a principal amount of $1,000 or integral multiples
thereof.
(c) The Company shall comply with the applicable tender offer
rules including Rule-14e under the Exchange Act, and any other applicable
securities laws and regulations in connection with a Change of Control Offer. To
the extent that provisions of any applicable securities laws or regulations
conflict with provisions of this Section 1015, the Company shall comply with
such securities laws and regulations and shall not be deemed to have breached
its obligations under this Section 1015 by virtue thereof.
(d) The Company will not be required to make a Change of
Control Offer upon a Change of Control if a third party makes the Change of
Control Offer in the manner, at the
times and otherwise in compliance with the requirements set forth in this
Indenture applicable to a Change of Control Offer made by the Company and
purchases all the Notes validly tendered and not withdrawn under such Change of
Control Offer.
SECTION 1016. Limitation on Certain Asset Sales.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any Asset Sale unless (i) the consideration received by
the Company or such Restricted Subsidiary for such Asset Sale is not less than
the fair market value of the assets sold evidenced by a resolution of the board
of directors of such entity set forth in an Officers' Certificate delivered to
the Trustee and (ii) the consideration received by the Company or the relevant
Restricted Subsidiary in respect of such Asset Sale consists of at least 75%
cash or Cash Equivalents (for purposes of this clause (ii), cash and Cash
Equivalents includes (a) the principal amount of any Indebtedness for money
borrowed (as reflected in the Company's consolidated balance sheet) of the
Company or any Restricted Subsidiary that is assumed by any transferee of any
such assets or other property in such Asset Sale, but only to the extent that
such assumption is effected on a basis under which there is no further recourse
to the Company or any of its Restricted Subsidiaries with respect to such
Indebtedness, and (b) any securities, notes or other obligations received by the
Company or such Restricted Subsidiary from such transferee that are converted
within 90 days of consummation of the related Asset Sale by the Company or such
Restricted Subsidiary into cash and Cash Equivalents (to the extent of the net
cash proceeds or the Cash Equivalents (net of related costs) received upon such
conversion)).
(b) If the Company or any Restricted Subsidiary engages in an
Asset Sale, the Company may, at its option, within 12 months after such Asset
Sale, (i) apply all or a portion of the Net Cash Proceeds to the permanent
reduction of amounts outstanding under the Amended Credit Agreement (and to
correspondingly reduce the commitments, if any, with respect thereto) or to the
permanent repayment of other Senior Indebtedness of the Company or a Restricted
Subsidiary, provided that the repayment of any Indebtedness incurred under the
Amended Credit Agreement in connection with the acquisition of any Facility with
the proceeds of any subsequent Sale and Leaseback Transaction relating to such
Facility shall not result in the
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permanent reduction of the amounts outstanding under the Amended Credit
Agreement or correspondingly permanently reduce the commitments thereunder, or
(ii) invest (or enter into a legally binding agreement to invest) all or a
portion of such Net Cash Proceeds in properties and assets to replace the
properties and assets that were the subject of the Asset Sale or in properties
and assets that will be used in the businesses of the Company or its Restricted
Subsidiaries, as the case may be, existing on the Closing Date or in businesses
the same, similar or reasonably related thereto. If any such legally binding
agreement to invest such Net Cash Proceeds is terminated, the Company may,
within 90 days of such termination or within 12 months of such Asset Sale,
whichever is later, invest such Net Cash Proceeds as provided in clause (i) or
(ii) (without regard to the parenthetical contained in such clause (ii)) above.
Pending the final application of any such Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise invest
such Net Proceeds in a manner that is not prohibited by this Indenture. The
amount of such Net Cash Proceeds not so used as set forth above in this
paragraph shall constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $5
million, the Company will, within 30 days thereafter, make an offer to purchase
(an "Excess Proceeds Offer") from all Holders of Notes and Additional Notes, if
any, on a pro rata basis, in accordance with the procedures set forth in this
Indenture, the maximum principal amount (expressed as a multiple of $1,000) of
Notes and Additional Notes, if any, that may be purchased with the Excess
Proceeds, at a purchase price in cash equal to 100% of the principal amount
thereof, plus accrued interest, if any, to the date such offer to purchase is
consummated. To the extent that the aggregate principal amount of Notes and
Additional Notes, if any, tendered pursuant to such offer to purchase is less
than the Excess Proceeds, the Company may use such deficiency for general
corporate purposes. If the aggregate principal amount of Notes and Additional
Notes, if any, validly tendered and not withdrawn by holders thereof exceeds the
Excess Proceeds, the Notes and Additional Notes, if any, to be purchased will be
selected on a pro rata basis. Upon completion of such offer to purchase, the
amount of Excess Proceeds will be reset to zero.
SECTION 1017. Unrestricted Subsidiaries.
(a) The Board may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary so
long as (i) neither the Company nor any Restricted Subsidiary is directly or
indirectly liable for any Indebtedness of such Subsidiary, (ii) no default with
respect to any Indebtedness of such Subsidiary would permit (upon notice, lapse
of time or otherwise) any holder of any other Indebtedness of the Company or any
Restricted Subsidiary to declare a default on such other Indebtedness or cause
the payment thereof to be accelerated or payable prior to its stated maturity,
(iii) any Investment in such Subsidiary made as a result of designating such
Subsidiary an Unrestricted Subsidiary will not violate the provisions of Section
1011, (iv) neither the Company nor any Restricted Subsidiary has a contract,
agreement, arrangement, understanding or obligation of any kind, whether written
or oral, with such Subsidiary other than those that might be obtained at the
time from Persons who are not Affiliates of the Company, (v) neither the Company
nor any Restricted Subsidiary
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has any obligation to subscribe for additional shares of Capital Stock or other
equity interest in such Subsidiary, or to maintain or preserve such Subsidiary's
financial condition or to cause such Subsidiary to achieve certain levels of
operating results, and (vi) such Unrestricted Subsidiary has at least one
director on its board of directors that is not a director or executive officer
of the Company or any of its Restricted Subsidiaries and has at least one
executive officer that is not an executive officer of the Company or any of its
Restricted Subsidiaries. Notwithstanding the foregoing, the Company may not
designate any of its Subsidiaries existing as of the Closing Date or any
successor to any of them as an Unrestricted Subsidiary and may not sell,
transfer or otherwise dispose of any properties or assets of any such Subsidiary
to an Unrestricted Subsidiary, other than in the ordinary course of business.
(b) The Board may designate any Unrestricted Subsidiary as a
Restricted Subsidiary; provided, however that (i) no Default or Event of Default
has occurred and is continuing following such designation and (ii) the Company
could, at the time of making such designation and giving such pro forma effect
as if such designation had been made at the beginning of the applicable four
quarter period, incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to the first paragraph of Section 1010
(treating any Indebtedness of such Unrestricted Subsidiary as the incurrence of
Indebtedness by a Restricted Subsidiary).
SECTION 1018. Limitation on Dividends and Other Payment
Restrictions Affecting Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction of any kind
on the ability of any Restricted Subsidiary to (a) pay dividends, in cash or
otherwise, or make any other distributions on or in respect of its Capital
Stock, (b) pay any Indebtedness owed to the Company or any other Restricted
Subsidiary, (c) make loans or advances to the Company or any other Restricted
Subsidiary or (d) transfer any of its properties or assets to the Company or any
other Restricted Subsidiary, except for such encumbrances or restrictions
existing under or by reason of:
(i) any agreement in effect on the Closing Date;
(ii) customary non-assignment provisions of any lease
governing a leasehold interest of the Company or any Restricted
Subsidiary;
(iii) the refinancing or successive refinancing of
Indebtedness incurred under the agreements in effect on the Closing
Date, so long as such encumbrances or restrictions are no more
restrictive than those contained in such original agreement;
(iv) any agreement or other instrument of a Person acquired by
the Company or any Restricted Subsidiary in existence at the time of
such acquisition (but not created
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in contemplation thereof), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person,
other than the Person, or the property or assets of the Person, so
acquired;
(v) purchase money obligations for acquired property permitted
under Section 1010 that impose restrictions of the nature described in
clause (d) above on the property so acquired;
(vi) any agreement for the sale of a Restricted Subsidiary or
an asset that restricts distributions by that Restricted Subsidiary or
transfers of such asset pending its sale;
(vii) secured Indebtedness otherwise permitted to be incurred
pursuant to Section 1014 that limits the right of the debtor to dispose
of the assets securing such Indebtedness;
(viii) restrictions on cash or other deposits or net worth
imposed by leases entered into in the ordinary course of business; and
(ix) Non-Recourse Indebtedness of any Permitted Joint Venture
permitted to be incurred under the Indenture.
SECTION 1019. Waiver of Certain Covenants.
The Company or any Subsidiary Guarantor may omit in any
particular instance to comply with any term, provision or condition set forth in
Section 803 or Sections 1007 through 1022, inclusive, if before or after the
time for such compliance the Holders of at least a majority in principal amount
of the Outstanding Notes (and Additional Notes, if any), by Act of such Holders,
waive such compliance in such instance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
SECTION 1020. Payment for Consent.
Neither the Company nor any of its Restricted Subsidiaries
shall, directly or indirectly, pay or cause to be paid any consideration,
whether by way of interest, fee or otherwise, to any Holder for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is offered to be paid
or is paid to all Holders that consent, waive or agree to amend in the time
frame set forth in the solicitation documents relating to such consent, waiver
or agreement.
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SECTION 1021. Limitation on Layering Debt.
The Company and each Subsidiary Guarantor will not incur,
create, issue, assume, guarantee or otherwise become liable for any Indebtedness
or guarantee, as applicable, that is subordinate or junior in right of payment
to any Senior Indebtedness and senior in any respect in right of payment to the
Notes or such Subsidiary Guarantor's Subsidiary Guarantee, respectively.
SECTION 1022. Limitation on Guarantees of Indebtedness by
Restricted Subsidiaries.
The Company shall not permit any Restricted Subsidiary that is
not a Subsidiary Guarantor, directly or indirectly, to guarantee, assume or in
any other manner become liable for the payment of any Indebtedness of the
Company or any Indebtedness of any other Restricted Subsidiary, unless (a) such
Restricted Subsidiary simultaneously executes and delivers a supplemental
indenture providing for a guarantee of payment of the Notes by such Restricted
Subsidiary on a senior subordinated basis and (b) with respect to any guarantee
of Subordinated Indebtedness by a Restricted Subsidiary, any such guarantee is
subordinated to such Restricted Subsidiary's guarantee with respect to the Notes
at least to the same extent as such Subordinated Indebtedness is subordinated to
the Notes, provided, however, that the foregoing provision will not be
applicable to any guarantee by any Restricted Subsidiary that existed at the
time such Person became a Restricted Subsidiary and was not incurred in
connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary.
