CENTENE CORPORATION 7¼% Senior Notes due 2014 INDENTURE Dated as of March 22, 2007 THE BANK OF NEW YORK TRUST COMPANY, N.A. as Trustee
Exhibit
4.1
EXECUTION
VERSION
CENTENE
CORPORATION
$175,000,000
7¼%
Senior Notes due 2014
______________________________
Dated
as
of March 22, 2007
______________________________
THE
BANK
OF NEW YORK TRUST COMPANY, N.A.
as
Trustee
This
INDENTURE dated as of March 22, 2007, is by and between Centene Corporation
(the
“Company”), a Delaware corporation and The Bank of New York Trust Company, N.A.,
a national banking association, as trustee (the “Trustee”).
The
Company and the Trustee agree as follows for the benefit of each other and
for
the equal and ratable benefit of the Holders of the 7-1/4% Senior Notes due
2014
(the “Notes”)
issued
under this Indenture:
ARTICLE
1.
DEFINITIONS
AND INCORPORATION BY REFERENCE
Section
1.01. Definitions.
For
all
purposes of this Indenture, except as otherwise expressly provided or unless
the
context otherwise requires:
“144A
Global Note”
means
a
Global Note in the form of Exhibit A hereto bearing the Global Note Legend
and
the Private Placement Legend and deposited with and registered in the name
of
the Depositary or its nominee issued in a denomination equal to the outstanding
principal amount of the Notes sold for initial resale in reliance on Rule
144A.
“Acquired
Debt”
means,
with respect to any specified Person:
(1) Indebtedness
of any other Person existing at the time such other Person is merged with
or
into or became a Subsidiary of such specified Person, whether or not such
Indebtedness is incurred in connection with, or in contemplation of, such
other
Person merging with or into, or becoming a Subsidiary of, such specified
Person;
and
(2) Indebtedness
secured by a Lien encumbering any asset acquired by such specified
Person.
“Additional
Interest”
has
the
meaning set forth in the Registration Rights Agreement relating to amounts
to be
paid in the event the Company fails to satisfy certain conditions set forth
herein. For all purposes of this Indenture, the term “interest” shall include
Additional Interest, if any, with respect to the Notes.
“Affiliate”
of
any
specified Person means any other Person directly or indirectly controlling
or
controlled by or under direct or indirect common control with such specified
Person. For purposes of this definition, “control,” as used with respect to any
Person, means the possession, directly or indirectly, of the power to direct
or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise;
provided
that
beneficial ownership of 10% or more of the Voting Stock of a Person will
be
deemed to be control. For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” have correlative
meanings.
“Agent”
means
any Registrar, co-registrar, Paying Agent or additional paying
agent.
“Applicable
Procedures”
means,
with respect to any transfer, redemption or exchange of or for beneficial
interests in any Global Note, the rules and procedures of the Depositary,
Euroclear and Clearstream that apply to such transfer, redemption or
exchange.
“Asset
Sale”
means
the sale, lease, transfer, conveyance or other disposition of any assets
or
rights, other than sales, leases, transfers, conveyances or other dispositions
of inventory in the ordinary course of business consistent with past practices;
provided
that the
sale, conveyance or other disposition of all or substantially all of the
assets
of the Company and its Restricted Subsidiaries taken as a whole will be governed
by the provisions of this Indenture described below under Section 4.17 and/or
the provisions described in Section 5.01 and not by the provisions described
under Section 4.12 hereof
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Notwithstanding
the preceding, the following items will not be deemed to be Asset
Sales:
(1) any
single transaction or series of related transactions that involves assets
having
a Fair Market Value of less than $2.5 million;
(2) a
sale,
lease, transfer, conveyance or other disposition of assets between or among
the
Company and its Restricted Subsidiaries;
(3) an
issuance of Equity Interests by a Restricted Subsidiary to the Company or
to
another Restricted Subsidiary;
(4) a
sale,
lease, transfer, conveyance or other disposition effected in compliance with
the
provisions described under Section 5.01;
(5) a
Restricted Payment or Permitted Investment that is permitted by Section
4.10;
(6) the
Centene Plaza Divestiture;
(7) the
disposition of certain assets of FirstGuard Health Plan, Inc.;
(8) the
disposition of the outstanding common stock of FirstGuard, Inc.;
(9) the
disposition of Equity Interests in Permitted Joint Ventures; provided
that the
Company maintains ownership of at least 35% of the outstanding Equity Interests
in the applicable Permitted Joint Venture and control (as such term is defined
in Section 405 under the Securities Act) over the operations of the applicable
Permitted Joint Venture; and
(10) a
transfer or property or assets that are obsolete, damaged or worn out equipment
and that are no longer useful in the conduct of the Company or its Subsidiaries’
business and that is disposed of in the ordinary course of
business.
“Attributable
Debt”
in
respect of a Sale/Leaseback Transaction means, at the time of determination,
the
present value of the obligation of the lessee for net rental payments during
the
remaining term of the lease included in such Sale/Leaseback Transaction
including any period for which such lease has been extended or may, at the
option of the lessor, be extended. Such present value shall be calculated
using
a discount rate equal to the rate of interest implicit in such transaction,
determined in accordance with GAAP.
“Bankruptcy
Law”
means
Title 11, U.S. Code or any similar federal or state law for the relief of
debtors, or the law of any other jurisdiction relating to bankruptcy,
insolvency, winding up, liquidation, reorganization or relief of
debtors.
“Beneficial
Owner”
has the
meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange
Act, except that in calculating the beneficial ownership of any particular
“person” (as that term is used in Section 13(d)(3) of the Exchange Act), such
“person” will be deemed to have beneficial ownership of all securities that such
“person” has the right to acquire by conversion or exercise of other securities,
whether such right is currently exercisable or is exercisable only upon the
occurrence of a subsequent condition. The terms “Beneficially Owns” and
“Beneficially Owned” have a corresponding meaning.
“Board
of Directors”
means:
(1) with
respect to a corporation, the board of directors of the
corporation;
(2) with
respect to a partnership, the Board of Directors of the general partner of
the
partnership; and
2
(3) with
respect to any other Person, the board or committee of such Person serving
a
similar function.
“Board
Resolution”
of a
Person means a copy of a resolution certified by the secretary or an assistant
secretary (or individual performing comparable duties) of the applicable
Person
to have been duly adopted by the Board of Directors of such Person and to
be in
full force and effect on the date of such certification, and delivered to
the
Trustee.
“Business
Day”
means
any day other than a Legal Holiday.
“Capital
Lease Obligation”
means,
at the time any determination is to be made, the amount of the liability
in
respect of a capital lease that would at that time be required to be capitalized
on a balance sheet in accordance with GAAP.
“Capital
Stock”
means:
(1) in
the
case of a corporation, corporate stock;
(2) in
the
case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock;
(3) in
the
case of a partnership or limited liability company, partnership or membership
interests (whether general or limited); and
(4) any
other
interest or participation that confers on a Person the right to receive a
share
of the profits and losses of, or distributions of assets of, the issuing
Person.
“Cash
Equivalents”
means:
(1) United
States dollars;
(2) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality of the United States government
(provided
that the
full faith and credit of the United States is pledged in support of those
securities) having maturities of not more than six months from the date of
acquisition;
(3) certificates
of deposit and eurodollar time deposits with maturities of six months or
less
from the date of acquisition, bankers’ acceptances with maturities not exceeding
six months and overnight bank deposits, in each case, with any lender party
to
the Credit Agreement or with any domestic commercial bank having capital
and
surplus in excess of $500.0 million and a Thomson Bank Watch Rating of “B” or
better;
(4) repurchase
obligations with a term of not more than seven days for underlying securities
of
the types described in clauses (2) and (3) above entered into with any financial
institution meeting the qualifications specified in clause (3)
above;
(5) commercial
paper rated at least A-1 by Standard & Poor’s Rating Services or at least
P-1 by ▇▇▇▇▇’▇ Investors Service, Inc., and in each case maturing within six
months after the date of acquisition; and
(6) money
market funds at least 95% of the assets of which constitute Cash Equivalents
of
the kinds described in clauses (1) through (5) of this definition.
“Centene
Plaza Divestiture”
means
the sale, transfer or contribution by the Company or one of its Restricted
Subsidiaries of its right, title and interest in and to the real property
and
improvements known as Centene
3
Plaza
on
fair and reasonable terms and on an arm’s length basis to a joint venture
created to hold such real property (of which at least 50% of the Capital
Stock
of which is owned directly or indirectly by the Company and the remaining
Capital Stock of which is owned directly or indirectly by the Company’s
development partners with respect to the Centene Plaza Project).
“Centene
Plaza Project”
means
the development and construction of the office building complex project in
Clayton, Missouri known as Centene Plaza.
“Change
of Control”
means
the occurrence of any of the following:
(1) the
direct or indirect sale, transfer, conveyance or other disposition (other
than
by way of merger or consolidation), in one or a series of related transactions,
of all or substantially all of the properties or assets of the Company and
its
Restricted Subsidiaries, taken as a whole, to any “person” (as that term is used
in Section 13(d)(3) of the Exchange Act);
(2) the
adoption of a plan relating to the liquidation or dissolution of the
Company;
(3) the
consummation of any transaction (including, without limitation, any merger
or
consolidation) the result of which is that any “person” (as defined above)
becomes the Beneficial Owner, directly or indirectly, of more than 20% of
the
Voting Stock of the Company, measured by voting power rather than number
of
shares;
(4) the
first
day on which a majority of the members of the Board of Directors of the Company
are not Continuing Directors; or
(5) the
Company consolidates with, or merges with or into, any Person, or any Person
consolidates with, or merges with or into, the Company, in any such event
pursuant to a transaction in which any of the outstanding Voting Stock of
the
Company or such other Person is converted into or exchanged for cash, securities
or other property, other than any such transaction where the Voting Stock
of the
Company outstanding immediately prior to such transaction is converted into
or
exchanged for Voting Stock (other than Disqualified Stock) of the surviving
or
transferee Person constituting a majority of the outstanding shares of such
Voting Stock of such surviving or transferee Person (immediately after giving
effect to such issuance).
“Clearstream” means
Clearstream Banking S.A. and any successor thereto.
“Code”
means
the U.S. Internal Revenue Code of 1986, as amended.
“Commission”
means
the Securities and Exchange Commission.
“Company”
means
Centene Corporation, and any successor thereto.
“Consolidated
Cash Flow”
means,
with respect to any specified Person for any period, the Consolidated Net
Income
of such Person for such period plus:
(1) provision
for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes
was
deducted in computing such Consolidated Net Income; plus
(2) consolidated
interest expense of such Person and its Restricted Subsidiaries for such
period,
whether paid or accrued and whether or not capitalized (including, without
limitation, amortization of debt issuance costs and original issue discount,
non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with Capital
Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of
letter
of credit or bankers’ acceptance financings, and net of the effect of
all
4
payments
made or received pursuant to Hedging Obligations), to the extent that any
such
expense was deducted in computing such Consolidated Net Income; plus
(3) depreciation,
amortization (including amortization of goodwill and other intangibles but
excluding amortization of prepaid cash expenses that were paid in a prior
period) and other non-cash expenses (excluding any such non-cash expense
to the
extent that it represents an accrual of or reserve for expenses to be paid
in
cash in any future period) of such Person and its Restricted Subsidiaries
for
such period to the extent that such depreciation, amortization and other
non-cash expenses were deducted in computing such Consolidated Net Income;
plus
(4) any
impairment charge or asset write-off pursuant to Financial Accounting Statement
No. 144 and No. 142 or any successor pronouncement; minus
(5) non-cash
items increasing such Consolidated Net Income for such period, other than
the
accrual of revenue in the ordinary course of business,
in
each
case, on a consolidated basis and determined in accordance with
GAAP.
Notwithstanding
the preceding, the provision for taxes based on the income or profits of,
and
the depreciation, amortization, impairment and other non-cash charges of,
a
Restricted Subsidiary of the Company shall be added to Consolidated Net Income
to compute Consolidated Cash Flow of the Company only to the extent that
a
corresponding amount would be permitted at the date of determination to be
dividended to the Company by such Restricted Subsidiary without prior approval
(that has not been obtained), pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Subsidiary or its
stockholders.
“Consolidated
Net Income”
means,
with respect to any Person for any period, the consolidated Net Income of
such
Person and its Restricted Subsidiaries determined in accordance with GAAP;
provided,
however,
that
there will not be included in such Consolidated Net Income:
(1) any
Net
Income (loss) of any Person if such Person is not a Restricted Subsidiary
except
that:
(a) subject
to the limitations contained in clauses (3) and (4) below, the Company’s equity
in the Net Income of any such Person for such period will be included in
such
Consolidated Net Income up to the aggregate amount of cash actually distributed
by such Person during such period to the Company or a Restricted Subsidiary
as a
dividend or other distribution (subject, in the case of a dividend or other
distribution to a Restricted Subsidiary, to the limitations contained in
clause
(2) below); and
(b) the
Company’s equity in a net loss of any such Person (other than an Unrestricted
Subsidiary) for such period will be included in determining such Consolidated
Net Income to the extent such loss has been funded with cash from the Company
or
a Restricted Subsidiary;
(2) any
Net
Income (but not loss) of any Restricted Subsidiary of the Company if such
Subsidiary is subject to restrictions, directly or indirectly, on the payment
of
dividends or the making of distributions by such Restricted Subsidiary, directly
or indirectly, to the Company, except that:
(a) subject
to the limitations contained in clauses (3) and (4) below, the Company’s equity
in the Net Income of any such Restricted Subsidiary for such period will
be
included in such Consolidated Net Income up to the aggregate amount of cash
actually distributed by such Restricted Subsidiary during such period to
the
Company or another Restricted Subsidiary as a dividend (subject, in the case
of
a dividend to another Restricted Subsidiary, to the limitations contained
in
this clause); and
5
(b) the
Company’s equity in a net loss of any such Restricted Subsidiary for such period
will be included in determining such Consolidated Net Income;
(3) Net
Income or loss of any Person for any period prior to the acquisition of such
Person by the Company or a Restricted Subsidiary, or the Net Income or loss
of
any Person who succeeds to the obligations of the Company under this Indenture
for any period prior to such succession; and
(4) the
cumulative effect of a change in accounting principles.
“Consolidated
Total Assets”
means,
as of the date of any determination thereof, the total assets of the Company
and
its consolidated Subsidiaries calculated in accordance with GAAP on a
consolidated basis as of such date.
“Consolidated
Total Foreign Assets”
means,
as of the date of any determination thereof, the total assets of the Company’s
Foreign Restricted Subsidiaries calculated in accordance with GAAP on a
consolidated basis as of such date.
“Continuing
Directors”
means,
as of any date of determination, any member of the Board of Directors of
the
Company who:
(1) was
a
member of such Board of Directors on the date of this Indenture; or
(2) was
nominated for election or elected to such Board of Directors with the approval
of a majority of the Continuing Directors who were members of such Board
at the
time of such nomination or election.
“Corporate
Trust Office of the Trustee”
shall
be at the address of the Trustee specified in Section 12.02 hereof, or such
other address as to which the Trustee may give notice to the
Company.
“Credit
Agreement”
means
the Credit Agreement, dated as of September 14, 2004, among the Company,
the
various financial institutions named therein, as lenders, and LaSalle Bank
National Association, as Administrative Agent and Arranger, as amended by
that
certain Amendment No. 1 thereto dated as of July 18, 2005, as amended by
that
certain Amendment No. 2 thereto dated as of September 9, 2005, as amended
by
that certain Amendment No. 3 thereto dated as of November 7, 2005, as amended
by
that certain Amendment No. 4 thereto dated as of April 7, 2006 and as amended
by
that certain Amendment No. 5 thereto dated as of September 22, 2006, including
any related notes, Guarantees, collateral documents, instruments and agreements
executed in connection therewith, and in each case as amended, restated,
modified, renewed, refunded, replaced or refinanced (in whole or in part)
from
time to time, whether or not with the same lenders or agent.
“Credit
Facilities”
means,
one or more debt facilities or agreements (including, without limitation,
the
Credit Agreement) or commercial paper facilities, in each case with banks
or
other institutional lenders or investors providing for revolving credit loans,
term loans, receivables financing (including through the sale of receivables
to
such lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced (including
any
agreement to extend the maturity thereof and adding additional borrowers
or
guarantors) in whole or in part from time to time under the same or any other
agent, lender or group of lenders and including increasing the amount of
available borrowings thereunder; provided
that
such increase is permitted by Section 4.09 hereof.
“Custodian”
means,
with respect to the Notes issuable or issued in whole or in part in global
form,
the Person specified in Section 2.03(c) as Custodian with respect to the
Notes,
and any and all successors thereto appointed as custodian hereunder and having
become such pursuant to the applicable provisions of this
Indenture.
“Default”
means
any event that is, or with the passage of time or the giving of notice or
both
would be, an Event of Default.
6
“Definitive
Note”
means
a
certificated Note registered in the name of the Holder thereof and issued
in
accordance with Section 2.06 or 2.10 hereof, in substantially the form of
Exhibit A hereto except that such Note shall not bear the Global Note Legend
and
shall not have the “Schedule of Exchanges of Interests in the Global Note”
attached thereto.
“Depositary”
means,
with respect to the Notes issuable or issued in whole or in part in global
form,
the Person specified in Section 2.03(b) hereof as the Depositary with respect
to
the Notes, and any and all successors thereto appointed as depositary hereunder
and having become such pursuant to the applicable provisions of this
Indenture.