Any guarantee by a Restricted Subsidiary of the Notes pursuant
to the preceding paragraph may provide by its terms that it will be
automatically and unconditionally released and discharged upon (i) any sale,
exchange or transfer to any Person not an Affiliate of the Company of all of the
Company's and the Restricted Subsidiaries' Capital Stock in, or all or
substantially all the assets of, such Restricted Subsidiary (which sale,
exchange or transfer is not prohibited by this Indenture) or (ii) the release or
discharge of the guarantee that resulted in the creation of such guarantee of
the Notes, except a discharge or release by or as a result of payment under such
guarantee.
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. Right of Redemption.
(a) The Notes may be redeemed at the option of the Company, at
any time as a whole or from time to time in part, at any time on or after June
15, 2003, on not less than 30 nor more than 60 days' prior notice to the Holders
at the following Redemption Prices (expressed as percentages of principal
amount) together with accrued and unpaid interest, if any, to the
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Redemption Date (subject to the right of holders of record in the relevant
record date to receive interest due on an interest payment date), if redeemed
during the 12-month period beginning on June 15 of the years indicated below.
Redemption
Year Price
2003.......................................................104.8125%
2004 ......................................................103.2083%
2005 .....................................................101.6042%
2006 and thereafter ......................................100.0000%
(b) In addition, at any time or from time to time on or before
June 15, 2001, the Company may redeem, on one or more occasions, up to 35% of
the sum of (i) the initial aggregate principal amount of the Notes and (ii) the
initial aggregate principal amount of any Additional Notes on one or more
occasions with the net proceeds of one or more Equity Offerings at a redemption
price equal to 109.625% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the Redemption Date (subject to the right of Holders of
record on the relevant record date to receive interest due on an Interest
Payment Date that is on or prior to the Redemption Date); provided that,
immediately after giving effect to such redemption, at least 65% of the sum of
(x) the initial aggregate principal amount of the Notes and (y) the initial
aggregate principal amount of any Additional Notes remains outstanding; provided
further that such redemptions shall occur within 60 days of the date of closing
of each Equity Offering.
(c) The Company is not required to make mandatory redemption
or sinking fund payments with respect to the Notes.
SECTION 1102. Applicability of Article.
Redemption of Notes 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 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Notes to be redeemed and shall deliver to the Trustee
such documentation and records as shall enable the Trustee to select the Notes
to be redeemed pursuant to Section 1104.
SECTION 1104. Selection by Trustee of Notes to Be Redeemed.
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If less than all the Notes (or Additional Notes, if any) are
to be redeemed, selection of Notes for redemption shall be made by the Trustee
in compliance with the requirements of the principal national securities
exchange, if any, on which the Notes are listed, or, if the Notes are not so
listed, by such method as the Trustee shall deem fair and appropriate and which
may provide for the selection for redemption of portions of the principal of
Notes; provided, however, that no such partial redemption shall reduce the
portion of the principal amount of a Note not redeemed to less than $1,000. The
Company shall notify the Trustee of any national securities exchange on which
the Notes may be listed.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Notes 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 Notes shall relate,
in the case of any Note redeemed or to be redeemed only in part, to the portion
of the principal amount of such Note which has been or is to be redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given in the manner provided for
in Section 107 not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Notes to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to
the Redemption Date payable as provided in Section 1107, if any,
(3) if less than all Outstanding Notes are to be redeemed, the
identification (and, in the case of a partial redemption, the principal
amounts) of the particular Notes to be redeemed,
(4) in case any Note is to be redeemed in part only, the
notice which relates to such Note shall state that on and after the
Redemption Date, upon surrender of such Note, the Holder will receive,
without charge, a new Note or Notes 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 1107) will become due and
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payable upon each such Note, or the portion thereof, to be redeemed,
and that interest thereon will cease to accrue on and after said date,
(6) the place or places, if applicable, where such Notes are
to be surrendered for payment of the Redemption Price and accrued
interest, if any, and
(7) the CUSIP number.
Notice of redemption of Notes to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money sufficient to pay the Redemption Price of, and accrued interest on, all
the Notes which are to be redeemed on that date.
SECTION 1107. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Notes
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 Notes
shall cease to bear interest. Upon surrender of any such Note for redemption in
accordance with said notice, such Note shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Notes, or one or more Predecessor Notes, registered as such at the close of
business on the relevant Regular Record Dates according to their terms and the
provisions of Section 309.
If any Note 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
Notes.
SECTION 1108. Notes Redeemed in Part.
Any Note which is to be redeemed only in part shall be
surrendered at the office or agency of the Company maintained for such purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such
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Holder's attorney duly authorized in writing), and the Company shall execute,
and the Trustee shall authenticate and deliver to the Holder of such Note
without service charge, a new Note or Notes, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Note so surrendered.
ARTICLE TWELVE
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company Option to Effect Legal Defeasance or
Covenant Defeasance.
The Company may, at its option and at any time, with respect
to the Notes, elect to have either Section 1202 or Section 1203 be applied to
all Outstanding Notes (and Additional Notes, if any) upon compliance with the
conditions set forth below in this Article Twelve.
SECTION 1202. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 1201 of the option
applicable to this Section 1202, the Company and the Subsidiary Guarantors shall
be deemed to have been discharged from its obligations with respect to all
Outstanding Notes (and Additional Notes, if any) and the Subsidiary Guarantees
on the date the conditions set forth in Section 1204 are satisfied (hereinafter,
"Legal Defeasance"). For this purpose, such Legal Defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Notes (and Additional Notes, if any) and the
Subsidiary Guarantees, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1205 and the other Sections of this Indenture
referred to in (A) and (B) below, and to have satisfied all its other
obligations under such Notes and this Indenture insofar as such Notes are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of Outstanding Notes (and Additional Notes, if any) to receive payments
in respect of the principal of (and premium, if any, on) and interest on such
Notes when such payments are due from the trust described in Section 1204, (B)
the Company's obligations under Sections 304, 305, 308, 1002 and 1003, (C) the
rights, powers, trusts, duties and immunities of the Trustee and (D) this
Article Twelve. Subject to compliance with this Article Twelve, the Company may
exercise its option under this Section 1202 notwithstanding the prior exercise
of its option under Section 1203 with respect to the Notes.
SECTION 1203. Covenant Defeasance.
Upon the Company's exercise under Section 1201 of the option
applicable to this
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Section 1203, the Company and any Subsidiary Guarantor shall be released from
its obligations under any covenant contained in Section 801 and Section 803 and
in Sections 1006 through 1018 and Sections 1021 and 1022 with respect to the
Outstanding Notes (and Additional Notes, if any) on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"),
and the Notes shall thereafter be deemed not to be "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such Covenant Defeasance means that, with respect to the Outstanding
Notes (and Additional Notes, if any), the Company and any Subsidiary Guarantor
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or an Event of Default under Sections 501(c) and (d) but, except as specified
above, the remainder of this Indenture and such Notes shall be unaffected
thereby.
SECTION 1204. Conditions to Legal Defeasance or Covenant
Defeasance.
The following shall be the conditions to application of either
Section 1202 or Section 1203 to the Outstanding Notes (and Additional Notes, if
any):
(a) the Company must irrevocably deposit or cause to be
deposited with the Trustee, as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders, money in an amount, or U.S. Government Obligations that
through the scheduled payment of principal and interest thereon will
provide money in an amount, or a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public
accountants, to pay and discharge the principal of (and premium, if
any, on) and interest on the Outstanding Notes (and Additional Notes,
if any) at maturity (or upon redemption, if applicable) of such
principal or installment of interest;
(b) no Default or Event of Default has occurred and is
continuing on the date of such deposit or, insofar as an event of
bankruptcy under Section 501(h) is concerned, at any time during the
period ending on the 91st day after the date of such deposit;
(c) such legal defeasance or covenant defeasance may not
result in a breach or violation of, or constitute a default under, this
Indenture or any material agreement or instrument to which the Company
or any Subsidiary Guarantor is a party or by which it is bound;
(d) in the case of legal defeasance, the Company must deliver
to the Trustee an Opinion of Counsel stating that the Company has
received from, or there has been published by, the Internal Revenue
Service a ruling, or, since the Closing Date, there has been a change
in applicable federal income tax law, to the effect, and based thereon
such
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opinion must confirm, that the Holders of the Outstanding Notes
will not recognize income, gain or loss for federal income tax purposes
as a result of such legal defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such legal defeasance had not
occurred;
(e) in the case of covenant defeasance, the Company must have
delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such covenant
defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred; and
(f) the Company must have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the legal
defeasance or the covenant defeasance, as the case may be, have been
complied with.
SECTION 1205. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 1205, the "Trustee") pursuant to Section 1204 in
respect of the Outstanding Notes (and Additional Notes, if any) shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Governmental
Obligations deposited pursuant to Section 1204 or the principal and interest
received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
Outstanding Notes (and Additional Notes, if any).
Anything in this Article Twelve to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it as
provided in Section 1204 which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance, as applicable, in accordance with this Article.
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SECTION 1206. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any
money in accordance with Section 1205 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Notes shall be revived and reinstated as though no deposit had occurred pursuant
to Section 1202 or 1203, as the case may be, until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1205; provided, however, that if the Company makes any payment of principal of
(or premium, if any) or interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE THIRTEEN
GUARANTEES
SECTION 1301. Subsidiary Guarantees.
Each Subsidiary Guarantor hereby jointly and severally, fully,
unconditionally and irrevocably guarantees the Notes and obligations of the
Company hereunder and thereunder, and guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee on behalf of such
Holder, that: (a) the principal of (and premium, if any) and interest on the
Notes will be paid in full when due, whether at Stated Maturity, by
acceleration, call for redemption or otherwise (including, without limitation,
the amount that would become due but for the operation of the automatic stay
under Section 362(a) of the Federal Bankruptcy Code), together with interest on
the overdue principal, if any, and interest on any overdue interest, to the
extent lawful, and all other obligations of the Company to the Holders or the
Trustee hereunder or thereunder will be paid in full or performed, all in
accordance with the terms hereof and thereof; and (b) in case of any extension
of time of payment or renewal of any Notes or of any such other obligations, the
same will be paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at Stated Maturity, by acceleration or
otherwise, subject, however, in the case of clauses (a) and (b) above, to the
limitations set forth in Section 1306 hereof. Each of the Subsidiary Guarantees
shall be a guarantee of payment and not of collection.
Each Subsidiary Guarantor hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise
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constitute a legal or equitable discharge or defense of a Subsidiary Guarantor.
Each Subsidiary Guarantor hereby waives the benefits of
diligence, presentment, demand for payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company or any other Person, protest, notice and
all demands whatsoever and covenants that the Subsidiary Guarantee of such
Subsidiary Guarantor will not be discharged as to any Note except by complete
performance of the obligations contained in such Note and such Subsidiary
Guarantee or as provided for in this Indenture. Each of the Subsidiary
Guarantors hereby agrees that, in the event of a default in payment of principal
(or premium, if any) or interest on such Note, whether at its Stated Maturity,
by acceleration, call for redemption, purchase or otherwise, legal proceedings
may be instituted by the Trustee on behalf of, or by, the Holder of such Note,
subject to the terms and conditions set forth in this Indenture, directly
against each of the Subsidiary Guarantors to enforce such Subsidiary Guarantor's
Subsidiary Guarantee without first proceeding against the Company or any other
Subsidiary Guarantor. Each Subsidiary Guarantor agrees that if, after the
occurrence and during the continuance of an Event of Default, the Trustee or any
of the Holders are prevented by applicable law from exercising their respective
rights to accelerate the maturity of the Notes, to collect interest on the
Notes, or to enforce or exercise any other right or remedy with respect to the
Notes, such Subsidiary Guarantor will pay to the Trustee for the account of the
Holders, upon demand therefor, the amount that would otherwise have been due and
payable had such rights and remedies been permitted to be exercised by the
Trustee or any of the Holders.
If any Holder or the Trustee is required by any court or
otherwise to return to the Company or any Subsidiary Guarantor, or any
custodian, trustee, liquidator or other similar official acting in relation to
either the Company or any Subsidiary Guarantor, any amount paid by any of them
to the Trustee or such Holder, the Subsidiary Guarantee of each of the
Subsidiary Guarantors, to the extent theretofore discharged, shall be reinstated
in full force and effect. Each Subsidiary Guarantor further agrees that, as
between each Subsidiary Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Five hereof for the purposes of
the Subsidiary Guarantee of such Subsidiary Guarantor, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any acceleration of such
obligations as provided in Article Five hereof, such obligations (whether or not
due and payable) shall forthwith become due and payable by each Subsidiary
Guarantor for the purpose of the Subsidiary Guarantee of such Subsidiary
Guarantor.
SECTION 1302. Execution and Delivery of Subsidiary Guarantee.
To further evidence the Subsidiary Guarantee set forth in
Section 1301, each Subsidiary Guarantor hereby agrees that such Subsidiary
Guarantee, substantially in the form included in Exhibit C of this Indenture,
shall be endorsed on each Note authenticated and delivered by the Trustee. Such
Subsidiary Guarantee shall be executed by manual or facsimile signature on
behalf of each Subsidiary Guarantor by its Chairman, any Vice Chairman, its
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President or a Vice President and attested by its Secretary or Assistant
Secretary, and shall have been duly authorized by all requisite corporate
action. The validity and enforceability of any Subsidiary Guarantee shall not be
affected by the fact that it is not affixed to any particular Note.
Each Subsidiary Guarantor hereby agrees that its respective
Subsidiary Guarantee set forth in Section 1301 shall remain in full force and
effect notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of any
Subsidiary Guarantee set forth in this Indenture on behalf of the Subsidiary
Guarantors.
SECTION 1303. Severability.
In case any provision of any Subsidiary Guarantee shall be
invalid, illegal or unenforceable, the validity, legality, and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1304. Seniority of Subsidiary Guarantees.
The obligations of each Subsidiary Guarantor to the Holders of
Notes and to the Trustee pursuant to such Subsidiary Guarantor's Subsidiary
Guarantee and this Indenture are unsecured senior subordinated obligations of
such Subsidiary Guarantor ranking pari passu in right of payment with all
existing and future senior subordinated obligations of such Subsidiary
Guarantor.
SECTION 1305. Limitation of Subsidiary Guarantor's Liability.
Each Subsidiary Guarantor and by its acceptance hereof each
Holder confirms that it is the intention of all such parties that the guarantee
by each Subsidiary Guarantor pursuant to its Subsidiary Guarantee not constitute
a fraudulent transfer or conveyance for purposes of the Federal Bankruptcy Code,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar federal or state law or the provisions of its local law relating to
fraudulent transfer or conveyance. To effectuate the foregoing intention, the
Holders and such Subsidiary Guarantor hereby irrevocably agree that the
obligations of such Subsidiary Guarantor under its Subsidiary Guarantee shall be
limited to the maximum amount that will not, after giving effect to all other
contingent and fixed liabilities of such Subsidiary Guarantor 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 such other Subsidiary
Guarantor under its Subsidiary Guarantee or pursuant to Section 1306 hereof,
result in the obligations of such Subsidiary Guarantor under its Subsidiary
Guarantee constituting such fraudulent transfer or conveyance.
SECTION 1306. Contribution.
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In order to provide for just and equitable contribution among
the Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in
the event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under a Subsidiary Guarantee, such Funding Guarantor shall
be entitled to a contribution from all other Subsidiary Guarantors in a pro rata
amount based on the Adjusted Net Assets of each Subsidiary Guarantor (including
the Funding Guarantor) for all payments, damages and expenses incurred by that
Funding Guarantor in discharging the Company's obligations with respect to the
Notes or any other Subsidiary Guarantor's obligations with respect to the
Subsidiary Guarantee of such Subsidiary Guarantor. "Adjusted Net Assets" of such
Subsidiary Guarantor at any date shall mean the lesser of (x) the amount by
which the fair value of the property of such Subsidiary Guarantor exceeds the
total amount of liabilities, including, without limitation, contingent
liabilities (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date), but excluding liabilities under the
Subsidiary Guarantee of such Subsidiary Guarantor at such date and (y) the
amount by which the present fair salable value of the assets of such Subsidiary
Guarantor at such date exceeds the amount that will be required to pay the
probable liability of such Subsidiary Guarantor on its debts (after giving
effect to all other fixed and contingent liabilities incurred or assumed on such
date), excluding debt in respect of the Subsidiary Guarantee of such Subsidiary
Guarantor, as they become absolute and matured.
SECTION 1307. Release of a Subsidiary Guarantor.
(a) A Subsidiary Guarantor will be deemed automatically and
unconditionally released and discharged from all of its obligations under its
Subsidiary Guarantee without any further action on the part of the Trustee or
any Holder of the Notes upon a sale or other disposition to a Person not an
Affiliate of the Company of all of the Capital Stock of, or all or substantially
all of the assets of, such Subsidiary Guarantor, by way of merger, consolidation
or otherwise, which transaction is carried out in accordance with Section 801
and 1016, so long as (a) no Default or Event of Default shall have occurred and
be continuing at the time of, or would occur after giving effect on a pro forma
basis to, such release and (b) the Company is permitted to incur at least $1.00
of additional Indebtedness (other than Permitted Indebtedness) pursuant to the
Fixed Charge Coverage Ratio test set forth in subsection (a) of Section 1010 on
the date on which such release occurs; provided that any such termination shall
occur (x) only to the extent that all obligations of such Subsidiary Guarantor
under all of its guarantees of, and under all of its pledges of assets or other
security interests which secure any Indebtedness of the Company shall also
terminate upon such sale, disposition or release and (y) only if the Trustee is
furnished with written notice of such release together with an Officers'
Certificate from such Subsidiary Guarantor to the effect that all of the
conditions to release in this Section 1307(a) have been satisfied.
(b) Any Subsidiary Guarantor that is designated by the Board
as an Unrestricted Subsidiary in accordance with the terms of this Indenture
may, at such time, at the option of the Board, be released and relieved of its
obligations under its Subsidiary Guarantee.
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The Trustee shall deliver an appropriate instrument evidencing such release upon
receipt of a Company Request accompanied by an Officers' Certificate certifying
as to the compliance with this Section 1307. Any Subsidiary Guarantor not so
released shall remain liable for the full amount of principal of and interest on
the Notes as provided in its Subsidiary Guarantee.
(c) Concurrently with the Legal Defeasance of the Notes under
Section 1202 hereof, or the Covenant Defeasance of the Notes under Section 1203
hereof, the Subsidiary Guarantors shall be released from all their obligations
under their Subsidiary Guarantees under this Article Thirteen.
SECTION 1308. Benefits Acknowledged.
Each Subsidiary Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated by
this Indenture and that its guarantee and waivers pursuant to its Subsidiary
Guarantee are knowingly made in contemplation of such benefits.
SECTION 1309. Issuance of Subsidiary Guarantees by Certain
New Restricted Subsidiaries.
The Company shall provide to the Trustee, on the date that any
Person (other than a Foreign Subsidiary or Permitted Joint Venture) becomes a
Restricted Subsidiary, a supplemental indenture to this Indenture, executed by
such new Restricted Subsidiary, providing for a full and unconditional guarantee
on a senior subordinated basis by such new Restricted Subsidiary of the
Company's obligations under the Notes and this Indenture to the same extent as
that set forth in this Indenture.
ARTICLE FOURTEEN
SUBORDINATION
SECTION 1401. Notes Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder, by its
acceptance thereof, likewise covenants and agrees, for the benefit of the
Holders, from time to time, of Senior Indebtedness that, to the extent and in
the manner hereinafter set forth in this Article, the Indebtedness represented
by the Notes and the payment of the principal of (and premium, if any) and
interest on each and all of the Notes are hereby expressly made subordinate and
subject in right of payment as provided in this Article to the prior payment in
full in cash of all Senior Indebtedness, whether outstanding on the Closing Date
or thereafter incurred; provided, however, that the Notes, the Indebtedness
represented thereby and the payment of the principal of (and premium, if any)
and interest on the Notes in all respects shall rank equally with, or prior
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to, all existing and future unsecured indebtedness (including, without
limitation, Indebtedness) of the Company that is subordinated to Senior
Indebtedness.
SECTION 1402. Payment over by the Company of Proceeds upon
Dissolution, etc.
Upon any distribution to creditors of the Company in a
liquidation or dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property, an assignment for the benefit of creditors or any marshaling of the
Company's assets and liabilities,
(1) the holders of Senior Indebtedness of the Company shall be
entitled to receive payment in full in cash or Cash Equivalents of all
Obligations due in respect of such Senior Indebtedness (including
interest after the commencement of any such proceeding at the rate
specified in the applicable Senior Indebtedness) before the Holders
will be entitled to receive any payment in respect of any Obligations
with respect to the Notes, and until all Obligations with respect to
Senior Indebtedness are paid in full in cash or Cash Equivalents, any
distribution to which the Holders would be entitled shall be made to
the holders of Senior Indebtedness (except that Holders may receive
securities that are subordinated at least to the same extent as the
Notes to Senior Indebtedness ("Permitted Junior Securities") and any
securities issued in exchange for Senior Indebtedness and Holders may
recover payments made from the trust described in Section 1204); and
(2) in the event that, notwithstanding the foregoing
provisions of this Section, the Trustee or any Holder shall have
received any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, in respect
of principal of (and premium, if any) or interest on the Notes before
all Senior Indebtedness is paid in full or payment thereof provided
for (such provision with respect to Senior Indebtedness under the
Amended Credit Agreement being satisfactory to each Lender), and if
such fact shall at or prior to the time of such payment or
distribution, have been made known to the Trustee or such Holder, as
the case may be, by the Agent Bank, then and in such event such
payment or distribution (other than a payment or distribution in the
form of Permitted Junior Securities or out of the trust described in
Section 1204) shall be paid over or delivered forthwith to the trustee
in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of the
Company for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the Company
following the conveyance,
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transfer or lease of its properties and assets substantially as an entirety to
another Person upon the terms and conditions set forth in Article Eight shall
not be deemed a dissolution, winding up, liquidation, reorganization, assignment
for the benefit of creditors or marshaling of assets and liabilities of the
Company for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance, transfer or lease such properties and assets substantially as an
entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance, transfer or lease, comply with the conditions set forth in Article
Eight.