“Disqualified
Stock”
means
any Capital Stock that, by its terms (or by the terms of any security into
which
it is convertible, or for which it is exchangeable, in each case at the option
of the holder of the Capital Stock), or upon the happening of any event,
matures
or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the holder of the Capital Stock,
in
whole or in part, on or prior to the date that is 91 days after the date
on
which the Notes mature. Notwithstanding the preceding sentence, any Capital
Stock that would constitute Disqualified Stock solely because the holders
of the
Capital Stock have the right to require the Company to repurchase such Capital
Stock upon the occurrence of a change of control or an asset sale will not
constitute Disqualified Stock if the terms of such Capital Stock provide
that
the Company may not repurchase or redeem any such Capital Stock pursuant
to such
provisions unless such repurchase or redemption complies with Section 4.10
hereof.
“Distribution
Compliance Period”
means
the 40-day distribution compliance period as defined in Regulation
S.
“Equity
Interests”
means
Capital Stock and all warrants, options or other rights to acquire Capital
Stock
(but excluding any debt security that is convertible into, or exchangeable
for,
Capital Stock).
“Equity
Offering”
means
any
private or public sale of common stock of the
Company.
“Euroclear”
means
Euroclear Bank, S.A./N.V., as operator of the Euroclear systems, and any
successor thereto.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Exchange
Notes”
means
notes issued in exchange for the Initial Notes or any Additional Notes pursuant
to a Registration Rights Agreement.
“Exchange
Offer”
has
the
meaning set forth in a Registration Rights Agreement relating to an exchange
of
Notes registered under the Securities Act for Notes not so
registered.
“Exchange
Offer Registration Statement”
has
the
meaning set forth in a Registration Rights Agreement.
“Existing
Indebtedness”
means
Indebtedness existing on the Issue Date (other than Indebtedness under this
Indenture and the Credit Agreement).
“Fair
Market Value”
means,
with respect to any Asset Sale or Restricted Payment or other item, the price
that would be negotiated in an arms’-length transaction for cash between a
willing seller and a willing and able buyer, neither of which is under any
compulsion to complete the transaction, as such price is determined in good
faith by an officer of the Company if such value is $2.5 million or greater;
provided,
however, if
the
value of such Asset Sale or Restricted Payment or other item is $5.0 million
or
greater, such determination shall be made in good faith by the Board of
Directors of the Company; and provided
further if
the
value of such Asset Sale or Restricted Payment or other item is $15.0 million
or
greater, such determination shall be made by an accounting, appraisal or
investment banking firm of national standing that is not an Affiliate of
the
Company.
7
“Fixed
Charge Coverage Ratio”
means
with respect to any specified Person for any period, the ratio of the
Consolidated Cash Flow of such Person and its Restricted Subsidiaries for
such
period to the Fixed Charges of such Person and its Restricted Subsidiaries
for
such period. In the event that the specified Person or any of its Restricted
Subsidiaries incurs, assumes, guarantees, repays, repurchases or redeems
any
Indebtedness (other than ordinary working capital borrowings) or issues,
repurchases or redeems preferred stock subsequent to the commencement of
the
period for which the Fixed Charge Coverage Ratio is being calculated and
on or
prior to the date on which the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the “Calculation Date”), then the Fixed Charge
Coverage Ratio will be calculated giving pro forma effect to such incurrence,
assumption, guarantee, repayment, repurchase or redemption of Indebtedness,
or
such issuance, repurchase or redemption of preferred stock, and the use of
the
proceeds therefrom as if the same had occurred at the beginning of the
applicable four-quarter reference period.
In
addition, for purposes of calculating the Fixed Charge Coverage
Ratio:
(1) acquisitions
that have been made by the specified Person or any of its Restricted
Subsidiaries, including through mergers or consolidations and including any
related financing transactions, during the four-quarter reference period
or
subsequent to such reference period and on or prior to the Calculation Date
will
be given pro forma effect (calculated in accordance with Regulation S-X)
as if
they had occurred on the first day of the four-quarter reference
period;
(2) the
Consolidated Cash Flow attributable to discontinued operations, as determined
in
accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, will be excluded; and
(3) the
Fixed
Charges attributable to discontinued operations, as determined in accordance
with GAAP, and operations or businesses disposed of prior to the Calculation
Date, will be excluded, but only to the extent that the obligations giving
rise
to such Fixed Charges will not be obligations of the specified Person or
any of
its Restricted Subsidiaries following the Calculation Date.
“Fixed
Charges”
means,
with respect to any specified Person for any period, the sum, without
duplication, of:
(1) the
consolidated interest expense of such Person and its Restricted Subsidiaries
for
such period, whether paid or accrued, including, without limitation,
amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt, commissions,
discounts and other fees and charges incurred in respect of letter of credit
or
bankers’ acceptance financings, and net of the effect of all payments made or
received pursuant to Hedging Obligations; plus
(2) the
consolidated interest expense of such Person and its Restricted Subsidiaries
that was capitalized during such period; plus
(3) any
interest expense on Indebtedness of another Person that is guaranteed by
such
Person or one of its Restricted Subsidiaries or secured by a Lien on assets
of
such Person or one of its Restricted Subsidiaries, whether or not such Guarantee
or Lien is called upon; plus
(4) the
product of (a) all dividends, whether paid or accrued and whether or not
in
cash, on any series of preferred stock of such Person or any of its Restricted
Subsidiaries, other than dividends on Equity Interests payable (x) solely
in
Equity Interests of the Company (other than Disqualified Stock) or (y) to
the
Company or a Restricted Subsidiary of the Company, times (b) a fraction,
the
numerator of which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of such Person,
expressed as a decimal, in each case, on a consolidated basis and in accordance
with GAAP.
8
“Foreign
Restricted Subsidiary”
means
any Restricted Subsidiary that is not formed under the laws of the United
States
of America or any State thereof.
“GAAP”
means
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute
of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity
as
have been approved by a significant segment of the accounting profession,
which
are in effect on the Issue Date.
“Global
Note Legend”
means
the legend set forth in Section 2.06(g)(ii), which is required to be placed
on
all Global Notes issued under this Indenture.
“Global
Notes”
means
the global Notes in the form of Exhibit A hereto issued in accordance with
Article 2 hereof.
“Guarantee”
means
a
guarantee other than by endorsement of negotiable instruments for collection
in
the ordinary course of business, direct or indirect, in any manner including,
without limitation, by way of a pledge of assets or through letters of credit or
reimbursement agreements in respect thereof, of all or any part of any
Indebtedness.
“Guarantor”
means
any Subsidiary that executes a Subsidiary Guarantee in accordance with the
provisions of this Indenture and its respective successors and
assigns.
“Hedging
Obligations”
means,
with respect to the Company or any of its Restricted Subsidiaries, the
obligations of such Person under interest rate swap agreements, interest
rate
cap agreements and interest rate collar agreements and other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates with respect to any floating rate Indebtedness that is permitted to
be
incurred under this Indenture.
“Holder”
means
a
Person in whose name a Note is registered in the Security Register.
“IAI
Global Note”
means
a
Global Note in the form of Exhibit A hereto bearing the Global Note Legend
and
the Private Placement Legend and deposited with and registered in the name
of
the Depositary or its nominee issued in a denomination equal to the outstanding
principal amount of the Notes sold to Institutional Accredited Investors,
if
any, to the extent required by the Applicable Procedures.
“Indebtedness”
means,
with respect to any specified Person, any indebtedness of such Person, whether
or not contingent:
(1) in
respect of borrowed money;
(2) evidenced
by bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof);
(3) in
respect of banker’s acceptances;
(4) representing
Capital Lease Obligations;
(5) representing
the balance deferred and unpaid of the purchase price of any property, except
any such balance that constitutes an accrued expense or Trade
Payable;
(6) representing
any Hedging Obligations; or
(7) Disqualified
Stock of such Person or a Restricted Subsidiary in an amount equal to the
greater of the maximum mandatory redemption or repurchase price (not including,
in either case, any redemption or repurchase premium) or the liquidation
preference thereof,
9
if
and to
the extent any of the preceding items (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of the specified
Person prepared in accordance with GAAP. In addition, the term “Indebtedness”
includes all Indebtedness of others secured by a Lien on any asset of the
specified Person (whether or not such Indebtedness is assumed by the specified
Person) and, to the extent not otherwise included, the Guarantee by the
specified Person of any Indebtedness of any other Person. For the avoidance
of
doubt, to the extent any Indebtedness incurred in connection with the Centene
Plaza Project appears as a liability on the balance sheet of the Company
or one
of its Restricted Subsidiaries and is non-recourse to the Company and its
Restricted Subsidiaries, such Indebtedness will not constitute “Indebtedness”
for all purposes under this Indenture.
The
amount of any Indebtedness outstanding as of any date will be:
(a) the
accreted value of the Indebtedness, in the case of any Indebtedness issued
with
original issue discount; and
(b) the
principal amount of the Indebtedness, together with any interest on the
Indebtedness that is more than 30 days past due, in the case of any other
Indebtedness.
“Indenture”
means
this instrument, as originally executed or as it may from time to time be
supplemented or amended in accordance with Article 9 hereof.
“Indirect
Participant”
means
a
Person who holds a beneficial interest in a Global Note through a
Participant.
“Initial
Notes”
means
$
175,000,000 aggregate principal amount of Notes issued under this Indenture
on
the date hereof.
“Initial
Purchasers”
means
Banc of America Securities LLC, Wachovia Capital Markets, LLC, Merrill, Lynch,
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ABN AMRO Incorporated, ▇▇▇▇▇ &
Company LLC and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
“Institutional
Accredited Investor”
means
an institution that is an “accredited investor” as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act.
“Interest
Payment Dates”
shall
have the meaning set forth in paragraph 1 of each Note.
“Issue
Date”
means
March 22, 2007.
“Investment
Grade Rating”
means
a
rating equal to or higher than Baa3 (or the equivalent) by ▇▇▇▇▇’▇ Investors
Service, Inc. and BBB- (or the equivalent) by Standard & Poor’s Ratings
Group, Inc., in each case, with a stable or better outlook.
“Investments”
means,
with respect to any Person, all direct or indirect investments by such Person
in
other Persons (including Affiliates) in the forms of loans (including Guarantees
or other obligations), advances or capital contributions (excluding commission,
travel and similar advances, fees and compensation paid to officers, directors
and employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. If the Company
or any Subsidiary of the Company sells or otherwise disposes of any Equity
Interests of any direct or indirect Subsidiary of the Company such that,
after
giving effect to any such sale or disposition, such Person is no longer a
Subsidiary of the Company, the Company will be deemed to have made an Investment
on the date of any such sale or disposition equal to the Fair Market Value
of
the Equity Interests of such Subsidiary not sold or disposed of in an amount
determined as provided in Section 4.10 (c) hereof. The acquisition by the
Company or any Subsidiary of the Company of a Person that holds an Investment
in
a third Person will be deemed to be an Investment by the Company or such
Subsidiary in
10
such
third Person in an amount equal to the Fair Market Value of the Investment
held
by the acquired Person in such third Person in an amount determined as provided
in Section 4.10 (c) hereof.
“Legal
Holiday”
means
a
Saturday, a Sunday or a day on which banking institutions in the City of
New
York, the city in which the Corporate Trust Office of the Trustee is located
or
any other place of payment on the Notes are authorized by law, regulation
or
executive order to remain closed.
“Letter
of Transmittal”
means
the letter of transmittal, or its electronic equivalent in accordance with
the
Applicable Procedures, to be prepared by the Company and sent to all Holders
of
the Initial Notes or any Additional Notes for use by such Holders in connection
with an Exchange Offer.
“Lien”
means,
with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed,
recorded or otherwise perfected under applicable law, including any conditional
sale or other title retention agreement, any lease in the nature thereof,
any
option or other agreement to sell or give a security interest in and any
filing
of or agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction.
“Net
Income”
means,
with respect to any specified Person, the net income (loss) of such Person,
determined in accordance with GAAP and before any reduction in respect of
preferred stock dividends, excluding, however:
(1) any
gain
(but not loss), together with any related provision for taxes on such gain
(but
not loss), realized in connection with: (a) any Asset Sale; or (b) the
disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or
any of
its Restricted Subsidiaries; and
(2) any
extraordinary gain (but not loss), together with any related provision for
taxes
on such extraordinary gain (but not loss).
“Net
Proceeds”
means
the aggregate cash or Cash Equivalents received by the Company or any of
its
Restricted Subsidiaries in respect of any Asset Sale (including, without
limitation, any cash received upon the sale or other disposition of any non-cash
consideration received in any Asset Sale), net of the direct costs relating
to
such Asset Sale, including, without limitation, legal, accounting and investment
banking fees, and sales commissions, and any relocation expenses incurred
as a
result of the Asset Sale, taxes paid or payable as a result of the Asset
Sale,
in each case, after taking into account any available tax credits or deductions
and any tax sharing arrangements, and amounts required to be applied to the
repayment of Indebtedness secured by a Lien on the asset or assets that were
the
subject of such Asset Sale, and any reserve established in accordance with
GAAP
against liabilities associated with such Asset Sale or any amount placed
in
escrow for adjustment in respect of the purchase price of such Asset Sale,
until
such time as such reserve is reversed or such escrow arrangement is terminated,
in which case Net Proceeds shall be increased by the amount of the reserve
so
reversed or the amount returned to the Company or its Restricted Subsidiaries
from such escrow agreement, as the case may be.
“Non-recourse
Debt”
means Indebtedness:
(1) as
to
which neither the Company nor any of its Restricted Subsidiaries (a) provides
credit support of any kind (including any undertaking, agreement or instrument
that would constitute Indebtedness), (b) is directly or indirectly liable
as a
guarantor or otherwise, or (c) constitutes the lender;
(2) no
default with respect to which (including any rights that the holders thereof
may
have to take enforcement action against an Unrestricted Subsidiary) would
permit
upon notice, lapse of time of both any holder of any other Indebtedness (other
than the Notes) of the Company or any of its Restricted Subsidiaries to declare
a default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity; and
11
(3) as
to
which the lenders have been notified in writing that they will not have any
recourse to the stock or assets of the Company or any of its Restricted
Subsidiaries.
“Obligations”
means
any principal, interest, penalties, fees, indemnifications, reimbursements,
damages and other liabilities payable under the documentation governing any
Indebtedness.
“Officer”
means
the Chief Executive Officer, the President, the Chief Financial Officer or
any
Senior Vice President of the Company.
“Officers’
Certificate”
means
a
certificate signed by two Officers of the Company, at least one of whom shall
be
the principal executive officer or principal financial officer of the Company,
and delivered to the Trustee.
“Opinion
of Counsel”
means
a
written opinion from legal counsel which meets the requirements of Section
12.05
hereof. The counsel may be an employee of or counsel to the Company or the
Trustee.
“Participant”
means,
with respect to the Depositary, Euroclear or Clearstream, a Person who has
an
account with the Depositary, Euroclear or Clearstream, respectively, and,
with
respect to DTC, shall include Euroclear and Clearstream.
“Permitted
Business”
means
the lines of business conducted by the Company and its Restricted Subsidiaries
on the date hereof and any other healthcare business related, ancillary or
complementary (including any reasonable extension, development or expansion)
to
any such business.
“Permitted
Investments”
means:
(1) any
Investment in the Company or a Restricted Subsidiary;
(2) any
Investment in Cash Equivalents;
(3) any
Investment by the Company or any of its Restricted Subsidiaries in a Person,
if
as a result of such Investment:
(a) such
Person becomes a Restricted Subsidiary; or
(b) such
Person is merged, consolidated or amalgamated with or into, or transfers
or
conveys substantially all of its assets to, or is liquidated into, the Company
or a Subsidiary;
(4) any
Investment made as a result of the receipt of non-cash consideration from
an
Asset Sale that was made pursuant to and in compliance with Section 4.12
hereof;
(5) any
acquisition of assets solely in exchange for the issuance of Equity Interests
(other than Disqualified Stock) of the Company;
(6) any
Investments received in compromise of obligations of trade creditors, health
care providers or customers that were incurred in the ordinary course of
business, including pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of any trade creditor, health
care
provider or customer;
(7) Hedging
Obligations;
(8) Investments
the payment for which is Capital Stock (other than Disqualified Stock) of
the
Company;
12
(9) Investments
in prepaid expenses, negotiable instruments held for collection, utility
and
workers compensation, performance and similar deposits made in the ordinary
course of business;
(10) loans
and
advances to non-executive officers and employees of the Company or any of
its
Restricted Subsidiaries in the ordinary course of business in accordance
with
the past practices of the Company or any of its Restricted Subsidiaries in
an
aggregate amount for all such loans and advances not to exceed $3.0 million
at
any time outstanding;
(11) Investments
existing on the Issue Date;
(12) Permitted
Market Investments;
(13) Investments
in the Equity Interests of the joint venture created in connection with the
Centene Plaza Divestiture;
(14) Investments
in Permitted Joint Ventures in an amount not to exceed at any one time
outstanding 5% of the Company’s Consolidated Total Assets; and
(15) other
Investments in any Person having an aggregate Fair Market Value (measured
on the
date each such investment was made and without giving effect to subsequent
changes in value), when taken together with all other Investments made pursuant
to this clause (15) that are at the time outstanding, not to exceed the greater
of (x) $35.0 million or (y) 4% of the Company’s Consolidated Total
Assets.
“Permitted
Joint Venture”
means
any joint venture that the Company or any of its Restricted Subsidiaries
is a
party to that is engaged in a Permitted Business.