SECTION 1403. Suspension of Payment on Notes When Senior
Indebtedness of the Company in Default.
(a) Unless Section 1402 shall be applicable, the Company shall
not make any payment upon or in respect of the Notes (except in such Permitted
Junior Securities or from the trust described in Section 1204) if
(i) a default in the payment of the principal of,
premium, if any, or interest on Designated Senior Indebtedness
occurs and is continuing beyond any applicable period of grace
(a "Payment Event of Default") which is notified to the
Trustee in writing from the Company, the Agent or any other
representative of holders of Designated Senior Indebtedness,
or
(ii) any Non-payment Event of Default occurs and is
continuing with respect to Designated Senior Indebtedness
which permits holders of the Designated Senior Indebtedness as
to which such default relates to accelerate its maturity and
the Trustee receives a notice of such default (a "Payment
Blockage Notice") from the Agent Bank or the holders or the
representative of the holders of any Designated Senior
Indebtedness.
(b) Payments on the Notes may and shall be resumed (a) in the
case of a Payment Event of Default, upon the date on which such default is cured
or waived and (b) in case of a Non-payment Event of Default, the earlier of the
date on which such Non-payment Event of Default is cured or waived or 179 days
after the date on which the applicable Payment Blockage Notice is received
unless the maturity of any Designated Senior Indebtedness has been accelerated.
No new period of payment blockage may be commenced by a Payment Blockage Notice
unless and until (i) 360 days have elapsed since the first day of the
effectiveness of the immediately prior Payment Blockage Notice and (ii) all
scheduled payments of principal, premium, if any, and interest on the Notes that
have come due have been paid in full in cash. No Non-payment Event of Default
that existed or was continuing on the date of delivery of any Payment Blockage
Notice to the Trustee shall be, or be made, the basis for a subsequent Payment
Blockage Notice, unless such default has been cured or waived for a period of
not less than 90 days.
SECTION 1404. Payment Over by Subsidiary Guarantors of
Proceeds Upon Dissolution, etc.
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Upon any distribution to creditors of any Subsidiary Guarantor
in a liquidation or dissolution of such Subsidiary Guarantor or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to such
Subsidiary Guarantor or its property, an assignment for the benefit of creditors
or any marshaling of such Subsidiary Guarantor's assets and liabilities,
(1) the holders of Senior Indebtedness of such Subsidiary
Guarantor shall be entitled to receive indefeasible payment in full in
cash or cash equivalents of all Obligations due in respect of such
Senior Indebtedness (including interest after the commencement of any
such proceeding at the rate specified in the applicable Senior
Indebtedness) before the Holders will be entitled to receive any
payment with respect to the respective Subsidiary Guarantee, and until
all Obligations with respect to Senior Indebtedness of such Subsidiary
Guarantor and Senior Indebtedness of the Company are paid in full in
cash or cash equivalents, any distribution to which the Holders would
be entitled shall be made to the holders of such Senior Indebtedness
(except that Holders may receive (i) Capital Stock of such Subsidiary
Guarantor (other than Disqualified Stock) and (ii) Permitted Junior
Securities and any securities issued in exchange for such Senior
Indebtedness); and
(2) in the event that, notwithstanding the foregoing
provisions of this Section, the Trustee or any Holder shall have
received any payment or distribution of assets of such Subsidiary
Guarantor of any kind or character, whether in cash, property or
securities, in respect of principal of (and premium, if any) or
interest on the Notes before all Senior Indebtedness of such Subsidiary
Guarantor is paid in full or payment thereof provided for (such
provision with respect to Senior Indebtedness under the Amended Credit
Agreement being satisfactory to each Lender), and if such fact shall at
or prior to the time of such payment or distribution, have been made
known to the Trustee or such Holder, as the case may be, by the Agent
Bank, then and in such event such payment or distribution (other than
a payment or distribution in the form of Permitted Junior Securities)
shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other Person making payment or distribution of assets of such
Subsidiary for application to the payment of all Senior Indebtedness
of such Subsidiary Guarantor remaining unpaid, to the extent necessary
to pay all such Senior Indebtedness in full, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness.
The consolidation of any Subsidiary Guarantor with, or the
merger of any Subsidiary Guarantor into, another Person or the liquidation or
dissolution of any Subsidiary Guarantor following the conveyance, transfer or
lease of its properties and assets substantially as an entirety to another
Person upon the terms and conditions set forth in Article Eight shall not be
deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of
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creditors or marshaling of assets and liabilities of such
Subsidiary Guarantor for the purposes of this Section if the Person formed by
such consolidation or into which such Subsidiary Guarantor is merged or the
Person which acquires by conveyance, transfer or lease such properties and
assets substantially as an entirety, as the case may be, shall, as a part of
such consolidation, merger, conveyance, transfer or lease, comply with the
conditions set forth in Article Eight.
SECTION 1405. Suspension of Payment on Subsidiary Guarantees
When Senior Indebtedness of Subsidiary Guarantor in Default.
(a) Unless Section 1404 shall be applicable, a Subsidiary
Guarantor shall not make any payment upon or in respect of such Subsidiary
Guarantor's Subsidiary Guarantee (except in such Permitted Junior Securities) if
(i) a Payment Event of Default on Designated Senior
Indebtedness of such Subsidiary Guarantor or Designated Senior
Indebtedness of the Company occurs and is continuing beyond
any applicable period of grace which is notified to the
Trustee in writing from such Subsidiary Guarantor, the Agent
or any other representative of holders of Designated Senior
Indebtedness, or
(ii) any Non-payment Event of Default occurs and is
continuing with respect to Designated Senior Indebtedness of
such Subsidiary Guarantor or Designated Senior Indebtedness of
the Company which permits holders of the Designated Senior
Indebtedness of such Subsidiary Guarantor or Designated Senior
Indebtedness of the Company as to which such default relates
to accelerate its maturity and the Trustee receives a Payment
Blockage Notice from the Agent Bank or the holders or the
representative of the holders of such Designated Senior
Indebtedness.
(b) Payments on the Subsidiary Guarantees may and shall be
resumed (a) in the case of a Payment Event of Default, upon the date on which
such default is cured or waived and (b) in case of a Non-payment Event of
Default, the earlier of the date on which such Nonpayment Event of Default is
cured or waived or 179 days after the date on which the applicable Payment
Blockage Notice is received, unless the maturity of any Designated Senior
Indebtedness has been accelerated. No new period of payment blockage may be
commenced by a Payment Blockage Notice unless and until (i) 360 days have
elapsed since the first day of the effectiveness of the immediately prior
Payment Blockage Notice and (ii) all scheduled payments of principal, premium,
if any, and interest on the Notes that have become due and payable have been
paid in full. No Non-payment Event of Default that existed or was continuing on
the date of delivery of any Payment Blockage Notice to the Trustee shall be, or
be made, the basis for a subsequent Payment Blockage Notice, unless such default
has been cured or waived for a period of not less than 90 days.
SECTION 1406. Payment Permitted If No Default.
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Nothing contained in this Article or elsewhere in this
Indenture, in any of the Notes or in any Subsidiary Guarantee shall prevent the
Company or any Subsidiary Guarantors, as applicable, at any time except during
the pendency of any case, proceeding, dissolution, liquidation or other winding
up, assignment for the benefit of creditors or other marshaling of assets and
liabilities of the Company or any Subsidiary Guarantor referred to in Section
1402 or 1404 or under the conditions described in Section 1403 or 1405, from
making payments at any time of principal of (and premium, if any, on) or
interest on the Notes or under a Subsidiary Guarantee, as applicable.
SECTION 1407. Subrogation to Rights of Holders of Senior
Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
Holders shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company or any Subsidiary Guarantor which by its express
terms is subordinated to Senior Indebtedness of the Company or such Subsidiary
Guarantor to the same extent as the Notes or the Subsidiary Guarantees are
subordinated and which is entitled to like rights of subrogation) to the rights
of the holders of such Senior Indebtedness to receive payments and distributions
of cash, property and securities applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest on the Notes shall be paid in
full. For purposes of such subrogation, no payments or distributions to the
holders of Senior Indebtedness of any cash, property or securities to which the
Holders or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders or the Trustee, shall, as among the
Company, the Subsidiary Guarantors, their respective creditors other than
holders of Senior Indebtedness, and the Holders of the Notes, be deemed to be a
payment or distribution by the Company or any Subsidiary Guarantor to or on
account of the Senior Indebtedness.
SECTION 1408. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the Notes on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Notes is
intended to or shall (a) impair, as between the Company, or any Subsidiary
Guarantor as applicable, and the Holders, the obligation of the Company or such
Subsidiary Guarantor, which is absolute and unconditional, to pay to the Holders
the principal of (and premium, if any) and interest on the Notes as and when the
same shall become due and payable in accordance with their terms; or (b) affect
the relative rights against the Company or any Subsidiary Guarantor of the
Holders and creditors of the Company or such Subsidiary Guarantor other than the
holders of Senior Indebtedness; or (c) prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of Senior Indebtedness.
SECTION 1409. Trustee to Effectuate Subordination.
96
Each Holder of a Note by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1410. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or any Subsidiary Guarantor, or by any act or failure to act, in
good faith, by any such holder, or by any non-compliance by the Company or any
Subsidiary Guarantor with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
(b) Without in any way limiting the generality of paragraph
(a) of this Section, the holders of Senior Indebtedness may, at any time and
from time to time, without the consent of or notice to the Trustee or the
Holders of the Notes, without incurring responsibility to the Holders and
without impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders to the holders of Senior Indebtedness, do
any one or more of the following: (1) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (2) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Indebtedness; (3)
release any Person liable in any manner for the collection of Senior
Indebtedness; and (4) exercise or refrain from exercising any rights against the
Company, any Subsidiary Guarantor and any other Person.
SECTION 1411. Notice to Trustee.
(a) The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit the making of any
payment to or by the Trustee in respect of the Notes. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the Notes,
unless and until the Trustee shall have received written notice thereof from the
Company, the Agent or a holder of Senior Indebtedness or from any trustee,
fiduciary or agent therefor; and, prior to the receipt of any such written
notice, the Trustee, subject to TIA Sections 315(a) through 315(d), shall be
entitled in all respects to assume that no such facts exist; provided, however,
that, if the Trustee shall not have received the notice provided for in this
Section at least three Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of (and premium, if any) or interest on
any Note), then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such money and to apply
the same to the
97
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within three Business Days
prior to such date.
(b) Subject to TIA Sections 315(a) through 315(d), the Trustee
shall be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee, fiduciary or agent therefor). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 1412. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to TIA Sections 315(a) through
315(d), and the Holders shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
SECTION 1413. Rights of Trustee As a Holder of Senior
Indebtedness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder. Nothing in this Article shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 607.
SECTION 1414. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been
98
appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1413 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 1415. No Suspension of Remedies.
Nothing contained in this Article shall limit the right of the
Trustee or the Holders to take any action to accelerate the maturity of the
Notes pursuant to Article Five or to pursue any rights or remedies hereunder or
under applicable law, except as provided in Article Five.
SECTION 1416. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary,
payments from cash or the proceeds of U.S. Government Obligations held in trust
under Article Twelve hereof by the Trustee (or other qualifying trustee) and
which were deposited in accordance with the terms of Article Twelve hereof and
not in violation of Section 1403 hereof for the payment of principal of (and
premium, if any) and interest on the Notes shall not be subordinated to the
prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article Fourteen, and none of the Holders shall be obligated to
pay over any such amount to the Company or any holder of Senior Indebtedness or
any other creditor of the Company.
SECTION 1417. Trustee Not Fiduciary for Holders of Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness and shall not be liable to any such holders
if it shall in good faith mistakenly pay over or distribute to Holders or to the
Company or to any other Person cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
This Indenture may be signed in any number of counterparts
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
99
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, as of the day and year first above written.
INSIGHT HEALTH SERVICES CORP.
By:
--------------------------------------------
Name:
Title:
INSIGHT HEALTH CORP.
By:
--------------------------------------------
Name:
Title:
RADIOLOGY SERVICES CORP.
By:
--------------------------------------------
Name:
Title:
OPEN MRI, INC.
By:
--------------------------------------------
Name:
Title:
MAXUM HEALTH CORP.
By:
--------------------------------------------
Name:
Title:
100
SIGNAL MEDICAL SERVICES, INC.
By:
--------------------------------------------
Name:
Title:
QUEST FINANCIAL SERVICES, INC.
By:
--------------------------------------------
Name:
Title:
RADIOSURGERY CENTERS, INC.
By:
--------------------------------------------
Name:
Title:
MAXUM HEALTH SERVICES CORP.
By:
--------------------------------------------
Name:
Title:
MTS ENTERPRISES, INC.
By:
--------------------------------------------
Name:
Title:
DIAGNOSTEMPS, INC.
101
By:
--------------------------------------------
Name:
Title:
MAXUM HEALTH SERVICES OF
NORTH TEXAS, INC.
By:
--------------------------------------------
Name:
Title:
MAXUM HEALTH SERVICES OF
ARLINGTON, INC.
By:
--------------------------------------------
Name:
Title:
MAXUM HEALTH SERVICES OF DALLAS, INC.
By:
--------------------------------------------
Name:
Title:
NDDC, INC.
By:
--------------------------------------------
Name:
Title:
DIAGNOSTIC SOLUTIONS CORP.
102
By:
--------------------------------------------
Name:
Title:
MISSISSIPPI MOBILE TECHNOLOGY, INC.
By:
--------------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
N.A., as Trustee
By:
--------------------------------------------
Name:
Title:
Exhibit A
[FACE OF NOTE]
INSIGHT HEALTH SERVICES CORP.
9 5/8% [Series B]** Senior Subordinated Note Due 2008
CUSIP [_________]
No. [_______] $100,000,000
INSIGHT HEALTH SERVICES CORP., a Delaware corporation (the
"Company", which term includes any successor under the Indenture hereinafter
referred to), for value received, promises to pay to [___________], or its
registered assigns, the principal sum of ONE HUNDRED MILLION DOLLARS
($100,000,000), on June 15, 2008.
[Initial Interest Rate: 9 5/8% per annum.]*
[Interest Rate: 9 5/8% per annum.]**
Interest Payment Dates: June 15 and December 15 of each year
commencing December 15, 1998.
Regular Record Dates: June 1 and December 1 of each year.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
- ----------
* Include only for Initial Notes.
** Include only for Exchange Notes.
A-1
IN WITNESS WHEREOF, the Company has caused this Note to be
executed.
Date: June , 1998 INSIGHT HEALTH SERVICES CORP.
---
By:
-------------------------------
Title:
Attest:
-------------------------------
A-2
Form of Trustee's Certificate of Authentication
This is one of the 9 5/8% [Series B]** Senior Subordinated Notes due 2008
described in the within-mentioned Indenture.
Date: June __, 1998 STATE STREET BANK AND TRUST
COMPANY, N.A., as Trustee
By:
-----------------------------------
Authorized Signatory
- ----------
** Include only for Exchange Notes.
A-3
[REVERSE SIDE OF NOTE]
INSIGHT HEALTH SERVICES CORP.
9 5/8% [Series B]** Senior Subordinated Note due 2008
1. Principal and Interest.
The Company will pay the principal of this Note on June 15,
2008.
The Company promises to pay interest on the principal amount
of this Note on each Interest Payment Date, as set forth below, at the rate of
[9 5/8% per annum (subject to adjustment as provided below)]* [9 5/8% per annum,
except that interest accrued on this Note pursuant to the penultimate paragraph
of this Section 1 for periods prior to the consummation of the Exchange Offer
(as such term is defined in the Registration Rights Agreement referred to below)
will accrue at the rate or rates borne by the Notes from time to time during
such periods].**
Interest will be payable semiannually on each Interest Payment
Date, commencing December 15, 1998 to the Holders of record of the Notes (or any
predecessor Notes) at the close of business on June 1, or December 1,
immediately preceding the applicable Interest Payment Date.
If (a) the Exchange Offer Registration Statement is not filed
with the Commission on or prior to the 60th calendar day following the Closing
Date or (b) the Exchange Offer Registration Statement is not declared effective
on or prior to the 150th calendar day following the Closing Date or the Exchange
Offer is not consummated on or prior to the 180th calendar day following the
Closing Date (except as otherwise set forth in the Registration Rights Agreement
(as defined below)) or (c) a Shelf Registration Statement is not declared
effective when required, the Company shall pay liquidated damages ("Liquidated
Damages") to each Holder of Notes with respect to the first 30-day period
following the 60-day period referred to in clause (a) above or the first 90-day
period following the periods referred to in clauses (b) or (c) above in an
amount equal to $0.05 per week per $1,000 principal amount of Notes held by such
Holder. The amount of Liquidated Damages will increase by an additional $0.05
per week per $1,000 principal amount of Notes at the beginning of each
subsequent 30-day period in the case of
- --------
* Include only for Initial Notes.
** Include only for Exchange Notes.
A-4
clause (a) above or 90-day period in the case of clauses (b) and (c) above,
up to a maximum amount of Liquidated Damages of $0.30 per week per $1,000
principal amount of Notes. Upon the filing of the Exchange Offer Registration
Statement, the effectiveness of the Exchange Offer Registration Statement,
the consummation of the Exchange Offer or the effectiveness of a Shelf
Registration Statement, as the case may be, Liquidated Damages will cease to
accrue from the date of such filing, consummation or effectiveness, as the
case may be; provided, however, that, if, after the date such Liquidated
Damages cease to accrue, a different event specified in clause (a), (b) or
(c) above occurs, Liquidated Damages may again commence accruing pursuant to
the foregoing provisions.
Interest on this Note will accrue from the most recent date to
which interest has been paid [on this Note or the Note surrendered in exchange
herefor]** or, if no interest has been paid, from June 12, 1998; provided that,
if there is no existing default in the payment of interest and if this Note is
authenticated between a Regular Record Date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such
Interest Payment Date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
The Company shall pay interest on overdue principal and
premium, if any, and interest on overdue installments of interest, to the extent
lawful, at a rate per annum equal to the rate of interest applicable to the
Notes.
2. Method of Payment.
The Company will pay interest (except defaulted interest) on
the principal amount of the Notes on each June 15 and December 15 (each an
"Interest Payment Date") to the persons who are Holders (as reflected in the
Register at the close of business on the June 1 or December 1 immediately
preceding the applicable Interest Payment Date), in each case, even if the Note
is canceled on registration of transfer or registration of exchange after such
record date.
The principal of (and premium, if any), and interest on this
Note shall be payable, and this Note shall be exchangeable and transferable, at
the office or agency of the Company in The City of New York maintained for such
purposes (which initially shall be the Corporate Trust Office of the Trustee
located at 61 Broadway, 15th Floor, New York, New York 10006) or, at the option
of the Company, interest may be paid by check mailed to the address of the
Person entitled thereto as such address shall appear on the Register; provided
that all payments with respect to this Note, the Holders of which have given
wire transfer instructions to the Company, will be required to be made by wire
transfer of immediately available funds to the accounts specified by the Holders
thereof.
- --------------------
** Include only for Exchange Notes.
A-5
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar upon written notice
thereto. The Company, any Subsidiary or any Affiliate of any of them may act as
Paying Agent, Registrar or co-registrar.
4. Subsidiary Guarantees.
This Note is initially entitled to the benefits of the
Subsidiary Guarantees made by the Subsidiary Guarantors as described in the
Indenture and may thereafter be entitled to Subsidiary Guarantees made by other
Subsidiary Guarantors for the benefit of the Holders of this Note. Each present
Subsidiary Guarantor has, and each future Subsidiary Guarantor will, irrevocably
and unconditionally, jointly and severally, guarantee on a senior subordinated
basis the punctual payment when due, whether at Stated Maturity, by
acceleration, in connection with a Change of Control Offer (as defined below),
an Asset Sale or redemption, or otherwise, of all obligations of the Company
under the Indenture and this Note, whether for payment of principal of, premium,
if any, or interest, if any, on the Notes, expenses, indemnification or
otherwise. A Subsidiary Guarantor shall be released from its Subsidiary
Guarantee upon the terms and subject to the conditions set forth in the
Indenture.
5. Subordination.
This Note and the Subsidiary Guarantees are subordinated in
right of payment, as set forth in the Indenture, to the prior payment in full of
all existing and future Senior Indebtedness. Each of the Company and the
Subsidiary Guarantors agrees, and each Holder by accepting a Note agrees, to the
subordination provisions set forth in the Indenture, authorizes the Trustee to
give them effect and appoints the Trustee as attorney-in-fact for such purposes.
6. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of
June 1, 1998, (the "Indenture"), between the Company, the Subsidiary Guarantors
named therein and State Street Bank and Trust Company, N.A., as trustee (the
"Trustee"). Capitalized terms herein are used as defined in the Indenture unless
otherwise indicated. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act. The Notes are subject to all such terms, and Holders are referred
to the Indenture and the Trust Indenture Act for a statement of all such terms.
To the extent permitted by applicable law, in the event of any inconsistency
between the terms of this Note and the terms of the Indenture, the terms of the
Indenture shall control.
The Notes are general unsecured obligations of the Company.
A-6
7. Redemption.
Optional Redemption. The Notes may be redeemed at the option
of the Company, in whole or in part, at any time and from time to time on or
after June 15, 2003 at the following Redemption Prices (expressed in percentages
of principal amount), plus accrued and unpaid interest, if any, to the
Redemption Date (subject to the right of Holders of record on the relevant
Regular Record Date to receive interest due on an Interest Payment Date that is
on or prior to the Redemption Date), if redeemed during the 12-month period
beginning June 15 of each of the years set forth below:
Redemption
Year Price
2003...................................104.8125%
2004 ..................................103.2083%
2005 .................................101.6042%
2006 and thereafter ..................100.0000%
In addition, at any time or from time to time prior to June 15,
2001, the Company may redeem up to 35% of the sum of (i) the initial aggregate
principal amount of the Notes and (ii) the initial aggregate principal amount of
any Additional Notes on one or more occasions with the net proceeds of one or
more Equity Offerings at a Redemption Price equal to 109.625% of the principal
amount thereof, plus accrued and unpaid interest thereon, if any, to the
Redemption Date (subject to the right of Holders of record on the relevant
record date to receive interest due on an Interest Payment Date that is on or
prior to the Redemption Date); provided that, immediately after giving effect to
such redemption, at least 65% of the sum of (x) the initial aggregate principal
amount of the Notes and (y) the initial aggregate principal amount of any
Additional Notes remains outstanding; provided further that such redemptions
shall occur within 60 days of the date of closing of each Equity Offering.
Notice of a redemption will be mailed at least 30 days but not
more than 60 days before the Redemption Date to each Holder to be redeemed at
such Holder's last address as it appears in the Register. Notes in original
denominations larger than $1,000 may be redeemed in part in integral multiples
of $1,000. On and after the Redemption Date, interest will cease to accrue on
Notes or portions of Notes called for redemption, unless the Company defaults in
the payment of the Redemption Price.
8. Repurchase upon a Change in Control and Asset Sales.
(a) If a Change of Control occurs at any time, then each
Holder of Notes or Additional Notes shall have the right to require that the
Company purchase such Holder's Notes
A-7
or Additional Notes, as applicable, in whole or in part in integral multiples
of $1,000, at a purchase price in cash equal to 101% of the principal amount
of such Notes or Additional Notes, plus accrued and unpaid interest, if any,
to the date of purchase, pursuant to any such offer as is described in the
Indenture (a "Change of Control Offer") and (b) upon Asset Sales, the Company
may be obligated to make offers to purchase Notes with a portion of the Net
Cash Proceeds of such Asset Sales at a redemption price of 100% of the
principal amount thereof plus accrued and unpaid interest, if any, to the
date of purchase in accordance with the procedures set forth in the Indenture.
9. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons, in
denominations of $1,000 and multiples of $1,000 in excess thereof; provided that
Certificated Notes originally purchased by or transferred to institutional
"accredited investors" (as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) who are not "qualified institutional buyers" (as defined in Rule
144A under the Securities Act) will be subject to a minimum denomination of
$250,000. A Holder may register the transfer or exchange of Notes in accordance
with the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. The Registrar need not
register the transfer or exchange of any Notes selected for redemption (except
the unredeemed portion of any Note being redeemed in part). Also, it need not
register the transfer or exchange of any Notes for a period of 15 days before a
selection of Notes to be redeemed is made.
10. Persons Deemed Owners.
A Holder may be treated as the owner of a Note for all
purposes.
11. Unclaimed Money.
If money for the payment of principal, premium, if any, or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company at its request. After that, Holders entitled
to the money must look to the Company for payment, unless an abandoned property
law designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity.
If the Company irrevocably deposits, or causes to be
deposited, with the Trustee
A-8
money or U.S. Government Obligations sufficient to pay the then outstanding
principal of, premium, if any, and accrued interest on the Notes to redemption
or maturity, the Company will be discharged from the Indenture and the Notes,
except in certain circumstances for certain sections thereof.
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may
be amended or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding, and any
existing default or compliance with any provision may be waived with the consent
of the Holders of a majority in aggregate principal amount of the Notes then
outstanding. Without notice to or the consent of any Holder, the parties thereto
may amend or supplement the Indenture or the Notes to, among other things, cure
any ambiguity, defect or inconsistency.
14. Restrictive Covenants.
The Indenture contains certain covenants, including, without
limitation, covenants with respect to the following matters: (i) Indebtedness;
(ii) Restricted Payments; (iii) issuances and sales of Restricted Subsidiary
Capital Stock; (iv) transactions with Affiliates; (v) Liens; (vi) certain Asset
Sales; (vii) dividends and other payment restrictions affecting Restricted
Subsidiaries; (viii) mergers and certain transfers of assets. Within 120 days
after the end of each fiscal year, the Company must report to the Trustee on
compliance with such limitations.
15. Successor Persons.
When a successor Person assumes all the obligations of its
predecessor under the Notes and the Indenture, the predecessor Person will be
released from those obligations.
16. Remedies for Events of Default.
If an Event of Default, as defined in the Indenture, occurs
and is continuing, the Trustee or the Holders of not less than 25% in principal
amount of the Notes then outstanding may declare all the Notes to be immediately
due and payable. If a bankruptcy or insolvency default with respect to the
Company or any of its Significant Subsidiaries occurs and is continuing, the
Notes automatically become immediately due and payable. Holders may not enforce
the Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Notes. Subject to certain limitations, Holders of at least a majority in
principal amount of the Notes then outstanding may
A-9
direct the Trustee in its exercise of any trust or power.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Notes and may make loans to,
accept deposits from, perform services for, and otherwise deal with, the Company
and its Affiliates as if it were not the Trustee.
18. No Recourse Against Certain Others.
No director, officer, employee, incorporator or stockholder of
the Company, as such, shall have any liability for any obligations of the
Company under the Notes or the Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. No director, officer,
employee, incorporator or stockholder of any Subsidiary Guarantor, as such,
shall have any liability for any obligations of such Subsidiary Guarantor under
its Subsidiary Guarantee or the Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes and the Subsidiary
Guarantees.
19. Authentication.
This Note shall not be valid until the Trustee manually signs
the certificate of authentication on the other side of this Note.
20. Governing Law.
The Notes shall be governed by, and construed in accordance
with, the law of the State of New York.
21. Abbreviations.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to InSight
Health Services Corp., 4400
A-10
MacArthur Blvd., Suite 800, Newport Beach, California 92660, Attention: General
Counsel.
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
(Please print or typewrite name and address including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
attorney to transfer such Note on the books of the Company with full power of
substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES
EXCEPT PERMANENT OFFSHORE PHYSICAL
CERTIFICATES]
In connection with any transfer of this Note occurring prior
to the date which is the earlier of the date of an effective Registration
Statement or June 12, 2000 the undersigned confirms that without utilizing any
general solicitation or general advertising that:
[Check One]
[ ] (a)this Note is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended,
provided by Rule 144A thereunder.
or
[ ] (b)this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 307 of the Indenture shall have
been satisfied.
A-11
Date: _________________________________
Signature to be guaranteed by an
institution that is a member of the
Signature Guarantee Medallion Program.
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within-mentioned
instrument in every particular, without
alteration or any change whatsoever.
Signature Guarantee:
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Note 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: _____________________________
NOTICE: To be executed by an
executive officer
A-12
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company
pursuant to Section 1015 or Section 1016 of the Indenture, check the Box: [ ].
If you wish to have a portion of this Note purchased by the
Company pursuant to Section 1015 or Section 1016 of the Indenture, state the
amount (in original principal amount) below:
$
---------------------.
Date:
Your Signature:
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
A-13
Exhibit B
Form of Certificate
to Be Delivered upon
Termination of Distribution Compliance Period
On or after July 22, 1998
InSight Health Services Corp.
4400 MacArthur Boulevard
Suite 800
Newport Beach, California 92660
Re: InSight Health Services Corp. (the "Company")
9 5/8% Senior Subordinated Notes due 2008 (the "Notes")
Ladies and Gentlemen:
Capitalized terms used herein without definitions shall have
the meanings ascribed thereto in the Indenture dated as of June 1, 1998 between
you and State Street Bank and Trust Company, N.A., as trustee. This letter
relates to U.S. $__________ principal amount at maturity of Notes represented by
the Offshore Global Note. Pursuant to Section 202 of the Indenture, we hereby
certify that (1) we are the beneficial owner of such principal amount of Notes
represented by the Offshore Global Note and (2) we are a Person outside the
United States to whom the Notes could be transferred in accordance with Rule 904
of Regulation S promulgated under the Securities Act. Accordingly, you are
hereby requested to issue an Offshore Physical Note representing the
undersigned's interest in the principal amount of Notes represented by the
Offshore Global Note, all in the manner provided by the Indenture.
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.
Very truly yours,
[Name of Holder]
By:
A-14
Exhibit C
FORM OF SUBSIDIARY GUARANTEE
Each Subsidiary Guarantor hereby jointly and severally, absolutely,
unconditionally and irrevocably guarantees the Notes and obligations of the
Company hereunder and thereunder, and guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee on behalf of such
Holder, that: (a) the principal of (and premium, if any) and interest on the
Notes will be paid in full when due, whether at Stated Maturity, by
acceleration, call for redemption or otherwise (including, without limitation,
the amount that would become due but for the operation of the automatic stay
under Section 362(a) of the Federal Bankruptcy Code), together with interest on
the overdue principal, if any, and interest on any overdue interest, to the
extent lawful, and all other obligations of the Company to the Holders or the
Trustee hereunder or thereunder will be paid in full or performed, all in
accordance with the terms hereof and thereof; and (b) in case of any extension
of time of payment or renewal of any Notes or of any such other obligations, the
same will be paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at Stated Maturity, by acceleration or
otherwise, subject, however, in the case of clauses (a) and (b) above, to the
limitations set forth in Section 1306 of the Indenture.
The obligations of the Subsidiary Guarantors to the Holders of the Notes
and to the Trustee on behalf of the Holders pursuant to this Subsidiary
Guarantee and the Indenture are expressly set forth in Article Thirteen of the
Indenture, and reference is hereby made to such Indenture for the precise terms
of this Subsidiary Guarantee. The terms of Article Thirteen of the Indenture are
incorporated herein by reference.