“Permitted
Liens”
means:
(1) Liens
in
favor of the Company or its Restricted Subsidiaries;
(2) Liens
on
any property or assets of a Person existing at the time such Person is merged
with or into or consolidated with the Company or any Restricted Subsidiary
of
the Company; provided
that
such Liens were in existence prior to such merger or consolidation and not
incurred in contemplation thereof and do not extend to any property or assets
other than those of the Person merged into and consolidated with the Company
or
the Restricted Subsidiary;
(3) Liens
for
taxes or other governmental charges not at the time delinquent or thereafter
payable without penalty or being contested in good faith by appropriate
proceedings and, in each case, for which it maintains adequate
reserves;
(4) Liens
on
any property or assets existing at the time of the acquisition thereof by
the
Company or any Restricted Subsidiary of the Company; provided
that
such
Liens were in existence prior to the contemplation of such acquisition and
do
not extend to any property or assets of the Company or the Restricted
Subsidiary;
(5) Liens
to
secure the performance of statutory obligations, surety or appeal bonds,
government contracts, performance bonds or other obligations of a like nature
incurred in the ordinary course of business (such as (i) Liens of landlords,
carriers, warehousemen, mechanics and materialmen and other similar Liens
imposed by law and (ii) Liens in the form of deposits or pledges incurred
in
connection with worker’s compensation, unemployment compensation and other types
of social security (excluding Liens arising under Employee Retirement Income
Security Act of 1974));
(6) Liens
existing on the Issue Date;
13
(7) Liens
arising from Uniform Commercial Code financing statement filings regarding
operating leases entered into by the Company and its Restricted Subsidiaries
in
the ordinary course of business;
(8) Liens
securing Permitted Refinancing Indebtedness incurred to refinance Indebtedness
that was previously so secured as permitted by this Indenture; provided
that any
such Lien is limited to all or part of the same property or assets (plus
improvements, accessions, proceeds or dividends or distributions in respect
thereof) that secured (or, under the written arrangements under which the
original Lien arose, could secure) the Indebtedness being refinanced or is
in
respect of property that is the security for a Permitted Lien
hereunder;
(9) Liens
securing Hedging Obligations of the Company or any of its Restricted
Subsidiaries, which transactions or obligations are incurred in the ordinary
course of business for bona fide hedging purposes (and not financing or
speculative purposes) of the Company or its Restricted Subsidiaries (as
determined in good faith by the Board of Directors or senior management of
the
Company);
(10) Liens
to
secure Indebtedness (including Capital Lease Obligations) permitted by clause
(4) under Section 4.09(b) hereof; provided
that
any
such Lien (i) covers only the assets acquired, constructed or improved with
such
Indebtedness and (ii) is created within 180 days of such acquisition,
construction or improvement;
(11) Liens
to
secure Indebtedness of Foreign Restricted Subsidiaries permitted by clause
(11)
under Section 4.09(b) hereof; provided
that
any
such Lien covers only the assets of such Foreign Restricted
Subsidiaries;
(12) other
Liens incurred in the ordinary course of business of the Company and its
Restricted Subsidiaries with respect to Indebtedness in an aggregate principal
amount, together with all Indebtedness incurred to refund, refinance or replace
such Indebtedness (or refinancings, refundings or replacements thereof),
that
does not exceed 15% of the Company’s Consolidated Total Assets at any one time
outstanding; and
(13) Liens
required by any regulation, or order of or arrangement or agreement with
any
regulatory body or agency, so long as such Liens do not secure Indebtedness.
“Permitted
Market Investments”
means
any security that (i)(a) is of a type traded or quoted on any exchange or
recognized financial market, (b) can be readily liquidated or disposed of
on
such exchanges or markets and (c) other than in the case of an equity security,
has no lower than an “investment grade” rating from any nationally recognized
rating agency or (ii) satisfies the Company’s investment guidelines as approved
by the Board of Directors; provided
that the
aggregate amount of Permitted Market Investments consisting of common stock
shall not exceed 10% at any time.
“Permitted
Refinancing Indebtedness”
means
any Indebtedness of the Company or any of its Restricted Subsidiaries issued
in
exchange for, or the net proceeds of which are used to extend, refinance,
renew,
replace, defease or refund other Indebtedness of the Company or any of its
Restricted Subsidiaries (other than intercompany Indebtedness); provided,
however, that:
(1) the
principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted
value, if applicable) of the Indebtedness extended, refinanced, renewed,
replaced, defeased or refunded (plus all accrued interest on the Indebtedness
and the amount of all expenses and premiums incurred in connection
therewith);
(2) such
Permitted Refinancing Indebtedness has a final maturity date the same as
or
later than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity of,
the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded;
14
(3) if
Subordinated Obligations are being extended, refinanced, renewed, replaced,
defeased or refunded, 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 Subordinated
Obligations being extended, refinanced, renewed, replaced, defeased or refunded;
and
(4) such
Indebtedness is incurred either by the Company or by the Subsidiary who is
the
obligor on the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded.
“Person”
means
any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability
company or government or other entity.
“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 any Note authenticated
and delivered under Section 2.07 in lieu of a lost, destroyed or stolen Note
shall be deemed to evidence the same Debt as the lost, destroyed or stolen
Note.
“Private
Placement Legend”
means
the legend set forth in Section 2.06(g)(i) hereof to be placed on all Notes
issued under this Indenture except as otherwise permitted by the provisions
of
this Indenture.
“QIB”
means
a
“qualified institutional buyer” as defined in Rule 144A.
“Ratings
Agency”
means
Standard & Poor’s Ratings Group, Inc. and ▇▇▇▇▇’▇ Investors Service, Inc. or
if Standard & Poor’s Ratings Group, Inc. or ▇▇▇▇▇’▇ Investors Service, Inc.
or both shall not make a rating on the Notes publicly available, a nationally
recognized statistical rating agency or agencies, as the case may be, selected
by the Company (as certified by a resolution of the Board of Directors) which
shall be substituted for Standard and Poor’s Ratings Group, Inc. or ▇▇▇▇▇’▇
Investors Service, Inc. or both, as the case may be.
“Registration
Rights Agreement”
means
the Registration Rights Agreement dated as of the Issue Date among the Company
and the Initial Purchasers named therein, as such agreement may be amended,
modified or supplemented from time to time and, with respect to any Additional
Notes, one or more registration rights agreements between the Company and
the
other parties thereto, as such agreement(s) may be amended, modified or
supplemented from time to time, relating to rights given by the Company to
the
purchasers of Additional Notes to register such Additional Notes, or exchange
such Additional Notes for registered Notes, under the Securities
Act.
“Regular
Record Date”
for
the
interest payable on any Interest Payment Date means the applicable date
specified as a “Record Date” on the face of the Note.
“Regulation
S”
means
Regulation S promulgated under the Securities Act.
“Regulation
S Global Note”
means
a
Global Note in the form of Exhibit A hereto bearing the Global Note Legend
and
the Private Placement Legend and deposited with and registered in the name
of
the Depository or its nominee, issued in a denomination equal to the outstanding
principal amount of the Notes sold for initial resale in reliance on Rule
903 of
Regulation S.
“Responsible
Officer,”
when
used with respect to the Trustee, means any officer within the Corporate
Trust
Department of the Trustee (or any successor group of the Trustee) with direct
responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom
such
matter is referred because of his or her knowledge of and familiarity with
the
particular subject. and who shall have direct responsibility for the
administration of this Indenture
“Restricted
Definitive Note”
means
one or more Definitive Notes bearing the Private Placement Legend.
15
“Restricted
Global Notes”
means
144A Global Notes, IAI Global Notes and Regulation S Global Notes.
“Restricted
Investment”
means
an Investment other than a Permitted Investment.
“Restricted
Subsidiary”
of
a
Person means any Subsidiary of the referent Person that is not an Unrestricted
Subsidiary.
“Rule
144”
means
Rule 144 promulgated under the Securities Act.
“Rule
144A”
means
Rule 144A promulgated under the Securities Act.
“Rule
903”
means
Rule 903 promulgated under the Securities Act.
“Rule
904”
means
Rule 904 promulgated under the Securities Act.
“Sale/Leaseback
Transaction”
means
an arrangement relating to property now owned or hereafter acquired whereby
the
Company or a Restricted Subsidiary thereof transfers such property to a Person
and the Company or a Restricted Subsidiary leases it from such Person.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Senior
Debt”
means:
(1) all
Indebtedness of the Company outstanding under Credit Facilities and all Hedging
Obligations with respect thereto;
(2) any
other
Indebtedness of the Company permitted to be incurred under the terms of this
Indenture, unless the instrument under which such Indebtedness is incurred
expressly provides that it is on a parity with or subordinated in right of
payment to the Notes; and
(3) all
Obligations with respect to the items listed in the preceding clauses (1)
and
(2).
Notwithstanding
anything to the contrary in the preceding, Senior Debt will not
include:
(a) any
liability for federal, state, local or other taxes owed or owing by the
Company;
(b) any
Indebtedness of the Company to any of its Subsidiaries or other
Affiliates;
(c) any
Trade
Payables; or
(d) the
portion of any Indebtedness that is incurred in violation of this
Indenture.
“Shelf
Registration Statement”
means
the registration statement relating to the registration of the Notes under
Rule
415 of the Securities Act, as may be set forth in a Registration Rights
Agreement.
“Significant
Subsidiary”
means
any Subsidiary that would be a “significant subsidiary” as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act,
as such
regulation is in effect on the Issue Date.
“Stated
Maturity”
means,
with respect to any installment of interest or principal on any series of
Indebtedness, the date on which the payment of interest or principal was
scheduled to be paid in the original documentation governing such Indebtedness,
and will not include any contingent obligations to repay, redeem or repurchase
any such interest or principal prior to the date originally scheduled for
the
payment thereof.
16
“Subordinated
Obligations”
means
any
Indebtedness of the
Company (whether
outstanding on the date hereof or thereafter incurred) that is subordinate
or
junior in right of payment to the Notes pursuant to a written agreement to
that
effect.
“Subsidiary”
means,
with respect to any specified Person:
(1) any
corporation, association or other business entity of which more than 50%
of the
total voting power of shares of Capital Stock entitled (without regard to
the
occurrence of any contingency) to vote in the election of directors, managers
or
trustees of the corporation, association or other business entity is at the
time
owned or controlled, directly or indirectly, by that Person or one or more
of
the other Subsidiaries of that Person (or a combination thereof);
and
(2) any
partnership (a) the sole general partner or the managing general partner
of
which is such Person or a Subsidiary of such Person or (b) the only general
partners of which are that Person or one or more Subsidiaries of that Person
(or
any combination thereof).
“Subsidiary
Guarantee”
means
a
Guarantee by each Guarantor of the Company’s obligations under this Indenture
and on the Notes, executed pursuant to Section 4.19 hereof.
“Tax
Sharing Agreement”
means
the tax sharing agreement, dated December 31, 2002, by and among the Company
and
each of its Subsidiaries party thereto.
“TIA”
means
the Trust Indenture Act of 1939, as amended, and the rules and regulations
thereunder.
“Total
Debt”
means
all Indebtedness of the Company and its Subsidiaries, determined on a
consolidated basis.
“Total
Debt to Consolidated Cash Flow Ratio”
means
as of the date of determination the ratio of Total Debt as of such date to
Consolidated Cash Flow for the twelve-month period ending on such
day.
“Trade
Payables”
means,
with respect to any Person, any accounts payable or any other indebtedness
or
monetary obligation to trade creditors, physicians, hospitals, health
maintenance organizations or other health care providers created, assumed
or
guaranteed by such Person or any of its Subsidiaries arising in the ordinary
course of business in connection with the acquisition of goods and
services.
“Treasury
Rate”
means,
at the time of computation, the yield to maturity of United States Treasury
Securities with a constant maturity (as compiled and published in the most
recent Federal Reserve Statistical Release H.15(519) which has become publicly
available at least two business days prior to the redemption date or, if
such
Statistical Release is no longer published, any publicly available source
of
similar market data) most nearly equal to the period from the redemption
date to
April 1, 2011; provided,
however,
that if
the period from the redemption date to April 1, 2011 is not equal to the
constant maturity of a United States Treasury Security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the
weekly
average yields of United States Treasury Securities for which such yields
are
given, except that if the period from the redemption date to April 1, 2011
is
less than one year, the weekly average yield on actually traded United States
Treasury Securities adjusted to a constant maturity of one year shall be
used.
“Trustee”
means
the Person named as the “Trustee” in the first paragraph of this instrument
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
Definitive Notes”
means
one or more Definitive Notes that do not and are not required to bear the
Private Placement Legend.
17
“Unrestricted
Global Notes”
means
one or more Global Notes that do not and are not required to bear the Private
Placement Legend and are deposited with and registered in the name of the
Depositary or its nominee.
“Unrestricted
Subsidiary”
means
any Subsidiary of the Company (or any successor to any of them) that is
designated by the Board of Directors as an Unrestricted Subsidiary pursuant
to a
Board Resolution, but only to the extent that such Subsidiary:
(1) has
no
Indebtedness other than Non-Recourse Debt;
(2) is
not
party to any agreement, contract, arrangement or understanding with the Company
or any Restricted Subsidiary of the Company unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to
the
Company or such Restricted Subsidiary than those that might be obtained at
the
time from Persons who are not Affiliates of the Company;
(3) is
a
Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (a) to subscribe for
additional Equity Interests or (b) to maintain or preserve such Person’s
financial condition or to cause such Person to achieve any specified levels
of
operating results;
(4) has
not
guaranteed or otherwise directly or indirectly provided credit support for
any
Indebtedness of the Company or any of its Restricted Subsidiaries;
and
(5) 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 a director or executive officer of the
Company
or any of its Restricted Subsidiaries.
Any
designation of a Subsidiary of the Company as an Unrestricted Subsidiary
will be
evidenced to the Trustee by filing with the Trustee a certified copy of the
Board Resolution giving effect to such designation and an Officers’ Certificate
certifying that such designation complied with the preceding conditions and
was
permitted by Section 4.10. If, at any time, any Unrestricted Subsidiary would
fail to meet the preceding requirements as an Unrestricted Subsidiary, it
will
thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture
and any Indebtedness of such Subsidiary will be deemed to be incurred by
a
Restricted Subsidiary of the Company as of such date and, if such Indebtedness
is not permitted to be incurred as of such date under Section 4.09, the Company
will be in default of such Section. The Board of Directors of the Company
may at
any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided
that
such designation will be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation will only be permitted if (1)
such
Indebtedness is permitted under Section 4.09, calculated on a pro forma basis
as
if such designation had occurred at the beginning of the four-quarter reference
period; and (2) no Default or Event of Default would be in existence following
such designation.
“U.S.
Government Securities”
means
direct obligations (or certificates representing an ownership interest in
such
obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit
of
the United States of America is pledged and which are not callable or redeemable
at the issuer’s option.
“Voting
Stock”
of
any
Person as of any date means the Capital Stock of such Person that is at the
time
entitled to vote in the election of the Board of Directors of such
Person.
“Weighted
Average Life to Maturity”
means,
when applied to any Indebtedness at any date, the number of years obtained
by
dividing:
(1) the
sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at
18
final
maturity, in respect of the Indebtedness, by (b) the number of years (calculated
to the nearest one-twelfth) that will elapse between such date and the making
of
such payment; by
(2) the
then
outstanding principal amount of such Indebtedness.
Section
1.02. Other
Definitions.
|
Term
|
|
Defined
in
Section
|
| “Acceleration Notice” |
6.02
|
|
| “Affiliate Transaction” |
4.14
|
|
| “Asset Sale Offer” |
4.12
|
|
| “Authentication Order” |
2.02
|
|
| “Benefited Party” |
10.01
|
|
| “Change of Control Amount” |
4.17
|
|
| “Change of Control Offer” |
4.17
|
|
| “Covenant Defeasance” |
8.03
|
|
| “DTC” |
2.03
|
|
| “Event of Default” |
6.01
|
|
| “Legal Defeasance” |
8.02
|
|
| “losses” |
7.07
|
|
| “Offer Amount” |
3.09
|
|
| “Offer Period” |
3.09
|
|
| “Offer to Purchase” |
3.09
|
|
| “Paying Agent” |
2.03
|
|
| “Purchase Date” |
3.09
|
|
| “Purchase Price” |
3.09
|
|
| “Registrar” |
2.03
|
|
| “Security Register” |
2.03
|
Section
1.03. Incorporation
by Reference of Trust Indenture Act.
(a) Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture.
(b) The
following TIA terms used in this Indenture have the following
meanings:
“indenture
securities”
means
the Notes and the Subsidiary Guarantees, if any;
“indenture
security holder”
means a
Holder of a Note;
“indenture
to be qualified”
means
this Indenture;
“indenture
trustee”
or
“institutional
trustee”
means
the Trustee; and
“obligor”
on the
Notes means the Company and any successor obligor upon the Notes.
(c) All
other
terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by Commission rule under the TIA
and not
otherwise defined herein have the meanings so assigned to them either in
the
TIA, by another statute or Commission rule, as applicable.
Section
1.04. Rules
of Construction.
(a) Unless
the context otherwise requires:
19
(b) a
term has the
meaning assigned to it;
(i) an
accounting term not otherwise defined herein has the meaning assigned to
it in
accordance with GAAP;
(ii) “or”
is
not exclusive;
(iii) words
in
the singular include the plural, and in the plural include the
singular;
(iv) all
references in this instrument to “Articles,” “Sections” and other subdivisions
are to the designated Articles, Sections and subdivisions of this instrument
as
originally executed;
(v) 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.
(vi) “including”
means “including without limitation;”
(vii) provisions
apply to successive events and transactions; and
(viii) references
to sections of or rules under the Securities Act, the Exchange Act or the
TIA
shall be deemed to include substitute, replacement or successor sections
or
rules adopted by the Commission from time to time thereunder.
ARTICLE
2.
THE
NOTES
Section
2.01. Form
and Dating.
(a) General.
The
Notes and the Trustee’s certificate of authentication shall be substantially in
the form included in Exhibit A hereto, which is hereby incorporated in and
expressly made part of this Indenture. The Notes may have notations, legends
or
endorsements required by law, exchange rule or usage in addition to those
set
forth on Exhibit A. Each Note shall be dated the date of its authentication.
The
Notes shall be in denominations of $1,000 and integral multiples thereof.
The
terms and provisions contained in the Notes shall constitute a part of this
Indenture and 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. To the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern
and
be controlling.
(b) Form
of Notes.
Notes
shall be issued initially in global form and shall be substantially in the
form
of Exhibit A attached hereto (including the Global Note Legend thereon and
the
“Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes
issued in definitive form shall be substantially in the form of Exhibit A
attached hereto (but without the Global Note Legend thereon and without the
“Schedule of Exchanges of Interests in the Global Note” attached thereto). Each
Global Note shall represent such aggregate principal amount of the outstanding
Notes as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of outstanding Notes from time to
time
endorsed thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions and transfers of interests
therein. Any endorsement of a Global Note to reflect the amount of any increase
or decrease in the aggregate principal amount of outstanding Notes represented
thereby shall be made by the Trustee or the Custodian, at the direction of
the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06 hereof.
(c) Book-Entry
Provisions.
This
Section 2.01(c) shall apply only to Global Notes deposited with the Trustee,
as
custodian for the Depositary. Participants and Indirect Participants shall
have
no rights under this Indenture or any Global Note with respect to any Global
Note held on their behalf by the Depositary or by the Trustee as custodian
for
the Depositary, and the Depositary shall be treated by the Company, the Trustee
and any
20
(d) 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 impair, as between the Depositary and its Participants
or
Indirect Participants, the Applicable Procedures or the operation of customary
practices of the Depositary governing the exercise of the rights of a Holder
of
a beneficial interest in any Global Note.
(e) Euroclear
and Clearstream Procedures Applicable.
The
provisions of the “Operating Procedures of the Euroclear System” and “Terms and
Conditions Governing Use of Euroclear” and the “General Terms and Conditions of
Clearstream” and “Customer Handbook” of Clearstream shall be applicable to
transfers of beneficial interests in Global Notes that are held by Participants
through Euroclear or Clearstream.
(f) Certificated
Securities.
The
Company shall exchange Global notes for Definitive Notes if: (1) at any time
the
Depositary notifies the Company that it is unwilling or unable to continue
to
act as Depositary for the Global Notes or if at any time the Depositary shall
no
longer be eligible to act as such because it ceases to be a clearing agency
registered under the Exchange Act, and, in either case, the Company shall
not
have appointed a successor Depositary within 120 days after the Company receives
such notice or becomes aware of such ineligibility, or (2) upon written request
of a Holder or the Trustee if a Default or Event of Default shall have occurred
and be continuing.
Upon
the
occurrence of any of the events set forth in clauses (1) or (2) above, the
Company shall execute, and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate and deliver,
Definitive Notes, in authorized denominations, in an aggregate principal
amount
equal to the principal amount of the Global Notes in exchange for such Global
Notes.
Upon
the
exchange of a Global Note for Definitive Notes, such Global Note shall be
cancelled by the Trustee or an agent of the Company or the Trustee. Definitive
Notes issued in exchange for a Global Note pursuant to this Section 2.01
shall
be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its Participants or its Applicable
Procedures, shall instruct the Trustee or an agent of the Company or the
Trustee
in writing. The Trustee or such agent shall deliver such Definitive Notes
to or
as directed by the Persons in whose names such Definitive Notes are so
registered or to the Depositary.
Section
2.02. Execution
and Authentication.
(a) One
Officer shall execute the Notes on behalf of the Company by manual or facsimile
signature.
(b) If
an
Officer whose signature is on a Note no longer holds that office at the time
a
Note is authenticated by the Trustee, the Note shall nevertheless be
valid.
(c) A
Note
shall not be valid until authenticated by the manual signature of the Trustee.
The signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
(d) The
Trustee shall, upon a written order of the Company signed by an Officer (an
“Authentication
Order”),
authenticate Notes for issuance.
(e) The
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Notes. Unless otherwise provided in such appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so.
Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent shall have the same
rights
as the Trustee to deal with Holders, the Company or an Affiliate of the
Company.
21
(f)
Registrar and Paying Agent.
(g) The
Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“Registrar”)
and an
office or agency where Notes may be presented for payment (“Paying
Agent”).
The
Registrar shall keep a register (the “Security
Register”)
of the
Notes and of their transfer and exchange. The Company may appoint one or
more
co-registrars and one or more additional paying agents. The term “Registrar”
includes any co-registrar and the term “Paying Agent” includes any additional
paying agent. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company shall notify the Trustee in writing of
the
name and address of any Agent not a party to this Indenture. The Trustee
will
initially act as Paying Agent and Registrar, pursuant to the terms of this
Indenture. The Company or any of its Subsidiaries may act as Paying Agent
or
Registrar.
(h) The
Company initially appoints The Depository Trust Company (“DTC”)
to act
as Depositary with respect to the Global Notes.
(i) The
Company initially appoints the Trustee to act as Registrar and Paying Agent
and
to act as Custodian with respect to the Global Notes, and the Trustee hereby
agrees so to initially act.
Section
2.03. Paying
Agent to Hold Money in Trust.
The
Company shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent shall hold in trust for the benefit of Holders
or
the Trustee all money held by the Paying Agent for the payment of principal,
premium, if any, or interest on the Notes, and shall notify the Trustee of
any
default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all funds held by
it
relating to the Notes to the Trustee. The Company at any time may require
a
Paying Agent to pay all funds held by it to the Trustee. Upon payment over
to
the Trustee, the Paying Agent (if other than the Company or a Subsidiary)
shall
have no further liability for such funds. If the Company or a Subsidiary
acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all funds held by it as Paying Agent. Upon any Event
of
Default under Sections 6.01(i) and (j) hereof relating to the Company, the
Trustee shall serve as Paying Agent for the Notes.
Section
2.04. Holder
Lists.
The
Trustee shall preserve in as current a form as is reasonably practicable
the
most recent list available to it of the names and addresses of all Holders
and
shall otherwise comply with TIA §312(a). If the Trustee is not the Registrar,
the Company shall furnish or cause to be furnished to the Trustee at least
seven
Business Days before each Interest Payment Date and at such other times as
the
Trustee may request in writing, a list in such form and as of such date or
such
shorter time as the Trustee may allow, as the Trustee may reasonably require
of
the names and addresses of the Holders and the Company shall otherwise comply
with TIA §312(a).
Section
2.05. Transfer
and Exchange.
(a) Transfer
and Exchange of Global Notes.
A
Global Note may not be transferred as a whole except by the Depositary to
a
nominee of the Depositary, by a nominee of the Depositary to the Depositary
or
to another nominee of the Depositary, or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary. Upon
the
occurrence of any of the events set forth in Section 2.01(e) above, Definitive
Notes shall be issued in denominations of $1,000 or integral multiples thereof
and in such names as the Depositary shall instruct the Trustee in writing.
Global Notes also may be exchanged or replaced, in whole or in part, as provided
in Sections 2.07 and 2.10 hereof. Except as provided above, every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note
or any
portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Note. A Global Note may not be exchanged for another Note other than as provided
in this Section 2.06(a), and beneficial interests in a Global Note may not
be
transferred and exchanged other than as provided in Section 2.06(b), (c)
or (f)
hereof.
22
(b) Transfer
and
Exchange of Beneficial Interests in the Global Notes.
The
transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers
of
beneficial interests in Global Notes also shall require compliance with either
clause (i) or (ii) below, as applicable, as well as one or more of the other
following clauses, as applicable:
(i) Transfer
of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons
who take delivery thereof in the form of a beneficial interest in the same
Restricted Global Note in accordance with the transfer restrictions set forth
in
the Private Placement Legend and any Applicable Procedures. Beneficial interests
in any Unrestricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note.
Except as may be required by any Applicable Procedures, no written orders
or
instructions shall be required to be delivered to the Registrar to effect
the
transfers described in this Section 2.06(b)(i).
(ii) All
Other Transfers and Exchanges of Beneficial Interests in Global
Notes.
In
connection with all transfers and exchanges of beneficial interests that
are not
subject to Section 2.06(b)(i) above, the transferor of such beneficial interest
must deliver to the Registrar either (A)(1) a written order from a
Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to credit or cause
to be
credited a beneficial interest in another Global Note in an amount equal
to the
beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or
(B)(1) if permitted under Section 2.06(a), a written order from a
Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to cause to be issued
a
Definitive Note in an amount equal to the beneficial interest to be transferred
or exchanged and (2) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such Definitive
Note
shall be registered to effect the transfer or exchange referred to in (B)(1)
above. Upon consummation of an Exchange Offer by the Company in accordance
with
Section 2.06(f) hereof, the requirements of this Section 2.06(b)(ii) shall
be
deemed to have been satisfied upon receipt by the Registrar of the instructions
contained in the Letter of Transmittal delivered by the Holder of such
beneficial interests in the Restricted Global Notes. Upon satisfaction of
all of
the requirements for transfer or exchange of beneficial interests in Global
Notes contained in this Indenture and the Notes or otherwise applicable under
the Securities Act, the Trustee shall adjust the principal amount of the
relevant Global Note(s) pursuant to Section 2.06(h) hereof.
(iii) Transfer
of Beneficial Interests in a Restricted Global Note to Another Restricted
Global
Note.
A
holder of a beneficial interest in a Restricted Global Note may transfer
such
beneficial interest to a Person who takes delivery thereof in the form of
a
beneficial interest in another Restricted Global Note if the transfer complies
with the requirements of Section 2.06(b)(ii) above and the Registrar receives
the following:
(A) if
the
transferee will take delivery in the form of a beneficial interest in the
144A
Global Note, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1) thereof or, if
permitted by the Applicable Procedures, item (3) thereof;
(B) if
the
transferee will take delivery in the form of a beneficial interest in the
Regulation S Global Note, then the transferor must deliver a certificate
in the
form of Exhibit B hereto, including the certifications in item (2) thereof;
and
23
(C)
if
the transferee is required by the Applicable Procedures to take delivery
in the
form of a beneficial interest in the IAI Global Note, then the transferor
must
deliver a certificate in the form of Exhibit B hereto, including the
certifications and certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(iv) Transfer
or Exchange of Beneficial Interests in a Restricted Global Note for Beneficial
Interests in an Unrestricted Global Note.
A
holder of a beneficial interest in a Restricted Global Note may exchange
such
beneficial interest for a beneficial interest in an Unrestricted Global Note
or
may transfer such beneficial interest to a Person who takes delivery thereof
in
the form of a beneficial interest in an Unrestricted Global Note only if
the
exchange or transfer complies with the requirements of Section 2.06(b)(ii)
above
and:
(A) such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with a Registration Rights Agreement and the holder of the beneficial interest,
in the case of an exchange, or the transferee, in the case of a transfer,
makes
any and all certifications required in the applicable Letter of Transmittal
(or
is deemed to have made such certifications if delivery is made through the
Applicable Procedures) as may be required by such Registration Rights
Agreement;
(B) such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with a Registration Rights Agreement;
(C) such
transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement;
or
(D) the
Registrar receives the following:
(1) if
the
holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial interest in an Unrestricted
Global Note, a certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(a) thereof; or
(2) if
the
holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in
the form of a beneficial interest in an Unrestricted Global Note, a certificate
from such holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and,
in
each such case set forth in this clause (D), if the Registrar so requests
or if
the Applicable Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or transfer
complies with the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in order
to
maintain compliance with the Securities Act.
If
any
such transfer is effected pursuant to clause (B) or (D) above at a time when
an
Unrestricted Global Note has not yet been issued, the Company shall execute
and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate one
24
or
more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
clause (B) or (D) above.
(v) Transfer
or Exchange of Beneficial Interests in an Unrestricted Global Note for
Beneficial Interests in a Restricted Global Note Prohibited.
Beneficial interests in an Unrestricted Global Note may not be exchanged
for, or
transferred to Persons who take delivery thereof in the form of, beneficial
interests in a Restricted Global Note.
(c) Transfer
and Exchange of Beneficial Interests in Global Notes for Definitive
Notes.
(i) Transfer
or Exchange of Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes.
Subject
to Section 2.06(a) hereof, if any holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for
a
Restricted Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of the following documentation:
(A) if
the
holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if
such
beneficial interest is being transferred to a QIB in accordance with Rule
144A,
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if
such
beneficial interest is being transferred to a “non-U.S. Person” in an offshore
transaction (as defined in Section 902(k) of Regulation S) in accordance
with
Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B
hereto,
including the certifications in item (2) thereof;
(D) if
such
beneficial interest is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth in Exhibit
B
hereto, including the certifications in item (3)(a) thereof;
(E) if
such
beneficial interest is being transferred to an Institutional Accredited Investor
in reliance on an exemption from the registration requirements of the Securities
Act other than those listed in clauses (B) through (D) above, a certificate
to
the effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)(d) thereof, if
applicable; or
(F) if
such
beneficial interest is being transferred to the Company or any of its
Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof,
the
Trustee shall reduce or cause to be reduced in a corresponding amount pursuant
to Section 2.06(h) hereof, the aggregate principal amount of the applicable
Restricted Global Note, and the Company shall execute and, upon receipt of
an
Authentication Order in accordance with Section 2.02 hereof, the Trustee
shall
authenticate and deliver a Restricted Definitive Note in the appropriate
principal amount to the Person designated by the holder of such beneficial
interest in the instructions delivered to the Registrar by the Depositary
and
the applicable Participant or
25
Indirect
Participant on behalf of such holder. Any Restricted Definitive Note issued
in
exchange for beneficial interests in a Restricted Global Note pursuant to
this
Section 2.06(c)(i) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall designate in such instructions. The Trustee shall deliver
such
Restricted Definitive Notes to the Persons in whose names such Notes are
so
registered. Any Restricted Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c)(i)
shall
bear the Private Placement Legend and shall be subject to all restrictions
on
transfer contained therein.
(ii) Transfer
or Exchange of Beneficial Interests in Restricted Global Notes to Unrestricted
Definitive Notes.
Subject
to Section 2.06(a) hereof, a holder of a beneficial interest in a Restricted
Global Note may exchange such beneficial interest for an Unrestricted Definitive
Note or may transfer such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note only if:
(A) such
exchange or transfer is effected pursuant to an Exchange Offer in accordance
with a Registration Rights Agreement and the holder of such beneficial interest,
in the case of an exchange, or the transferee, in the case of a transfer,
makes
any and all certifications in the applicable Letter of Transmittal (or is
deemed
to have made such certifications if delivery is made through the Applicable
Procedures) as may be required by such Registration Rights Agreement;
(B) such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with a Registration Rights Agreement;
(C) such
transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement;
or
(D) the
Registrar receives the following:
(1) if
the
holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for an Unrestricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(2) if
the
holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in
the form of an Unrestricted Definitive Note, a certificate from such holder
in
the form of Exhibit B hereto, including the certifications in item (4)
thereof;
and,
in
each such case set forth in this clause (D), if the Registrar so requests
or if
the Applicable Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or transfer
complies with the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in order
to
maintain compliance with the Securities Act.
Upon
satisfaction of any of the conditions of any of the clauses of this Section
2.06(c)(ii), the Company shall execute and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee shall authenticate
and
deliver an Unrestricted Definitive Note in the appropriate principal amount
to
the Person designated by the holder of such beneficial interest in instructions
delivered
26
to
the
Registrar by the Depositary and the applicable Participant or Indirect
Participant on behalf of such holder, and the Trustee shall reduce or cause
to
be reduced in a corresponding amount pursuant to Section 2.06(h), the aggregate
principal amount of the applicable Restricted Global Note.
(iii) Transfer
or Exchange of Beneficial Interests in Unrestricted Global Notes to Unrestricted
Definitive Notes.
Subject
to Section 2.06(a) hereof, if any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for
an
Unrestricted Definitive Note or to transfer such beneficial interest to a
Person
who takes delivery thereof in the form of an Unrestricted Definitive Note,
then,
upon satisfaction of the applicable conditions set forth in Section 2.06(b)(ii)
hereof, the Trustee shall reduce or cause to be reduced in a corresponding
amount pursuant to Section 2.06(h) hereof, the aggregate principal amount
of the
applicable Unrestricted Global Note, and the Company shall execute, and,
upon
receipt of an Authentication Order in accordance with Section 2.02 hereof,
the
Trustee shall authenticate and deliver an Unrestricted Definitive Note in
the
appropriate principal amount to the Person designated by the holder of such
beneficial interest in instructions delivered to the Registrar by the Depositary
and the applicable Participant or Indirect Participant on behalf of such
holder.
Any Unrestricted Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.06(c)(iii) shall be registered in such name or
names
and in such authorized denomination or denominations as the holder of such
beneficial interest shall designate in such instructions. The Trustee shall
deliver such Unrestricted Definitive Notes to the Persons in whose names
such
Notes are so registered. Any Unrestricted Definitive Note issued in exchange
for
a beneficial interest pursuant to this Section 2.06(c)(iii) shall not bear
the
Private Placement Legend.
(d) Transfer
and Exchange of Definitive Notes for Beneficial Interests in the Global
Notes.
(i) Transfer
or Exchange of Restricted Definitive Notes to Beneficial Interests in Restricted
Global Notes.