This is a continuing guarantee and shall remain in full force and effect
and shall be binding upon each Subsidiary Guarantor and its respective
successors and assigns to the extent set forth in the Indenture until full and
final payment of all of the Company's obligations under the Notes and the
Indenture and shall inure to the benefit of the successors and assigns of the
Trustee on behalf of the Holders and the Holders of Notes and, in the event of
any transfer or assignment of rights by any Holder of Notes or the Trustee, the
rights and privileges herein conferred upon that party shall automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions hereof. This is a guarantee of payment and not a guarantee of
collection.
In certain circumstances more fully described in the Indenture, any
Subsidiary Guarantor may be released from its liability under this Subsidiary
Guarantee, and any such release will be effective whether or not noted herein.
This Subsidiary Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Notes upon which this Subsidiary
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized officers.
Capitalized terms used herein have the same meanings given in the Indenture
unless otherwise indicated.
IN WITNESS WHEREOF, each Subsidiary Guarantor has caused its Subsidiary
Guarantee to be duly executed.
Date: June __, 1998
INSIGHT HEALTH CORP.
By:
Name:
Title:
RADIOLOGY SERVICES CORP.
By:
Name:
Title:
OPEN MRI, INC.
By:
Name:
Title:
MAXUM HEALTH CORP.
By:
Name:
Title:
SIGNAL MEDICAL SERVICES, INC.
By:
Name:
Title:
QUEST FINANCIAL SERVICES, INC.
By:
Name:
Title:
RADIOSURGERY CENTERS, INC.
By:
Name:
Title:
MAXUM HEALTH SERVICES CORP.
By:
Name:
Title:
MTS ENTERPRISES, INC.
By:
Name:
Title:
DIAGNOSTEMPS, INC.
By:
Name:
Title:
MAXUM HEALTH SERVICES OF
NORTH TEXAS, INC.
By:
Name:
Title:
MAXUM HEALTH SERVICES OF
ARLINGTON, INC.
By:
Name:
Title:
MAXUM HEALTH SERVICES OF DALLAS, INC.
By:
Name:
Title:
NDDC, INC.
By:
Name:
Title:
DIAGNOSTIC SOLUTIONS CORP.
By:
Name:
Title:
MISSISSIPPI MOBILE TECHNOLOGY, INC.
By:
Name:
Title:
Each, a Subsidiary Guarantor
By:
Name:
Title:
Exhibit D
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Institutional Accredited Investors
[Date]
InSight Health Services Corp.
4400 MacArthur Boulevard
Suite 800
Newport Beach, California 92660
c/o STATE STREET BANK AND TRUST COMPANY
61 Broadway, 15th Floor
New York, New York 10006
Attention: Corporate Trust Department
Re: InSight Health Services Corp., (the "Company")
9 5/8 % Senior Subordinated Notes due 2008 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed purchase of $[____________] aggregate
principal amount of the Notes:
1. We understand that the Notes have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and 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 the
Notes to offer, sell or otherwise transfer such Notes 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 Notes, 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)
for so long as the Notes are eligible for resale pursuant to Rule 144A under
the Securities Act, 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 to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to offers and
sales to non-U.S. Persons that occur outside the United States within the
meaning of Regulations S under the Securities Act, (e) to an institutional
"accredited investor" within the meaning of subparagraph (a)(1), (2), (3) or
(7) of Rule 501 under the Securities Act that is acquiring the Notes for its
own account or for the account of such an institutional "accredited
investor" for investment purposes and not with a view to, or for offer or
sale in connection with, any distribution thereof in violation of the
Securities Act 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 and the property of such investor account or accounts be at all
times within our or their control and to 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 Notes 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 Trustee, which shall provide, among other things, that the
transferee is an institutional "accredited investor" within the meaning of
subparagraph (a)(1), (2), (3) or (7) or Rule 501 under the Securities Act
and that it is acquiring such Notes for investment purposes and not for
distribution in violation of the Securities Act. We acknowledge that the
Company and the Trustee reserve the right prior to any offer, sale or other
transfer prior to the Resale Restriction Termination Date of the Notes
pursuant to clauses (d), (e) and (f) above to require the delivery of an
Opinion of Counsel, certifications and/or other information satisfactory to
the Company and the Trustee.
2. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act)
purchasing for our own account or for the account of such an institutional
"accredited investor," and we are acquiring the Notes 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 and we have such
knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we
and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
3. We are acquiring the Notes purchased by us for our own account or
for one or more accounts as to each of which we exercise sole investment
discretion.
4. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party
in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
By:
(NAME OF PURCHASER)
Date:
Upon transfer, the Notes should be registered in the name of the new
beneficial owner as follows:
Name:
Address:
Taxpayer ID Number:
Exhibit E
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
[Date]
InSight Health Services Corp.
4400 MacArthur Boulevard
Suite 800
Newport Beach, California 92660
c/o
c/o STATE STREET BANK AND TRUST COMPANY
61 Broadway, 15th Floor
New York, New York 10006
Attention: Corporate Trust Department
Re: InSight Health Services Corp. (the "Company")
9 5/8% Senior Subordinated Notes Due 2008 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $[_________] aggregate principal
amount of the Notes, we confirm that such sale has been effected pursuant to and
in accordance with Regulation S under the Securities Act of 1933, as amended,
and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United States and
the proposed transferee is a Non-U.S. Person (as defined in the Indenture
pursuant to which the Notes were issued);
(2) either (a) 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 (b) 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;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S,
as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933, as amended.
In addition, if the sale is made during a distribution compliance period and
the provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are
applicable thereto, we confirm that such sale has been made in accordance with
the applicable provisions of Rule 903(c)(3) or Rule 904(c)(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.
Very truly yours,
[Name of Transferor]
By:
Authorized Signature
INSIGHT HEALTH SERVICES CORP.
Issuer,
THE SUBSIDIARY GUARANTORS NAMED HEREIN,
Guarantors
and
STATE STREET BANK AND TRUST COMPANY, N.A.
Trustee
--------------------
Indenture
Dated as of June 1, 1998
---------------------
$100,000,000
9 5/8% Senior Subordinated Notes Due 2008
INSIGHT HEALTH SERVICES CORP.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of June 1, 1998
Trust Indenture
Act Section Indenture Section
Section 310(a)(1) 607
(a)(2) 607
(b) 608
Section 312(c) 701
Section 314(a) 703
(a)(4) 1008(a)
(c)(1) 103
(c)(2) 103
(e) 103
Section 315(b) 601
Section 316(a)(last
sentence) 101 ("Outstanding")
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
(c) 105(d)
Section 317(a)(1) 503
(a)(2) 504
(b) 1003
Section 318(a) 114
- ----------
Note: This reconciliation and tie shall not, for any purpose be deemed part of
the Indenture
TABLE OF CONTENTS
Page
PARTIES......................................................................................................... 1
RECITALS OF THE COMPANY......................................................................................... 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION............................................................................................2
SECTION 101. Definitions................................................................................2
Acquired Indebtedness...........................................................................2
Act.............................................................................................2
Additional Notes................................................................................2
Affiliate.......................................................................................2
Agent Bank......................................................................................3
Amended Credit Agreement........................................................................3
Asset Sale......................................................................................3
Banks .......................................................................................3
Board .......................................................................................3
Board Resolution................................................................................4
Business Day....................................................................................4
Capital Stock...................................................................................4
Capitalized Lease Obligation....................................................................4
Cash Equivalent.................................................................................4
Change of Control...............................................................................4
Closing Date....................................................................................5
Commission......................................................................................5
Common Stock....................................................................................5
Company .......................................................................................6
Company Request" or "Company Order..............................................................6
Consolidated EBITDA.............................................................................6
Consolidated Net Income.........................................................................6
Consolidated Tangible Assets....................................................................7
Corporate Trust Office..........................................................................7
Corporation.....................................................................................7
Default .......................................................................................7
Defaulted Interest..............................................................................7
Depositary......................................................................................7
- --------
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
Page
Designated Senior Indebtedness..................................................................7
Disinterested Director..........................................................................7
Disqualified Stock..............................................................................7
Equity Offering.................................................................................8
Event of Default................................................................................8
Exchange Act....................................................................................8
Exchange Notes..................................................................................8
Exchange Offer..................................................................................8
Exchange Offer Registration Statement...........................................................8
Existing Indebtedness...........................................................................8
Facility .......................................................................................8
Federal Bankruptcy Code.........................................................................9
Fixed Charges...................................................................................9
Fixed Charge Coverage Ratio.....................................................................9
Foreign Subsidiary..............................................................................9
Generally Accepted Accounting Principles" or "GAAP..............................................9
Guarantee.......................................................................................9
Hedging Obligations.............................................................................9
Holder.........................................................................................10
Indebtedness...................................................................................10
Indenture......................................................................................10
Initial Notes..................................................................................10
Interest Payment Date..........................................................................10
Investment.....................................................................................10
Lien...........................................................................................11
Maturity.......................................................................................11
Moody's........................................................................................11
Net Cash Proceeds..............................................................................11
Non-payment Event of Default...................................................................12
Non-Recourse Indebtedness......................................................................12
Non-U.S. Person................................................................................12
Notes..........................................................................................12
Obligations....................................................................................12
Officers' Certificate..........................................................................12
Opinion of Counsel.............................................................................12
Outstanding....................................................................................12
Pari Passu Indebtedness........................................................................13
Paying Agent...................................................................................13
Payment Default................................................................................14
Page
Payment Event of Default.......................................................................14
"Permitted Business" means the Business conducted by the Company, its
Restricted Sub..............................................................................14
Permitted Holders..............................................................................14
Permitted Investments..........................................................................14
Permitted Joint Venture........................................................................15
Permitted Refinancing Indebtedness.............................................................16
Person ......................................................................................16
Predecessor Note...............................................................................16
Preferred Stock................................................................................16
Purchase money obligations.....................................................................17
QIB ......................................................................................17
Qualified Equity Interest......................................................................17
Qualified Stock................................................................................17
Redemption Date................................................................................17
Redemption Price...............................................................................17
Register and Note Registrar....................................................................17
Registrar......................................................................................17
Registration Rights Agreement..................................................................17
Registration Statement.........................................................................17
Regular Record Date............................................................................18
Regulation S...................................................................................18
Restricted Investment..........................................................................18
Restricted Subsidiary..........................................................................18
Rule 144A......................................................................................18
Sale and Leaseback Transaction.................................................................18
Securities Act.................................................................................18
Senior Bank Debt...............................................................................18
Senior Indebtedness............................................................................18
Shelf Registration Statement...................................................................19
Significant Subsidiary.........................................................................19
S&P............................................................................................19
Special Record Date............................................................................19
Stated Maturity................................................................................19
Subordinated Indebtedness......................................................................19
Subsidiary.....................................................................................20
Subsidiary Guarantee...........................................................................20
Subsidiary Guarantors..........................................................................20
Trust Indenture Act or TIA.....................................................................20
Page
Trustee ......................................................................................20
Unrestricted Subsidiary........................................................................20
U.S. Government Obligations....................................................................20
Voting Stock...................................................................................21
Weighted Average Life..........................................................................21
Wholly Owned Restricted Subsidiary.............................................................21
SECTION 102. Incorporation by Reference of Trust Indenture Act.........................................21
SECTION 103. Compliance Certificates and Opinions......................................................22
SECTION 104. Form of Documents Delivered to Trustee....................................................22
SECTION 105. Acts of Holders...........................................................................23
SECTION 106. Notices, etc., to Trustee, Company and Subsidiary Guarantors..............................24
SECTION 107. Notice to Holders; Waiver.................................................................25
SECTION 108. Effect of Headings and Table of Contents..................................................26
SECTION 109. Successors and Assigns....................................................................26
SECTION 110. Severability Clause.......................................................................26
SECTION 111. Benefits of Indenture.....................................................................26
SECTION 112. Governing Law.............................................................................26
SECTION 113. Legal Holidays............................................................................26
SECTION 114. Conflict of Any Provision of Indenture with Trust Indenture Act...........................27
ARTICLE TWO NOTE FORMS...........................................................................................27
SECTION 201. Forms Generally...........................................................................27
SECTION 202. Restrictive Legends.......................................................................28
ARTICLE THREE THE NOTES..........................................................................................30
SECTION 301. Title and Terms...........................................................................30
SECTION 302. Denominations.............................................................................31
SECTION 303. Execution, Authentication, Delivery and Dating............................................31
SECTION 304. Temporary Notes...........................................................................33
SECTION 305. Registration, Registration of Transfer and Exchange.......................................33
SECTION 306. Book-Entry Provisions for Global Notes....................................................34
SECTION 307. Special Transfer Provisions...............................................................36
SECTION 308. Mutilated, Destroyed, Lost and Stolen Notes...............................................39
SECTION 309. Payment of Interest; Interest Rights Preserved............................................40
SECTION 310. Persons Deemed Owners.....................................................................41
SECTION 311. Cancellation..............................................................................42
SECTION 312. Issuance of Additional Notes..............................................................42
SECTION 313. Computation of Interest...................................................................42
ARTICLE FOUR SATISFACTION AND DISCHARGE..........................................................................42
SECTION 401. Satisfaction and Discharge of Indenture...................................................42
Page
SECTION 402. Application of Trust Money................................................................43
ARTICLE FIVE REMEDIES............................................................................................44
SECTION 501. Events of Default.........................................................................44
SECTION 502. Acceleration of Maturity; Rescission and Annulment........................................45
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee...........................46
SECTION 504. Trustee May File Proofs of Claim..........................................................47
SECTION 505. Trustee May Enforce Claims Without Possession of Notes....................................48
SECTION 506. Application of Money Collected............................................................48
SECTION 507. Limitation on Suits.......................................................................49
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.................................................................................49
SECTION 509. Restoration of Rights and Remedies........................................................49
SECTION 510. Rights and Remedies Cumulative............................................................50
SECTION 511. Delay or Omission Not Waiver..............................................................50
SECTION 512. Control by Holders........................................................................50
SECTION 513. Waiver of Past Defaults...................................................................51
SECTION 514. Waiver of Stay or Extension Laws..........................................................51
SECTION 515. Waiver of Personal Liability of Directors, Officers,
Employees and Stockholders...............................................................51
ARTICLE SIX THE TRUSTEE..........................................................................................52
SECTION 601. Duties of Trustee.........................................................................52
SECTION 602. Notice of Defaults........................................................................53
SECTION 603. Certain Rights of Trustee.................................................................53
SECTION 604. Trustee Not Responsible for Recitals or Issuance of Notes.................................55
SECTION 605. May Hold Notes............................................................................55
SECTION 606. Money Held in Trust.......................................................................55
SECTION 607. Compensation and Reimbursement............................................................55
SECTION 608. Corporate Trustee Required; Eligibility...................................................56
SECTION 609. Resignation and Removal; Appointment of Successor.........................................57
SECTION 610. Acceptance of Appointment by Successor....................................................58
SECTION 611. Merger, Conversion, Consolidation or Succession to Business...............................59
ARTICLE SEVEN HOLDERS LISTS AND REPORTS BY TRUSTEE...............................................................59
SECTION 701. Disclosure of Names and Addresses of Holders..............................................59
SECTION 702. Reports by Trustee........................................................................59
Page
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE.......................................................................................60
SECTION 801. Company May Consolidate, etc., Only on Certain Terms......................................60
SECTION 802. Successor Substituted.....................................................................61
ARTICLE NINE SUPPLEMENTS AND AMENDMENTS TO INDENTURE
AND SUBSIDIARY GUARANTEES...............................................................................62
SECTION 901. Without Consent of Holders................................................................62
SECTION 902. With Consent of Holders...................................................................63
SECTION 903. Execution of Supplemental Indentures......................................................64
SECTION 904. Effect of Supplemental Indentures.........................................................64
SECTION 905. Conformity with Trust Indenture Act.......................................................64
SECTION 906. Reference in Notes to Supplemental Indentures.............................................65
SECTION 907. Notice of Supplemental Indentures.........................................................65
ARTICLE TEN COVENANTS............................................................................................65
SECTION 1001. Payment of Principal, Premium, if any, and Interest......................................65
SECTION 1002. Maintenance of Office or Agency..........................................................65
SECTION 1003. Money for Note Payments to Be Held in Trust..............................................66
SECTION 1004. Corporate Existence......................................................................67
SECTION 1005. Payment of Taxes and Other Claims........................................................68
SECTION 1006. Maintenance of Properties................................................................68
SECTION 1007. Insurance................................................................................68
SECTION 1008. Statement by Officers As to Default......................................................68
SECTION 1009. Reports..................................................................................69
SECTION 1010. Limitation on Incurrence of Indebtedness and Issuance of Disqualified
Stock...................................................................................69
SECTION 1011. Limitation on Restricted Payments........................................................72
SECTION 1012. Limitation on Issuances and Sales of Capital Stock of Restricted
Subsidiaries............................................................................76
SECTION 1013. Limitation on Transactions with Affiliates...............................................76
SECTION 1014. Limitation on Liens......................................................................77
SECTION 1015. Purchase of Notes upon a Change of Control...............................................78
SECTION 1016. Limitation on Certain Asset Sales........................................................80
SECTION 1017. Unrestricted Subsidiaries................................................................81
SECTION 1018. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries.......................................................82
SECTION 1019. Waiver of Certain Covenants..............................................................83
SECTION 1020. Payment for Consent......................................................................83
SECTION 1021. Limitation on Layering Debt..............................................................83
Page
SECTION 1022. Limitation on Guarantees of Indebtedness by Restricted
Subsidiaries............................................................................84
ARTICLE ELEVEN REDEMPTION OF NOTES...............................................................................84
SECTION 1101. Right of Redemption......................................................................84
SECTION 1102. Applicability of Article.................................................................85
SECTION 1103. Election to Redeem; Notice to Trustee....................................................85
SECTION 1104. Selection by Trustee of Notes to Be Redeemed.............................................86
SECTION 1105. Notice of Redemption.....................................................................86
SECTION 1106. Deposit of Redemption Price..............................................................87
SECTION 1107. Notes Payable on Redemption Date.........................................................87
SECTION 1108. Notes Redeemed in Part...................................................................88
ARTICLE TWELVE LEGAL DEFEASANCE AND COVENANT DEFEASANC...........................................................88
SECTION 1201. Company Option to Effect Legal Defeasance or Covenant
Defeasance.............................................................................88
SECTION 1202. Legal Defeasance and Discharge...........................................................88
SECTION 1203. Covenant Defeasance......................................................................89
SECTION 1204. Conditions to Legal Defeasance or Covenant Defeasance....................................89
SECTION 1205. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions...........................................90
SECTION 1206. Reinstatement............................................................................91
ARTICLE THIRTEEN GUARANTEES......................................................................................91
SECTION 1301. Subsidiary Guarantees....................................................................91
SECTION 1302. Execution and Delivery of Subsidiary Guarantee...........................................93
SECTION 1303. Severability.............................................................................93
SECTION 1304. Seniority of Subsidiary Guarantees.......................................................93
SECTION 1305. Limitation of Subsidiary Guarantor's Liability...........................................94
SECTION 1306. Contribution.............................................................................94
SECTION 1307. Release of a Subsidiary Guarantor........................................................95
SECTION 1308. Benefits Acknowledged....................................................................95
SECTION 1309. Issuance of Subsidiary Guarantees by Certain New Restricted
Subsidiaries............................................................................96
ARTICLE FOURTEEN SUBORDINATION...................................................................................96
SECTION 1401. Notes Subordinate to Senior Indebtedness.................................................96
SECTION 1402. Payment over by the Company of Proceeds upon
Dissolution, etc........................................................................96
SECTION 1403. Suspension of Payment on Notes When Senior Indebtedness of the
Company in Default......................................................................97
SECTION 1404. Payment Over by Subsidiary Guarantors of Proceeds Upon
Dissolution, etc........................................................................98
Page
SECTION 1405. Suspension of Payment on Subsidiary Guarantees When Senior
Indebtedness of Subsidiary Guarantor in Default........................................100
SECTION 1406. Payment Permitted If No Default.........................................................100
SECTION 1407. Subrogation to Rights of Holders of Senior Indebtedness.................................101
SECTION 1408. Provisions Solely to Define Relative Rights.............................................101
SECTION 1409. Trustee to Effectuate Subordination.....................................................102
SECTION 1410. No Waiver of Subordination Provisions...................................................102
SECTION 1411. Notice to Trustee.......................................................................102
SECTION 1412. Reliance on Judicial Order or Certificate of Liquidating
Agent..................................................................................103
SECTION 1413. Rights of Trustee As a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.......................................................103
SECTION 1414. Article Applicable to Paying Agents.....................................................104
SECTION 1415. No Suspension of Remedies...............................................................104
SECTION 1416. Trust Moneys Not Subordinated...........................................................104
SECTION 1417. Trustee Not Fiduciary for Holders of Senior Indebtedness................................104
EXHIBITS
Page
Exhibit A - Form of Note........................................................................................A-1
Exhibit B - Form of Certificate to Be Delivered upon Termination of Restricted Period...........................B-1
Exhibit C - Form of Subsidiary Guarantee........................................................................C-1
Exhibit D - Form of Certificate to Be Delivered in Connection with Transfers
to Non-QIB Institutional Accredited Investors .....................................................D-1
Exhibit E - Form of Certificate to Be Delivered in Connection with Transfers
Pursuant to Regulation S...........................................................................E-1
SCHEDULES
Schedule I - Existing Indebtedness