If any
Holder of a Restricted Definitive Note proposes to exchange such Restricted
Definitive Note for a beneficial interest in a Restricted Global Note or
to
transfer such Restricted Definitive Notes to a Person who takes delivery
thereof
in the form of a beneficial interest in a Restricted Global Note, then, upon
receipt by the Registrar of the following documentation:
(A) if
the
holder of such Restricted Definitive Note proposes to exchange such Restricted
Definitive Note for a beneficial interest in a Restricted Global Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;
(B) if
such
Restricted Definitive Note is being transferred to a QIB in accordance with
Rule
144A, a certificate to the effect set forth in Exhibit B hereto, including
the
certifications in item (1) thereof;
(C) if
such
Restricted Definitive Note is being transferred to a “non-U.S. Person” in an
offshore transaction (as defined in Rule 902(k) of Regulation S) in accordance
with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit
B
hereto, including the certifications in item (2) thereof;
(D) if
such
Restricted Definitive Note is being transferred pursuant to an exemption
from
the registration requirements of the Securities Act in accordance with Rule
144,
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
27
(E)
if
such Restricted Definitive Note is being transferred to an Institutional
Accredited Investor in reliance on an exemption from the registration
requirements of the Securities Act other than those listed in clauses (B)
through (D) above, a certificate to the effect set forth in Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel required
by
item (3)(d) thereof, if applicable; or
(F) if
such
Restricted Definitive Note is being transferred to the Company or any of
its
Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof,
the
Trustee shall cancel the Restricted Definitive Note, increase or cause to
be
increased in a corresponding amount pursuant to Section 2.06(h) hereof, the
aggregate principal amount of, in the case of clause (A) above, the appropriate
Restricted Global Note, in the case of clause (B) above, a 144A Global Note,
in
the case of clause (C) above, a Regulation S Global Note, and in all other
cases, a IAI Global Note.
(ii) Transfer
or Exchange of Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes.
A
holder of a Restricted Definitive Note may exchange such Restricted Definitive
Note for a beneficial interest in an Unrestricted Global Note or transfer
such
Restricted Definitive Note to a Person who takes delivery thereof in the
form of
a beneficial interest in an Unrestricted Global Note only if:
(A) such
exchange or transfer is effected pursuant to an Exchange Offer in accordance
with a Registration Rights Agreement and the holder of such beneficial interest,
in the case of an exchange, or the transferee, in the case of a transfer,
makes
any and all certifications in the applicable Letter of Transmittal (or is
deemed
to have made such certifications if delivery is made through the Applicable
Procedures) as may be required by such Registration Rights Agreement;
(B) such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with a Registration Rights Agreement;
(C) such
transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement;
or
(D) the
Registrar receives the following:
(1) if
the
holder of such Restricted Definitive Note proposes to exchange such Restricted
Definitive Note for a beneficial interest in an Unrestricted Global Note,
a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(2) if
the
holder of such Restricted Definitive Note proposes to transfer such Restricted
Definitive Note to a Person who shall take delivery thereof in the form of
a
beneficial interest in an Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit B hereto, including the certifications in item
(4)
thereof;
28
(3) and,
in each
such case set forth in this clause (D), if the Registrar so requests or if
the
Applicable Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or transfer
shall
be effected in compliance with the Securities Act and that the restrictions
on
transfer contained herein and in the Private Placement Legend shall no longer
be
required in order to maintain compliance with the Securities Act.
Upon
satisfaction of the conditions of any of the clauses in this Section
2.06(d)(ii), the Trustee shall cancel such Restricted Definitive Note and
increase or cause to be increased in a corresponding amount pursuant to Section
2.06(h) hereof, the aggregate principal amount of the Unrestricted Global
Note.
(iii) Transfer
or Exchange of Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes.
A
holder of an Unrestricted Definitive Note may exchange such Unrestricted
Definitive Note for a beneficial interest in an Unrestricted Global Note
or
transfer such Unrestricted Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note
at
any time. Upon receipt of a request for such an exchange or transfer, the
Trustee shall cancel the applicable Unrestricted Definitive Note and increase
or
cause to be increased in a corresponding amount pursuant to Section 2.06(h)
hereof the aggregate principal amount of one of the Unrestricted Global
Notes.
(iv) Transfer
or Exchange of Unrestricted Definitive Notes to Beneficial Interests in
Restricted Global Notes Prohibited.
An
Unrestricted Definitive Note may not be exchanged for, or transferred to
Persons
who take delivery thereof in the form of, beneficial interests in a Restricted
Global Note.
(v) Issuance
of Unrestricted Global Notes.
If any
such exchange or transfer of a Definitive Note for a beneficial interest
in an
Unrestricted Global Note is effected pursuant to clause (ii)(B), (ii)(D)
or
(iii) at a time when an Unrestricted Global Note has not yet been issued,
the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.
(e) Transfer
and Exchange of Definitive Notes for Definitive Notes.
Upon
request by a holder of Definitive Notes and such holder’s compliance with the
provisions of this Section 2.06(e), the Registrar shall register the transfer
or
exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar
the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such holder.
In
addition, the requesting holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following
provisions of this Section 2.06(e).
(i) Transfer
of Restricted Definitive Notes to Restricted Definitive Notes.
Any
Restricted Definitive Note may be transferred to and registered in the name
of
Persons who take delivery thereof in the form of a Restricted Definitive
Note if
the Registrar receives the following:
(A) if
the
transfer will be made pursuant to Rule 144A, a certificate in the form of
Exhibit B hereto, including the certifications in item (1) thereof;
(B) if
the
transfer will be made pursuant to Rule 903 or Rule 904, a certificate in
the
form of Exhibit B hereto, including the certifications in item (2) thereof;
and
(C) if
the
transfer will be made pursuant to any other exemption from the registration
requirements of the Securities Act, a
29
(D)
certificate in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable.
(ii) Transfer
or Exchange of Restricted Definitive Notes to Unrestricted Definitive
Notes.
Any
Restricted Definitive Note may be exchanged by the holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note only
if:
(A) such
exchange or transfer is effected pursuant to an Exchange Offer in accordance
with a Registration Rights Agreement and the holder, in the case of an exchange,
or the transferee, in the case of a transfer, makes any and all certifications
in the applicable Letter of Transmittal (or is deemed to have made such
certifications if delivery is made through the Applicable Procedures) as
may be
required by a Registration Rights Agreement;
(B) any
such
transfer is effected pursuant to a Shelf Registration Statement in accordance
with a Registration Rights Agreement;
(C) any
such
transfer is effected by a broker-dealer pursuant to an Exchange Offer
Registration Statement in accordance with a Registration Rights Agreement;
or
(D) the
Registrar receives the following:
(1) if
the
holder of such Restricted Definitive Note proposes to exchange such Restricted
Definitive Notes for an Unrestricted Definitive Note, a certificate from
such
holder in the form of Exhibit C hereto, including the certifications in item
(1)(d) thereof; or
(2) if
the
holder of such Restricted Definitive Notes proposes to transfer such Restricted
Definitive Notes to a Person who shall take delivery thereof in the form
of an
Unrestricted Definitive Note, a certificate from such holder in the form
of
Exhibit B hereto, including the certifications in item (4) thereof;
and,
in
each such case set forth in this clause (D), if the Registrar so requests,
an
Opinion of Counsel in form reasonably acceptable to the Registrar to the
effect
that such exchange or transfer complies with the Securities Act and that
the
restrictions on transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the Securities
Act.
Upon
satisfaction of the conditions of any of the clauses of this Section
2.06(e)(ii), the Trustee shall cancel the prior Restricted Definitive Note
and
the Company shall execute, and upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate and deliver
an Unrestricted Definitive Note in the appropriate aggregate principal amount
to
the Person designated by the holder of such prior Restricted Definitive Note
in
instructions delivered to the Registrar by such holder.
(iii) Transfer
of Unrestricted Definitive Notes to Unrestricted Definitive
Notes.
A
holder of Unrestricted Definitive Notes may transfer such Unrestricted
Definitive Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note. Upon receipt of
30
(iv) a
request to
register such a transfer, the Registrar shall register the Unrestricted
Definitive Notes pursuant to the instructions from the holder
thereof.
(f) Exchange
Offer.
Upon
the occurrence of an Exchange Offer in accordance with a Registration Rights
Agreement, the Company shall issue and, upon receipt of an Authentication
Order
in accordance with Section 2.02 hereof, the Trustee shall authenticate (A)
one
or more Unrestricted Global Notes in an aggregate principal amount equal
to the
aggregate principal amount of the beneficial interests in the applicable
Restricted Global Notes (1) tendered for acceptance by Persons that make
any and
all certifications in the applicable Letters of Transmittal (or are deemed
to
have made such certifications if delivery is made through the Applicable
Procedures) as may be required by such Registration Rights Agreement and
(2)
accepted for exchange in such Exchange Offer and (B) Unrestricted Definitive
Notes in an aggregate principal amount equal to the aggregate principal amount
of the Restricted Definitive Notes tendered for acceptance by Persons who
made
the foregoing certifications and accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee shall reduce or
cause
to be reduced in a corresponding amount the aggregate principal amount of
the
applicable Restricted Global Notes, and the Company shall execute and, upon
receipt of an Authentication Order in accordance with Section 2.02 hereof,
the
Trustee shall authenticate and deliver to the Persons designated by the holders
of Restricted Definitive Notes so accepted Unrestricted Definitive Notes
in the
appropriate aggregate principal amount.
(g) Legends.
The
following legends shall appear on the face of all Global Notes and Definitive
Notes issued under this Indenture unless specifically stated otherwise in
the
applicable provisions of this Indenture.
(i) Private
Placement Legend.
(A) Except
as
permitted by clause (B) below, each Global Note and each Definitive Note
(and
all Notes issued in exchange therefor or substitution thereof) shall bear
the
legend in substantially the following form:
“THIS
NOTE 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
SUCH
NOTE) (THE “RESALE RESTRICTION TERMINATION DATE”), ONLY (A) TO THE COMPANY OR
ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE
IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS
THAT
OCCUR OUTSIDE OF THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER
THE
SECURITIES ACT, (E) TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL
ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM
PRINCIPAL AMOUNT OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO OR
FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY’S
31
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) PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY
OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
TO
EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON
THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.”
(B) Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to clauses
(b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to
this
Section 2.06 (and all Notes issued in exchange therefor or substitution thereof)
shall not bear the Private Placement Legend.
(ii) Global
Note Legend.
Each
Global Note shall bear a legend in substantially the following
form:
“THIS
GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III)
THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION
2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM,
THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
NOTE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY,
A
NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME
OF
CEDE & CO. OR IN SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.”
(h) Cancellation
and/or Adjustment of Global Notes.
At such
time as all beneficial interests in a particular Global Note have been exchanged
for Definitive Notes or a particular Global Note has been redeemed, repurchased
or cancelled in whole and not in part, each such Global Note shall be returned
to or retained and cancelled by the Trustee in accordance with Section 2.11
hereof. At any time prior to such cancellation, if any beneficial interest
in a
Global Note is exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note or for
Definitive Notes, the aggregate principal amount of Notes represented by
such
Global Note shall be reduced accordingly and an endorsement shall be made
on
such Global Note by the Trustee or by the Depositary at the direction of
the
Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in
the
form of a beneficial interest in another Global Note, the aggregate principal
amount of such other Global Note shall be
32
(i) increased
accordingly and an endorsement shall be made on such Global Note by the Trustee
or by the Depositary at the direction of the Trustee to reflect such
increase.
(j) General
Provisions Relating to Transfers and Exchanges.
(i) No
service charge shall be made to a holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer
or
exchange, but the Company may require payment of a sum sufficient to cover
any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge payable
upon
exchange or transfer pursuant to Sections 2.10, 3.06, 4.12, 4.17 and 9.05
hereof).
(ii) All
Global Notes and Definitive Notes issued upon any registration of transfer
or
exchange of Global Notes or Definitive Notes shall be the valid obligations
of
the Company, evidencing the same debt as the Global Notes or Definitive Notes
surrendered upon such registration of transfer or exchange and shall be entitled
to all of the benefits of this Indenture equally and proportionately with
all
other Notes duly issued hereunder.
(iii) Neither
the Registrar nor the Company shall be required (A) to issue, to register
the
transfer of or to exchange any Notes during a period beginning at the opening
of
business 15 days before the day of any selection of Notes for redemption
under
Section 3.02 hereof and ending at the close of business on the date of
selection, (B) to register the transfer of or to exchange any Note so selected
for redemption in whole or in part, except the unredeemed portion of any
Note
being redeemed in part or (C) to register the transfer of or to exchange
a Note
between a record date (including a Regular Record Date) and the next succeeding
Interest Payment Date.
(iv) Prior
to
due presentment for the registration of transfer of any Note, the Trustee,
any
Agent and the Company may deem and treat the Person in whose name any Note
is
registered as the absolute owner of such Note for the purpose of receiving
payment of principal of, premium, if any, and interest on such Note and for
all
other purposes, in each case regardless of any notice to the
contrary.
(v) All
certifications, certificates and Opinions of Counsel required to be submitted
to
the Registrar pursuant to this Section 2.06 to effect a registration of transfer
or exchange may be submitted by facsimile.
(vi) The
Trustee is hereby authorized and directed to enter into a letter of
representation with the Depositary in the form provided by the Company and
to
act in accordance with such letter.
Section
2.06. Replacement
Notes.
If
any
mutilated Note is surrendered to the Trustee or the Company and the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of
any
Note, the Company shall issue and, upon receipt of an Authentication Order
in
accordance with Section 2.02 hereof, the Trustee shall authenticate a
replacement Note. If required by the Trustee or the Company, the Holder of
such
Note shall provide indemnity that is sufficient, in the judgment of the Trustee
or the Company, to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer in connection
with such replacement. If required by the Company, such Holder shall reimburse
the Company for its reasonable expenses in connection with such replacement.
Every
replacement Note issued in accordance with this Section 2.07 shall be the
valid
obligation of the Company, evidencing the same debt as the destroyed, lost
or
stolen Note, and shall be entitled to all of the benefits of this Indenture
equally and proportionately with all other Notes duly issued
hereunder.
33
Outstanding
Notes.
(a) The
Notes
outstanding at any time shall be the entire principal amount of Notes
represented by all of the Global Notes and Definitive Notes authenticated
by the
Trustee except for those cancelled by it, those delivered to it for
cancellation, those subject to reductions in beneficial interests effected
by
the Trustee in accordance with Section 2.06 hereof, and those described in
this
Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof,
a
Note shall not cease to be outstanding because the Company or an Affiliate
of
the Company holds the Note; provided,
however,
that
Notes held by the Company or a Subsidiary of the Company shall be deemed
not to
be outstanding for purposes of Section 3.07(c) hereof.
(b) If
a Note
is replaced pursuant to Section 2.07 hereof, it shall cease to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced note
is
held by a bona fide purchaser.
(c) If
the
principal amount of any Note is considered paid under Section 4.01 hereof,
it
shall cease to be outstanding and interest on it shall cease to
accrue.
(d) If
the
Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) holds, on a redemption date, a Purchase Date or a maturity date,
funds
sufficient to pay Notes payable on that date, then on and after that date
such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section
2.07. Treasury
Notes.
In
determining whether the Holders of the required principal amount of Notes
have
concurred in any direction, waiver or consent, Notes owned by the Company,
or by
any Affiliate of the Company, shall be considered as though not outstanding,
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Notes
that a
Responsible Officer of the Trustee knows are so owned shall be so
disregarded.
Section
2.08. Temporary
Notes.
Until
certificates representing Notes are ready for delivery, the Company may prepare
and, upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate temporary Notes. Temporary Notes shall
be
substantially in the form of Definitive Notes but may have variations that
the
Company considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall
prepare
and the Trustee shall authenticate Global Notes or Definitive Notes in exchange
for temporary Notes, as applicable. After preparation of Definitive Notes,
the
Temporary Note will be exchangeable for Definitive Notes upon surrender of
the
Temporary Notes.
Holders
of temporary Notes shall be entitled to all of the benefits of this Indenture
equally and proportionately with all other Notes duly issued
hereunder.
Section
2.09. Cancellation.
The
Company at any time may deliver Notes to the Trustee for cancellation. The
Registrar and Paying Agent shall forward to the Trustee any Notes surrendered
to
them for registration of transfer, exchange or payment. Upon sole direction
of
the Company, the Trustee and no one else shall cancel all Notes surrendered
for
registration of transfer, exchange, payment, replacement or cancellation
and
shall dispose of cancelled Notes (subject to the record retention requirements
of the Exchange Act or other applicable laws) unless by written order, signed
by
an Officer of the Company, the Company directs them to be returned to it.
Certification of the disposal of all cancelled Notes shall be delivered to
the
Company from time to time upon request. The Company may not issue new Notes
to
replace Notes that it has paid or that have been delivered to the Trustee
for
cancellation.
34
Payment
of Interest; Defaulted Interest.
If
the
Company defaults in a payment of interest on the Notes, it shall pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the
Notes
and in Section 4.01 hereof. The Company shall notify the Trustee in writing
of
the amount of defaulted interest proposed to be paid on each Note and the
date
of the proposed payment. The Company shall fix or cause to be fixed each
such
special record date and payment date; provided
that no
such special record date shall be less than 10 days prior to the related
Interest Payment Date for such defaulted interest. At least 15 days before
the
special record date, the Company (or, upon the written request of the Company,
the Trustee in the name and at the expense of the Company) shall mail or
cause
to be mailed to Holders a notice that states the special record date, the
related Interest Payment Date and the amount of such interest to be
paid.
Section
2.10. CUSIP
or ISIN Numbers.
The
Company in issuing the Notes may use “CUSIP” and/or “ISIN” numbers (if then
generally in use), and, if so, the Trustee shall use “CUSIP” and/or “ISIN”
numbers in notices of redemption or Offers to Purchase as a convenience to
Holders; provided,
however,
that any
such notice may state that no representation is made as to the correctness
of
such numbers either as printed on the Notes or as contained in any notice
of a
redemption or notice of an Offer to Purchase and that reliance may be placed
only on the other identification numbers printed on the Notes, and any such
redemption or Offer to Purchase shall not be affected by any defect in or
omission of such numbers. The Company shall promptly notify the Trustee of
any
change in the “CUSIP” and/or “ISIN” numbers.
Section
2.11. Additional
Interest.
If
Additional Interest is payable by the Company pursuant to a Registration
Rights
Agreement and paragraph 1 of the Notes, the Company shall deliver to the
Trustee
a certificate to that effect stating (i) the amount of such Additional Interest
that is payable and (ii) the date on which such interest is payable pursuant
to
Section 4.01 hereof. Unless and until a Responsible Officer of the Trustee
receives such a certificate or instruction or direction from the Holders
in
accordance with the terms of this Indenture, the Trustee may assume without
inquiry that no Additional Interest is payable. The foregoing shall not
prejudice the rights of the Holders with respect to their entitlement to
Additional Interest as otherwise set forth in this Indenture or the Notes
and
pursuing any action against the Company directly or otherwise directing the
Trustee to take any such action in accordance with the terms of this Indenture
and the Notes. If the Company has paid Additional Interest directly to the
Persons entitled to it, the Company shall deliver to the Trustee an Officers’
Certificate setting forth the details of such payment.
Section
2.12. Additional
Notes.
The
Company shall be entitled, subject to its compliance with Section 4.09 hereof,
to issue Additional Notes under this Indenture which shall have identical
terms
as the Initial Notes issued on the date hereof, other than with respect to
the
date of issuance, issue price and rights under a related Registration Rights
Agreement, if any. The Initial Notes issued on the date hereof, any Additional
Notes and all Exchange Notes issued in exchange therefor shall be treated
as a
single class for all purposes under this Indenture, including directions,
waivers, amendments, consents, redemptions and Offers to Purchase.
With
respect to any Additional Notes, the Company shall set forth in a Board
Resolution and an Officers’ Certificate, a copy of each of which shall be
delivered to the Trustee, the following information:
(a) the
aggregate principal amount of such Additional Notes to be authenticated and
delivered pursuant to this Indenture;
(b) the
issue
price, the Issue Date and the CUSIP and/or ISIN number of such Additional
Notes;
provided,
however; that
no
Additional Notes may be issued at a price that would cause such Additional
Notes
35
to
have
“original issue discount” within the meaning of Section 1273 of the Code, other
than a de
minimis
original
issue discount within the meaning of Section 1273 of the Code; and
(c) whether
such Additional Notes shall be subject to the restrictions on transfer set
forth
in Section 2.06 hereof relating to Restricted Global Notes and Restricted
Definitive Notes.
Section
2.13. Record
Date.
The
record date for purposes of determining the identity of Holders of Notes
entitled to vote or consent to any action by vote or consent or permitted
under
this Indenture shall be determined as provided for in TIA Section
316(c).
ARTICLE
3.
REDEMPTION
AND PREPAYMENT
Section
3.01. Notices
to Trustee.
If
the
Company elects to redeem Notes pursuant to the optional redemption provisions
of
Section 3.07 hereof, it shall furnish to the Trustee, at least 30 days but
not
more than 60 days before a redemption date (or such shorter period as
allowed by the Trustee), an Officers’ Certificate setting forth (a) the
applicable section of this Indenture pursuant to which the redemption shall
occur, (b) the redemption date, (c) the principal amount of Notes to be redeemed
and (d) the redemption price.
Section
3.02. Selection
of Notes to Be Redeemed.
If
less
than all of the Notes are to be redeemed at any time, the Trustee shall select
the Notes to be redeemed among the Holders of the Notes in compliance with
the
requirements of the principal national securities exchange, if any, on which
the
Notes are listed or, if the Notes are not so listed, on a pro
rata
basis,
by lot or in accordance with any other method the Trustee deems fair and
appropriate. In the event of partial redemption by lot, the particular Notes
to
be redeemed shall be selected, unless otherwise provided herein, not less
than
30 nor more than 60 days prior to the redemption date by the Trustee from
the outstanding Notes not previously called for redemption.
The
Trustee shall promptly notify the Company in writing of the Notes selected
for
redemption and, in the case of any Note selected for partial redemption,
the
principal amount thereof to be redeemed. Notes and portions of Notes selected
shall be in amounts of $1,000 or integral multiples thereof; except that
if all
of the Notes of a Holder are to be redeemed, the entire outstanding amount
of
Notes held by such Holder, even if not an integral multiple of $1,000, shall
be
redeemed. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Notes called for redemption also apply to portions
of
Notes called for redemption.
Section
3.03. Notice
of Redemption.
At
least
30 days but not more than 60 days prior to a redemption date, the
Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at such Holder’s
registered address appearing in the Security Register, except that redemption
notices may be mailed more than 60 days prior to a redemption date if the
notice
is issued in connection with a defeasance pursuant to Article 8 hereof or
a
satisfaction and discharge pursuant to Article 10 hereof.
The
notice shall identify the Notes to be redeemed and shall state:
(a) the
redemption date;
36
(b)the
appropriate method for calculation of the redemption price, but need not
include
the redemption price itself; the actual redemption price shall be set forth
in
an Officers’ Certificate delivered to the Trustee no later than two (2) Business
Days prior to the redemption date.
(c) if
any
Note is being redeemed in part, the portion of the principal amount of such
Note
to be redeemed and that, after the redemption date upon surrender of such
Note,
if applicable, a new Note or Notes in principal amount equal to the unredeemed
portion shall be issued upon cancellation of the original Note;
(d) the
name
and address of the Paying Agent;
(e) that
Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;
(f) that,
unless the Company defaults in making such redemption payment, interest on
Notes
called for redemption ceases to accrue on and after the redemption
date;
(g) the
applicable section of this Indenture pursuant to which the Notes called for
redemption are being redeemed; and
(h) that
no
representation is made as to the correctness of the CUSIP and/or ISIN numbers,
if any, listed in such notice or printed on the Notes.
At
the
Company’s request, the Trustee shall give the notice of redemption in the
Company’s name and at its expense; provided,
however,
that
the Company shall have delivered to the Trustee, at least 45 days (or such
shorter period allowed by the Trustee), prior to the redemption date, an
Officers’ Certificate requesting that the Trustee give such notice (in the name
and at the expense of the Company) and setting forth the information to be
stated in such notice as provided in this Section 3.03.
Section
3.04. Effect
of Notice of Redemption.
Once
notice of redemption is mailed in accordance with Section 3.03 hereof, Notes
called for redemption shall become irrevocably due and payable on the redemption
date at the redemption price. A notice of redemption may not be
conditional.
Section
3.05. Deposit
of Redemption Price.
On
or
prior to 11:00 a.m. Eastern time on the Business Day prior to any redemption
date, the Company shall deposit with the Trustee or with the Paying Agent
money
sufficient to pay the redemption price of and, if applicable, accrued and
unpaid
interest on all Notes to be redeemed on that date. The Trustee or the Paying
Agent shall promptly, and in any event within two (2) Business Days after
the
redemption date, return to the Company any money deposited with the Trustee
or
the Paying Agent by the Company in excess of the amounts necessary to pay
the
redemption price of, and accrued and unpaid interest, if any, on, all Notes
to
be redeemed.
If
the
Company complies with the provisions of the preceding paragraph, on and after
the redemption date, interest shall cease to accrue on the Notes or the portions
of Notes called for purchase or redemption in accordance with Section 2.08(d)
hereof, whether or note such Notes are presented for payment. If a Note is
redeemed on or after a Regular Record Date but on or prior to the related
Interest Payment Date, then any accrued and unpaid interest, if any, shall
be
paid to the Person in whose name such Note was registered at the close of
business on such Regular Record Date. If any Note called for redemption shall
not be so paid upon surrender for redemption because of the failure of the
Company to comply with the preceding paragraph, interest shall be paid on
the
unpaid principal from the redemption date until such principal is paid, and
to
the extent lawful on any interest not paid on such unpaid principal, in each
case at the rate provided in the Notes and in Section 4.01 hereof.
37
Notes
Redeemed in Part.
Upon
surrender of a Note that is redeemed in part, the Company shall issue and,
upon
receipt of an authentication order in accordance with Section 2.02 hereof,
the
Trustee shall authenticate for the Holder at the expense of the Company a
new
Note equal in principal amount to the unredeemed portion of the Note
surrendered.
Section
3.06. Optional
Redemption.
(a) Except
as
set forth in clauses (b) and (c) of this Section 3.07, the Notes shall not
be
redeemable at the option of the Company prior to April 1, 2011. Beginning
on
April 1, 2011, the Company may redeem all or a portion of the Notes, at once
or
over time, after giving the notice required pursuant to Section 3.03 hereof,
at
the redemption prices (expressed as percentages of principal amount) set
forth
below, plus accrued and unpaid interest and Additional Interest on the Notes
redeemed, to the applicable redemption date (subject to the right of Holders
of
record on the relevant Regular Record Date to receive interest due on the
relevant Interest Payment Date), if redeemed during the twelve-month period
commencing on April 1 of the years indicated below:
Year Percentage
2011 103.625%
2012 101.813%
2013
and
thereafter 100.000%
(b) At
any
time prior to April 1, 2011, the Company may redeem all or any portion of
the
Notes, at once or over time, after giving the notice required pursuant to
Section 3.03 hereof, at a redemption price equal to the greater of:
(i) 100%
of
the principal amount of the Notes to be redeemed; and
(ii) the
sum
of the present values of (1) the redemption price of the Notes at April 1,
2011
(as set forth above) and (2) the remaining scheduled payments of interest
from
the redemption date through April 1, 2011, but excluding accrued and unpaid
interest to the redemption date, discounted to the redemption date (assuming
a
360 day year consisting of twelve 30 day months) at the Treasury Yield
(determined on the second Business Day immediately preceding the redemption
date) plus 50 basis points;
plus,
in
either case, accrued and unpaid interest, to the redemption date (subject
to the
right of Holders of record on the relevant Regular Record Date to receive
interest due on the relevant Interest Payment Date).
Any
notice to the Holders of Notes of a redemption pursuant to this Section 3.07(b)
shall include the appropriate calculation of the redemption price, but need
not
include the redemption price itself. The actual redemption price, calculated
as
described above, shall be set forth in an Officers’ Certificate delivered to the
Trustee no later than two Business Days prior to the redemption
date.
(c) At
any
time and from time to time prior to April 1, 2010, the Company may on one
or
more occasions redeem up to 35% of the aggregate principal amount of the
Notes
(including Additional Notes) issued under this Indenture at a redemption
price
(expressed as a percentage of principal amount) equal to 107.250 % of the
principal amount thereof, plus accrued and unpaid interest and Additional
Interest to the redemption date (subject to the right of Holders of record
on
the relevant Regular Record Date to receive interest due on the relevant
Interest Payment Date) with the net cash proceeds of any Equity Offering
of
common stock of the Company; provided,
however,
that
(i) at least 65% of the aggregate principal amount of the Notes initially
issued
under this Indenture (excluding Notes held by the Company and its Subsidiaries)
remains outstanding immediately after giving effect to such redemption and
(ii)
any such redemption shall be made within 90 days of such Equity
Offering.
(d) Any
prepayment pursuant to this Section 3.07 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.
38
(e) Mandatory
Redemption.
Except
as
set forth in Sections 4.12 and 4.17 hereof, the Company shall not be required
to
make mandatory redemption or sinking fund payments with respect to, or offer
to
purchase, the Notes.
Section
3.07. Offer
To Purchase.
(a) In
the
event that, pursuant to Section 4.12 or 4.17 hereof, the Company shall be
required to commence an Asset Sale Offer or a Change of Control Offer (each,
an
“Offer
to Purchase”),
it
shall follow the procedures specified below.
(b) The
Company shall cause a notice of the Offer to Purchase to be sent at least
once
to the Dow
▇▇▇▇▇ News Service
or
similar business news service in the United States.
(c) The
Company shall commence the Offer to Purchase by sending, by first-class mail,
with a copy to the Trustee, to each Holder at such Holder’s address appearing in
the Security Register, a notice the terms of which shall govern the Offer
to
Purchase stating:
(i) that
the
Offer to Purchase is being made pursuant to this Section 3.09 and Section
4.12
or Section 4.17, as the case may be, and, in the case of a Change of Control
Offer, that a Change of Control has occurred, the circumstances and relevant
facts regarding the Change of Control and that a Change of Control Offer
is
being made pursuant to Section 4.17;
(ii) the
principal amount of Notes required to be purchased pursuant to Section 4.12
or
Section 4.17, as the case may be (the “Offer
Amount”),
the
purchase price set forth in Section 4.12 or Section 4.17, as applicable (the
“Purchase
Price”),
the
Offer Period and the Purchase Date (each as defined below);
(iii) except
as
provided in clause (ix), that all Notes timely tendered and not withdrawn
shall
be accepted for payment;
(iv) that
any
Note not tendered or accepted for payment shall continue to accrue
interest;
(v) that,
unless the Company defaults in making such payment, any Note accepted for
payment pursuant to the Offer to Purchase shall cease to accrue interest
after
the Purchase Date;
(vi) that
Holders electing to have a Note purchased pursuant to an Offer to Purchase
may
elect to have Notes purchased in integral multiples of $1,000 only;
(vii) that
Holders electing to have a Note purchased pursuant to any Offer to Purchase
shall be required to surrender the Note, with the form entitled “Option of
Holder to Elect Purchase” on the reverse of the Note completed, or transfer by
book-entry transfer, to the Company, the Depositary, if appointed by the
Company, or a Paying Agent at the address specified in the notice before
the
close of business on the third Business Day before the Purchase
Date;
(viii) that
Holders shall be entitled to withdraw their election if the Company, the
Depositary or the Paying Agent, as the case may be, receives, not later than
the
expiration of the Offer Period, a telegram, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Note (or
portions thereof) the Holder delivered for purchase and a statement that
such
Holder is withdrawing his election to have such Note purchased;
39
(ix)
that, in the case of an Asset Sale Offer, if the aggregate principal amount
of
Notes surrendered by Holders exceeds the Offer Amount, the Company shall
select
the Notes to be purchased on a pro
rata
basis
(with such adjustments as may be deemed appropriate by the Company so that
only
Notes in denominations of $1,000 or integral multiples thereof shall be
purchased);
(x) that
Holders whose Notes were purchased in part shall be issued new Notes equal
in
principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer); and
(xi) any
other
procedures the Holders must follow in order to tender their Notes (or portions
thereof) for payment and the procedures that Holders must follow in order
to
withdraw an election to tender Notes (or portions thereof) for
payment.
(d) The
Offer
to Purchase shall remain open for a period of at least 30 days but no more
than
60 days following its commencement, except to the extent that a longer period
is
required by applicable law (the “Offer
Period”).
No
later than five (5) Business Days (and in any event no later than the 60th
day
following the Change of Control) after the termination of the Offer Period
(the
“Purchase
Date”),
the
Company shall purchase the Offer Amount or, if less than the Offer Amount
has
been tendered, all Notes tendered in response to the Offer to Purchase. Payment
for any Notes so purchased shall be made in the same manner as interest payments
are made. The Company shall publicly announce the results of the Offer to
Purchase on the Purchase Date.
(e) On
or
prior to the Purchase Date, the Company shall, to the extent
lawful:
(i) accept
for payment (on a pro
rata
basis to
the extent necessary in connection with an Asset Sale Offer), the Offer Amount
of Notes or portions of Notes properly tendered and not withdrawn pursuant
to
the Offer to Purchase, or if less than the Offer Amount has been tendered,
all
Notes tendered;
(ii) deposit
with the Paying Agent funds in an amount equal to the Purchase Price in respect
of all Notes or portions of Notes properly tendered; and
(iii) deliver
or cause to be delivered to the Trustee the Notes properly accepted together
with an Officers’ Certificate stating the aggregate principal amount of Notes or
portions of Notes being purchased by the Company and that such Notes or portions
thereof were accepted for payment by the Company in accordance with the terms
of
this Section 3.09.
(f) The
Paying Agent (or the Company, if acting as the Paying Agent) shall promptly
(but
in the case of a Change of Control, not later than 60 days from the date
of the
Change of Control) deliver to each tendering Holder the Purchase Price. In
the
event that any portion of the Notes surrendered is not purchased by the Company,
the Company shall promptly execute and issue a new Note in a principal amount
equal to such unpurchased portion of the Note surrendered, and, upon receipt
of
an Authentication Order in accordance with Section 2.02 hereof, the Trustee
shall authenticate and deliver (or cause to be transferred by book-entry)
such
new Note to such Holder, in a principal amount equal to any unpurchased portion
of the Note surrendered; provided,
however,
that
each such new Note shall be in a principal amount of $1,000 or an integral
multiple thereof. Any Note not so accepted shall be promptly mailed or delivered
by the Company to the Holder thereof.
(g) If
the
Purchase Date is on or after a Regular Record Date and on or before the related
Interest Payment Date, any accrued and unpaid interest shall be paid to the
Person in whose name a Note is registered at the close of business on such
Regular Record Date, and no additional interest shall be payable to Holders
who
tender Notes pursuant to the Offer to Purchase.
(h) The
Company shall comply, to the extent applicable, with the requirements of
Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent those laws and regulations are applicable in connection
with the Offer to Purchase. To the extent that the provisions of
any
40
(i) securities
laws
or regulations conflict with Sections 4.12 or 4.17, as applicable, this Section
3.09 or other provisions of this Indenture, the Company shall comply with
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under Sections 4.12 or 4.17, as applicable, this
Section 3.09 or such other provision by virtue of such compliance.
Other
than as specifically provided in this Section 3.09, any purchase pursuant
to
this Section 3.09 shall be made in accordance with the provisions of Section
3.01 through 3.06 hereof.
ARTICLE
4.
COVENANTS
Section
4.01. Payment
of Notes.
The
Company shall pay or cause to be paid the principal of, premium, if any,
and
interest on, the Notes on the dates and in the manner provided in this Indenture
and the Notes. Principal, premium, if any, and interest shall be considered
paid
on the date due if the Paying Agent, if other than the Company or a Subsidiary
thereof, holds as of 11:00 a.m. Eastern Time on the due date money deposited
by
the Company in immediately available funds and designated for and sufficient
to
pay all principal, premium, if any, and interest then due. Such
Paying Agent shall return to the Company promptly, and in any event, no later
than five (5) Business Days following the date of payment, any money (including
accrued interest) that exceeds such amount of principal, premium, if any,
and
interest paid on the Notes. The Company shall pay Additional Interest, if
any,
in the same manner, on the dates and in the amounts set forth in a Registration
Rights Agreement, the Notes and this Indenture. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue
on such
payment for the intervening period.
The
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal and premium, if any, from
time to
time on demand at a rate that is 1% per annum in excess of the rate then
in
effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods), from time to time on demand
at
the same rate to the extent lawful.
Interest
shall be computed on the basis of a 360-day year of twelve 30-day
months.
Section
4.02. Maintenance
of Office or Agency.
(a) The
Company shall maintain in the Borough of Manhattan, The City of New York,
an
office or agency (which may be an office or drop facility of the Trustee
or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be
presented or surrendered for registration of transfer or for exchange and
where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company shall give prompt written notice to
the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made
or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
(b) The
Company may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations. The Company
shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or
agency.
(c) The
Company hereby designates the Corporate Trust Office of the Trustee, as one
such
office, drop facility or agency of the Company in accordance with Section
2.03
hereof.
41
(d) Reports.
(e) Whether
or not required by the Commission, so long as any Notes are outstanding,
the
Company will furnish to the Holders within the time periods specified in
the
Commission’s rules and regulations:
(1) all
quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if the Company
were required to file such Forms, including a “Management’s Discussion and
Analysis of Financial Condition and Results of Operations” and, with respect to
the annual information only, a report on the annual financial statements
by the
Company’s certified independent accountants; and
(2) all
current reports that would be required to be filed with the Commission on
Form
8-K if the Company were required to file such reports.
(f) If
the
Company has designated any of its Subsidiaries as Unrestricted Subsidiaries,
then the quarterly and annual financial information required by the preceding
paragraph will include a reasonably detailed presentation, either on the
face of
the financial statements or in the footnotes thereto and in Management’s
Discussion and Analysis of Financial Condition and Results of Operations,
of the
financial condition and results of operations of the Company and its Restricted
Subsidiaries separate from the financial condition and results of operations
of
the Unrestricted Subsidiaries of the Company.
(g) In
addition, following the consummation of the Exchange Offer contemplated by
the
Registration Rights Agreement, whether or not required by the Commission,
the
Company will file a copy of all of the information and reports referred to
in
clauses (1) and (2) above with the Commission for public availability within
the
time periods specified in the Commission’s rules and regulations (unless the
Commission will not accept such a filing) and make such information available
to
securities analysts and prospective investors upon request. In addition,
the
Company has agreed that, for so long as any notes remain outstanding, they
will
furnish to the Holders and to securities analysts and prospective investors,
upon their request, the information required to be delivered pursuant to
Rule
144A(d)(4) under the Securities Act.
(h) Each
report required to be delivered pursuant to this Indenture shall be deemed
to
have been delivered on the date on which the Company posts such document
on its
website at ▇▇▇.▇▇▇▇▇▇▇.▇▇▇, or when such document is posted on the Commission’s
website at ▇▇▇.▇▇▇.▇▇▇; provided
that the
Company shall deliver paper copies of all such documents to the Trustee or
any
Holder that requests the Company to deliver such paper copies until a request
to
cease delivering paper copies is given by the Trustee or such
Holder.
(i) Delivery
of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable
from
information contained therein, including the Company's compliance with any
of
its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officers' Certificates).
Section
4.03. Compliance
Certificate.
(a) The
Company shall deliver to the Trustee, within 90 days after the end of each
fiscal year, commencing with the fiscal year ended December 31, 2007, an
Officers’ Certificate stating that a review of the activities of the Company and
its Subsidiaries during the preceding fiscal year, has been made under the
supervision of the signing Officers with a view to determining whether the
Company and its Subsidiaries have kept, observed, performed and fulfilled
their
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
and its Subsidiaries have kept, observed, performed and fulfilled each and
every
covenant contained in this Indenture and is not in default in the performance
or
observance of any of the terms, provisions and conditions of this Indenture
(or,
if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and
that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal
42
(b)
of,
premium, if any, or interest on the Notes is prohibited or if such event
has
occurred, a description of the event and what action the Company is taking
or
proposes to take with respect thereto.
(c) The
Company shall otherwise comply with TIA §314(a)(2).
(d) The
Company shall deliver to the Trustee, within 30 days after the occurrence
thereof, written notice in the form of an Officers’ Certificate of any event
that with the giving of notice and/or the lapse of time would become an Event
of
Default, its status and what action the Company is taking or proposes to
take
with respect thereto.
Section
4.04. Taxes.
The
Company shall pay, and shall cause each of its Subsidiaries to pay, prior
to
delinquency, all material taxes, assessments and governmental levies, except
such as are being contested in good faith and by appropriate proceedings
or
where the failure to effect such payment is not adverse in any material respect
to the Holders.
Section
4.05. Stay,
Extension and Usury Laws.
The
Company covenants (to the extent that it may lawfully do so) that it shall
not
at any time insist upon, plead, or in any manner whatsoever claim or take
the
benefit or advantage of, any stay, extension or usury law wherever enacted,
now
or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder,
delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law
has
been enacted.
Section
4.06. Corporate
Existence.
Subject
to Article 5 hereof, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each Restricted
Subsidiary, in accordance with the respective organizational documents (as
the
same may be amended from time to time) of the Company or any such Restricted
Subsidiary and (ii) the rights (charter and statutory), licenses and franchises
of the Company and its Restricted Subsidiaries; provided,
however,
that
the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any Restricted
Subsidiary, if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company
and
its Restricted Subsidiaries, taken as a whole, and that the loss thereof
is not
adverse in any material respect to the Holders of the Notes, or that such
preservation is not necessary in connection with any transaction not prohibited
by this Indenture.
Section
4.07. Payments
for Consent.
The
Company shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, pay or cause to be paid any consideration, whether by way
of
interest, fee or otherwise, to or for the benefit of 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
and 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.
Section
4.08. Incurrence
of Additional Debt and Issuance of Preferred Stock.
(a) The
Company will not, and will not permit any of its Restricted Subsidiaries
to,
directly or indirectly, create, incur, issue, assume, Guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect
to
(collectively, “incur”) any Indebtedness (including Acquired Debt), and the
Company will not issue any Disqualified Stock and will not permit any of
its
Restricted Subsidiaries to issue any shares of
43
(b) preferred
stock
(including Disqualified Stock) other than to the Company; provided,
however,
that
the Company may incur Indebtedness (including Acquired Debt) or issue
Disqualified Stock and any Guarantor may incur Indebtedness (including Acquired
Debt), if the Fixed Charge Coverage Ratio for the Company’s most recently ended
four full fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is incurred
or such Disqualified Stock is issued would have been at least 2.0 to 1.0,
determined on a pro forma basis (including a pro forma application of the
net
proceeds therefrom), as if the additional Indebtedness had been incurred
or the
preferred stock or Disqualified Stock had been issued, as the case may be,
at
the beginning of such four-quarter period.
(c) So
long
as no Default shall have occurred or be continuing or would be caused thereby,
the first paragraph of this covenant will not prohibit the incurrence of
any of
the following items of Indebtedness (collectively, “Permitted
Debt”):
(1) the
incurrence by the Company of additional Indebtedness and letters of credit
under
one or more Credit Facilities; provided
that the
aggregate principal amount of all Indebtedness and letters of credit of the
Company and the Restricted Subsidiaries incurred pursuant to this clause
(1)
(with letters of credit being deemed to have a principal amount equal to
the
maximum potential liability of the Company and its Restricted Subsidiaries
thereunder) does not exceed the greater of (x) $300.0 million and (y) 15%
of
Consolidated Total Assets;
(2) the
incurrence by the Company and any of the Restricted Subsidiaries of the Existing
Indebtedness after giving effect to the use of proceeds of the
Notes;
(3) the
incurrence by the Company and any of its Restricted Subsidiaries of Indebtedness
represented by the Initial Notes (and the related Exchange Notes to be issued
pursuant to the Registration Rights Agreement and in exchange for any Additional
Notes);
(4) the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase
money
obligations, in each case incurred for the purpose of financing all or any
part
of the purchase price or cost of construction or improvement of property,
plant
or equipment used in the business of the Company or such Restricted Subsidiary,
in an aggregate principal amount, including all Permitted Refinancing
Indebtedness incurred to refund, refinance or replace any Indebtedness incurred
pursuant to this clause (4), not to exceed $30.0 million at any time
outstanding;
(5) the
incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are
used
to extend, defease, renew, refund, refinance or replace Indebtedness (other
than
intercompany Indebtedness) that was incurred under Section 4.09(a) or clauses
(2), (3), (4), or this clause (5) of this Section 4.09(b);
(6) the
incurrence by the Company or any of its Restricted Subsidiaries of intercompany
Indebtedness between or among the Company and any of its Restricted
Subsidiaries; provided,
however,
that
(i) any subsequent issuance or transfer of Equity Interests that results
in any
such Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary and (ii) any subsequent sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Restricted
Subsidiary shall be deemed, in each case, to constitute an incurrence of
such
Indebtedness by the Company or such Restricted Subsidiary, as the case may
be,
that was not permitted by this clause (6);
(7) the
incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries
consisting of guarantees, indemnities, holdbacks or obligations in respect
of
purchase price adjustments in connection with the acquisition or disposition
of
assets, including without limitation, shares of Capital Stock of Restricted
Subsidiaries or contingent payment obligations incurred in connection with
the
acquisition of assets which are contingent on the performance of the assets
acquired, other than guarantees of Indebtedness incurred by any Person acquiring
all or any portion of such assets or shares of Capital Stock of such Restricted
Subsidiary for the purpose of financing such acquisition;
44
(8) the
incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries
represented by (a) letters of credit for the account of the Company or any
of
its Restricted Subsidiaries or (b) other obligations to reimburse third parties
pursuant to any surety bond, performance bond or other similar arrangements,
which letters of credit or other obligations, as the case may be, are intended
to provide security for provider claims, workers’ compensation claims, payment
obligations in connection with sales tax and insurance or other similar
requirements in the ordinary course of business;
(9) the
incurrence by the Company or any of its Restricted Subsidiaries of Hedging
Obligations; provided
that
such
Hedging Obligations are related to business transactions of the Company or
its
Restricted Subsidiaries entered into in the ordinary course of business and
are
entered into for bona fide hedging purposes (and not financing or speculative
purposes) of the Company or its Restricted Subsidiaries (as determined in
good
faith by the Board of Directors or senior management of the
Company);
(11) Indebtedness
incurred by a Foreign Restricted Subsidiary which, when aggregated with the
principal amount of all other Indebtedness incurred pursuant to this clause
(11)
and then outstanding, does not exceed the greater of (x) $25.0 million or
(y)
15% of the Company’s Consolidated Total Foreign Assets; provided
that at
the time of the incurrence of any such Indebtedness, the Company’s Fixed Charge
Coverage Ratio for the most recent four full fiscal quarters for which financial
statements are available immediately preceding the incurrence of such
Indebtedness taken as one period is at least equal to or greater than 2.0
to
1.0; and
(12) the
incurrence by the Company or any of its Restricted Subsidiaries of additional
Indebtedness in an aggregate principal amount (or accreted value, as applicable)
at any time outstanding, including all Permitted Refinancing Indebtedness
incurred to refund, refinance or replace any Indebtedness incurred pursuant
to
this clause (12), not to exceed $30.0 million.
(d) For
purposes of determining compliance with this Section 4.09, in the event that
an
item of Indebtedness meets the criteria of more than one of the categories
of
Permitted Debt described in clauses (1) through (12) of Section 4.09(b) or
is
entitled to be incurred pursuant to Section 4.09(a), in each case, as of
the
date of incurrence thereof, the Company shall, in its sole discretion, classify
(or later reclassify in whole or in part, in its sole discretion) such item
of
Indebtedness in any manner that complies with this Section 4.09 and
such
Indebtedness will be treated as having been incurred pursuant to such clauses
or
Section 4.09 (a) hereof, as the case may be, designated by the
Company.
Indebtedness under Credit Facilities outstanding on the date on which the
Notes
are first issued and authenticated under this Indenture will at all times
be
deemed to have been incurred on such date in reliance of the exception provided
by clause (1) of the definition of Permitted Debt. Accrual of interest or
dividends, the accretion of accreted value or liquidation preference and
the
payment of interest or dividends in the form of additional Indebtedness or
Disqualified Stock will not be deemed to be an incurrence of Indebtedness
or an
issuance of Disqualified Stock for purposes of this Section 4.09.
(e) The
Company will not, and will not permit any of its Restricted Subsidiaries
to,
directly or indirectly, incur any Indebtedness which by its terms (or by
the
terms of any agreement governing such Indebtedness) is subordinated to any
other
Indebtedness of the Company or such Restricted Subsidiary, as the case may
be,
unless made expressly subordinate to the Notes to the same extent and in
the
same manner as such Indebtedness is subordinated pursuant to subordination
provisions that are most favorable to the Holders of any other Indebtedness
of
the Company or such Restricted Subsidiary, as the case may be.
Section
4.09. Restricted
Payments.
(a) The
Company will not, and will not permit any of its Restricted Subsidiaries
to,
directly or indirectly:
45
(b) (1) declare
or pay any dividend or make any other payment or distribution (A) on account
of
the Company’s or any of its Restricted Subsidiaries’ Equity Interests
(including, without limitation, any payment in connection with any merger
or
consolidation involving the Company or any of its Restricted Subsidiaries)
or
(B) to the direct or indirect holders of the Company’s or any Restricted
Subsidiaries’ Equity Interests in their capacity as such (other than dividends,
payments or distributions (i) payable in Equity Interests (other than
Disqualified Stock) of the Company or (ii) to the Company or a wholly owned
Restricted Subsidiary or to all holders of Capital Stock of such Restricted
Subsidiary on a pro rata basis);
(2) purchase,
redeem or otherwise acquire or retire for value (including, without limitation,
in connection with any merger or consolidation involving the Company) any
Equity
Interests of the Company or any of its Restricted Subsidiaries (other than
from
such Equity Interests owned by the Company or any of its Restricted
Subsidiaries);
(3) make
any
payment on or with respect to, or purchase, redeem, defease or otherwise
acquire
or retire for value any Subordinated Obligations, except a payment of interest
or principal at the Stated Maturity thereof; or
(4) make
any
Restricted Investment (all such payments and other actions set forth in these
clauses (1) through (4) above being collectively referred to as “Restricted
Payments”),
unless,
at the time of and after giving effect to such Restricted Payment:
(a) no
Default or Event of Default has occurred and is continuing or would occur
as a
consequence thereof; and
(b) the
Company would, at the time of such Restricted Payment and after giving pro
forma
effect thereto as if such Restricted Payment had been made at the beginning
of
the most recently ended four-quarter period, have been permitted to incur
at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in Section 4.09(a); and
(c) such
Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and the Restricted Subsidiaries after the Issue
Date (excluding Restricted Payments permitted by clauses (b)(2), (3), (5)
and
(6)), is less than the sum, without duplication, of:
(I) 50%
of
the Consolidated Net Income of the Company for the period (taken as one
accounting period) from the beginning of the first full fiscal quarter during
which the Issue Date falls to the end of the Company’s most recently ended
fiscal quarter for which internal financial statements are available at the
time
of such Restricted Payment (or, if such Consolidated Net Income for such
period
is a deficit, less 100% of such deficit), plus
(II) 100%
of
the aggregate net cash proceeds (or the Fair Market Value of property other
than
cash) received by the Company since the Issue Date as a contribution to its
common equity capital or from the issue or sale of Equity Interests of the
Company (other than Disqualified Stock) or from the issue or sale of convertible
or exchangeable Disqualified Stock or convertible or exchangeable debt
securities of the Company, in either case, that have been converted into
or
exchanged for such Equity Interests of the Company (other than Equity Interests
or Disqualified Stock or debt securities sold to a Subsidiary of the Company),
plus
(III) to
the
extent that any Restricted Investment that was made after the Issue Date
is sold
for cash or otherwise liquidated or repaid for cash, the lesser of (i) the
cash
proceeds with respect to such Restricted Investment (less the cost of
disposition, if any) and (ii) the initial amount of such Restricted Investment,
plus
(IV) in
case,
after the date hereof, any Unrestricted Subsidiary has been redesignated
as a
Restricted Subsidiary under the terms of this Indenture or has been merged,
consolidated or
46
amalgamated
with or into, or transfers or conveys assets to, or is liquidated into
the
Company
or a
Restricted Subsidiary, an amount equal to the lesser of (1) the net book
value
at the date of
the
redesignation, combination or transfer of the aggregate Investments made
by
the
Company
and the
Restricted Subsidiaries in the Unrestricted Subsidiary (or of the assets
transferred or conveyed, as applicable), and (2) the Fair Market Value of
the
Investments owned by the
Company
and the
Restricted Subsidiaries in such Unrestricted Subsidiary at the time of the
redesignation, combination or transfer (or of the assets transferred or
conveyed, as applicable).
(c) So
long
as no Default or Event of Default has occurred and is continuing or would
be
caused thereby, the preceding provisions will not prohibit:
(1) the
payment of any dividend within 60 days after the date of declaration of the
dividend, if at the date of declaration the dividend payment would have complied
with the provisions of this Indenture;
(2) the
redemption, repurchase, retirement, repayment, defeasance or other acquisition
of any Subordinated Obligations of the Company or of any Equity Interests
of the
Company in
exchange for, or out of the net cash proceeds of the substantially concurrent
sale (other than to a Restricted Subsidiary of the Company) of, Equity Interests
of the Company (other than Disqualified Stock); provided,
however,
that the
amount of any such net cash proceeds that are utilized for any such redemption,
repurchase, retirement, repayment, defeasance or other acquisition will be
excluded from clause (c)(II) of the preceding paragraph;
(3) the
redemption, repurchase, repayment, retirement, defeasance or other acquisition
of any Subordinated Obligations of the Company with the net cash proceeds
from
an incurrence of Permitted Refinancing Indebtedness; provided,
however,
that
the amount of any such net cash proceeds that are utilized for any such
redemption, repurchase, repayment, retirement, defeasance or other acquisition
will be excluded from clause (c)(II) of the preceding paragraph;
(4) the
redemption, repurchase or other acquisition or retirement for value of any
Equity Interests of the Company or any Restricted Subsidiary of the Company
(a)
held by any member of the Company’s (or any of its Restricted Subsidiaries’)
management pursuant to any management equity subscription plan or agreement,
stock option or stock purchase plan or agreement or employee benefit plan
as may
be adopted by the Company from time to time or pursuant to any agreement
with
any director or officer in existence on the Issue Date or (b) from an employee
of the Company upon the termination of such employee’s employment with the
Company; provided,
however,
that the
aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests in reliance on this clause (4) may not exceed $3.0 million
in
any twelve-month period;
(5) repurchases,
acquisitions or retirements of Capital Stock of the Company deemed to occur
upon
the exercise or vesting of stock options or restricted stock or similar rights
under employee benefit plans of the Company or its Subsidiaries if such Capital
Stock represents all or a portion of the exercise price or withholding tax
thereof;
(6) redemptions
of Capital Stock consisting of common stock of the Company so long as (1)
the
aggregate purchase price for such Capital Stock redeemed after the issue
date
shall not exceed $65,000,000, (2) all such redemptions are consummated on
or
before April 1, 2011, and (3) in the case of any such redemption which would
cause the aggregate purchase price of all redemptions during such calendar
quarter to exceed $25,000,000, on the date of such redemption, the Company
delivers to the trustee a notice of such redemption which states that the
aggregate amount of all redemptions during such calendar quarter will exceed
$25,000,000, along with a calculation demonstrating that the Total Debt to
Consolidated Cash Flow Ratio is no more than 2.0 to 1.0 both as of the date
thereof (based on a computation period of the twelve calendar month period
most
recently ended) and on a pro forma basis after giving effect to such redemption;
and
(7) other
Restricted Payments in an aggregate amount since the issue date not to exceed
$25.0 million.
47
The
amount of all Restricted Payments (other than cash) will be the Fair Market
Value on the date of the Restricted Payment of the assets, property 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.
Not later than the date of making any Restricted Payment (other than those
set
forth in clauses (1) through (7) of Section 4.10(c)), the Company will deliver
to the trustee an officers’ certificate stating that such Restricted Payment is
permitted and setting forth the basis upon which the calculations required
by
this Section 4.10 were computed, together with a copy of any fairness opinion
or
appraisal required by this Indenture. If the Company or a Restricted Subsidiary
makes a Restricted Payment which at the time of the making of such Restricted
Payment would in the good faith determination of the Company be permitted
under
the provisions of this Indenture, such Restricted Payment shall 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.
Section
4.10. Liens.
The
Company will not, and will not permit any of its Restricted Subsidiaries
to,
directly or indirectly, create, incur or assume any consensual Liens of any
kind
against or upon any of their respective properties or assets, or any proceeds,
income or profit therefrom or assign or convey any right to receive income
therefrom, except Permitted Liens, to secure any Indebtedness of the Company
unless prior to, or contemporaneously therewith, the Notes are equally and
ratably secured by a Lien on such property, assets, proceeds, income or profit;
provided,
however, that
if
such Indebtedness is expressly subordinated to the Notes, the Lien securing
such
Indebtedness will be subordinated and junior to the Lien securing the Notes
with
the same relative priority as such Indebtedness has with respect to the
Notes.
Section
4.11. Asset
Sales.
The
Company will not, and will not permit any of its Restricted Subsidiaries
to,
consummate an Asset Sale unless:
(1) the
Company (or
the
Restricted Subsidiary, as the case may be) receives consideration at the
time of
the Asset Sale at least equal to the Fair Market Value of the assets sold,
leased, transferred, conveyed or otherwise disposed of or Equity Interests
of
any Restricted Subsidiary of the Company issued, sold, transferred, conveyed
or
otherwise disposed of;
(2) at
least
75% of the consideration received in the Asset Sale by the Company or such
Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes
of this clause (2), each of the following will be deemed to be
cash:
(a) any
liabilities, as shown on the Company’s or such Restricted Subsidiary’s most
recent balance sheet, of the Company or any of its Restricted Subsidiaries
(other than contingent liabilities and liabilities that are by their terms
subordinated to the Notes) that are assumed by the transferee of any such
assets
pursuant to a customary novation agreement that releases the Company or such
Restricted Subsidiary from further liability; and
(b) any
securities, notes or other obligations received by the Company or any such
Restricted Subsidiary from such transferee that are converted by the Company
or
such Restricted Subsidiary into cash within 90 days, to the extent of the
cash
received in that conversion; and
(3) the
Company delivers an officers' certificate to the trustee certifying that
such
Asset Sale complies with the foregoing clauses (1) and (2).
Within
365 days after the receipt of any Net Proceeds from an Asset Sale, the Company
or such Restricted Subsidiary may apply those Net Proceeds (or any portion
thereof) at its option:
48
(1) to
permanently repay Senior Debt of the Company (other than Indebtedness owed
to
the Company or any Affiliate of the Company) and, if the Senior Debt repaid
is
revolving credit Indebtedness, to correspondingly reduce commitments with
respect thereto;
(2) to
acquire all or substantially all of the assets of, or all of the Voting Stock
of, another Person engaged in a Permitted Business; or
(3) to
acquire other long-term assets or property that are used in a Permitted
Business;
provided
that a
binding commitment to apply Net Proceeds as set forth in clauses (1), (2)
and
(3) above shall be treated as a permitted application of the Net Proceeds
from
the date of such commitment so long as the Company or such Restricted Subsidiary
enters into such commitment with the good faith expectation that such Net
Proceeds will be applied to satisfy such commitment within 180 days of such
commitment (an “Acceptable Commitment”) and, in the event any Acceptable
Commitment is later cancelled or terminated for any reason before the Net
Proceeds are applied in connection therewith, then the Company or such
Restricted Subsidiary shall be permitted to apply the Net Proceeds in any
manner
set forth in clauses (1), (2) and (3) above before the expiration of such
180-day period, and, in the event the Company or such Restricted Subsidiary
fails to do so, such Net Proceeds shall constitute Excess Proceeds (as defined
below). Pending the final application of any Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise invest the Net
Proceeds in any manner that is not prohibited by this Indenture.
Any
Net
Proceeds from Asset Sales that are not applied or invested as provided in
the
preceding paragraph will constitute “Excess Proceeds.” When
the
aggregate amount of Excess Proceeds exceeds $10.0 million, the Company will
make an offer (the “Asset
Sale Offer”)
to all
Holders of notes to purchase the maximum principal amount of notes and, if
the
Company is required to do so under the terms of any other Indebtedness that
is
pari
passu
with the
Notes, such other Indebtedness on a pro rata basis with the Notes, that may
be
purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer
will be equal to 100% of principal amount plus accrued and unpaid interest
and
Additional Interest, if any, to the date of purchase, and will be payable
in
cash. If any Excess Proceeds remain after consummation of the purchase of
all
properly tendered and not withdrawn notes pursuant to an Asset Sale Offer,
the
Company may use such remaining Excess Proceeds for any purpose not otherwise
prohibited by this Indenture. If
the
aggregate principal amount of notes and other pari
passu
Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the trustee will select the Notes and such other pari
passu
Indebtedness to be purchased on a pro rata basis. Upon completion of each
Asset
Sale Offer, the amount of Excess Proceeds will be reset at zero.
The
Company will comply with the requirements of Rule 14e-1 under the Exchange
Act
and any other securities laws and regulations thereunder to the extent those
laws and regulations are applicable in connection with each repurchase of
notes
pursuant to an Asset Sale Offer. To the extent that the provisions of any
securities laws or regulations conflict with the Asset Sale provisions of
this
Indenture, the Company will comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under
this
Section 4.12 or Section 3.09 by virtue of such compliance.
Section
4.12. Restrictions
on Distributions from Restricted Subsidiaries.
The
Company will not, and will not permit any of its Restricted Subsidiaries
to,
directly or indirectly, create or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any of its Restricted
Subsidiaries to:
(a) pay
dividends or make any other distributions on its Capital Stock to the Company
or
any of its Restricted Subsidiaries, or with respect to any other interest
or
participation in, or measured by, its profits, or pay any indebtedness owed
to
the Company or any of its Restricted Subsidiaries;
(b) make
loans or advances to the Company or any of its Restricted Subsidiaries;
or
49
(c) transfer
any of its properties or assets to the Company or any of its Restricted
Subsidiaries.
However,
the preceding restrictions will not apply to encumbrances or restrictions
existing under or by reason of:
(1) agreements
governing Existing Indebtedness and Credit Facilities (including the Credit
Agreement) as in effect on the Issue Date and any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements
or
refinancings of those agreements; provided
that
the
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacement or refinancings are no more restrictive, taken as
a
whole, with respect to such dividend and other payment restrictions than
those
contained in those agreements on the Issue Date;
(2) this
Indenture and the Notes;
(3) applicable
law or any applicable rule, regulation or order of, or arrangement with,
any
regulatory body or agency;
(4) any
instrument governing Indebtedness or Capital Stock of a Person acquired by
the
Company or any of its Restricted Subsidiaries as in effect at the time of
such
acquisition (except to the extent such Indebtedness or Capital Stock was
incurred in connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any Person, or the properties
or
assets of any Person, other than the Person, or the property or assets of
the
Person, so acquired; provided
that,
in
the case of Indebtedness, such Indebtedness was permitted by the terms of
this
Indenture to be incurred;
(5) restrictions
on cash or other deposits or net worth imposed by customers or governmental
regulatory bodies or required by insurance, surety or bonding companies,
in each
case pursuant to contracts entered into in the ordinary course of business
of
the Company and its Restricted Subsidiaries;
(6) customary
non-assignment provisions in leases and other contracts entered into in the
ordinary course of business and consistent with industry practices;
(7) purchase
money obligations for property acquired in the ordinary course of business
that
impose restrictions on that property of the nature described in clause (c)
of
the first paragraph of this Section 4.13;
(8) any
agreement for the sale or other disposition of a Restricted Subsidiary or
the
assets of a Restricted Subsidiary that restricts distributions by that
Restricted Subsidiary pending its sale or other disposition or the sale or
other
disposition of its assets;
(9) Permitted
Refinancing Indebtedness; provided,
however, that
the
restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are not materially more restrictive, taken as a whole, than
those
contained in the agreements governing the Indebtedness being
refinanced;
(10) Liens
securing Indebtedness otherwise permitted to be incurred under the provisions
of
Section 4.11 that limit the right of the debtor to dispose of the assets
subject
to such Liens; and
(11) provisions
with respect to the disposition or distribution of assets or property in
joint
venture agreements, asset sale agreements, stock sale agreements and other
similar agreements entered into in the ordinary course of business.
Section
4.13. Affiliate
Transactions.
The
Company will not, and will not permit any of its Restricted Subsidiaries
to,
make any payment to, or sell, lease, transfer or otherwise dispose of any
of its
properties or assets to, or purchase any property
50
or
assets
from, or enter into or make or amend any transaction, contract, agreement,
understanding, loan, advance or Guarantee with, or for the benefit of, any
Affiliate (each, an “Affiliate Transaction”), unless:
(1) the
Affiliate Transaction is on terms that are no less favorable to the Company
or
the relevant Restricted Subsidiary than those that would have been obtained
in a
comparable transaction by the Company or such Restricted Subsidiary with
an
unrelated Person; and
(2) the
Company delivers to the Trustee:
(a) with
respect to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $5.0 million, a resolution
of the
Board of Directors set forth in an Officers’ Certificate certifying that such
Affiliate Transaction complies with this covenant and that such Affiliate
Transaction has been approved by a majority of the disinterested members
of the
Board of Directors; and
(b) with
respect to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $10.0 million, an opinion
as to
the fairness to the Company or such Restricted Subsidiary from a financial
point
of view issued by an accounting, appraisal or investment banking firm of
national standing not affiliated with the Company.
The
following items will not be deemed to be Affiliate Transactions and, therefore,
will not be subject to the provisions of the prior paragraph:
(1) transactions
solely between or among the Company and/or any of its Restricted Subsidiaries
or
solely among its Restricted Subsidiaries;
(2) sales
of
Equity Interests (other than Disqualified Stock) to Affiliates of the Company;
and
(3) reasonable
and customary directors' fees, indemnification and similar arrangements,
consulting fees, employee salaries, bonuses or employment agreements,
compensation or employee benefit arrangements and incentive arrangements
with
any officer, director or employee of the Company or a Restricted Subsidiary
entered into in the ordinary course of business;
(4) any
payments or other transactions pursuant to the Tax Sharing
Agreement;
(5) any
transactions (other than any Permitted Investment) made in compliance with
the
Section 4.10;
(6) loans
and
advances to non-executive officers and employees of the Company or any of
its
Restricted Subsidiaries in the ordinary course of business in accordance
with
the past practices of the Company or any of its Restricted Subsidiaries;
and
(7) any
agreement as in effect as of the Issue Date or any amendment thereto so long
as
any such amendment is not more disadvantageous to the Holders in any material
respect than the original agreement as in effect on the Issue Date.
Section
4.14. Sale
and Leaseback Transactions.
The
Company will not, and will not permit any of its Restricted Subsidiaries
to
enter into any Sale/Leaseback Transaction (other than any such transaction
entered into in connection with the Centene Plaza Divestiture),
unless:
51
(1) the
Company or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Sale/Leaseback Transaction at least equal
to
the Fair Market Value of the property subject to such transaction;
(2) the
Company or such Restricted Subsidiary could have incurred Indebtedness in
an
amount equal to the Attributable Debt in respect of such Sale/Leaseback
Transaction pursuant to Section 4.09;
(3) the
Company or such Restricted Subsidiary would be permitted to create a Lien
on the
property subject to such Sale/Leaseback Transaction without securing the
Notes
by Section 4.11; and
(4) the
Sale/Leaseback Transaction is treated as an Asset Sale and all of the conditions
of Section 4.12 (including the provisions concerning the application of Net
Proceeds) are satisfied with respect to such Sale/Leaseback Transaction,
treating all of the consideration received in such Sale/Leaseback Transaction
as
Net Proceeds for purposes of Section 4.12.
Section
4.15. Designation
of Restricted and Unrestricted Subsidiaries.
The
Company’s Board of Directors may designate any of its Subsidiaries, including
any newly formed Subsidiary or any Person that will become a Subsidiary by
way
of acquisition, to be an Unrestricted Subsidiary if that designation would
not
cause a Default. If any of the Company’s Restricted Subsidiaries is designated
as an Unrestricted Subsidiary, the aggregate fair market value of all
outstanding Investments owned by the Company and its Restricted Subsidiaries
in
the newly designated Unrestricted Subsidiary shall be deemed to be an Investment
made as of the time of that designation and will reduce the amount available
for
Restricted Payments under Section 4.10(a) or “Permitted Investments,” as
determined by the Company. The designation of such a Subsidiary or Person
as an
“Unrestricted Subsidiary” will be permitted only if, in the case of a Restricted
Subsidiary, the deemed Investment would be permitted at the time the Restricted
Subsidiary is designated as an Unrestricted Subsidiary and, in any case,
if that
Subsidiary or Person otherwise satisfies the requirements set forth in the
definition of “Unrestricted Subsidiary.”
Any
designation of a Subsidiary of the Company as an Unrestricted Subsidiary
shall
be evidenced to the Trustee by filing with the Trustee a certified copy of
the
Board Resolution giving effect to such designation and an Officers’ Certificate
certifying that such designation complied with the preceding conditions and
was
permitted by Section 4.10 hereof. If, at any time, any Unrestricted Subsidiary
would fail to meet the preceding requirements as an Unrestricted Subsidiary,
it
will thereafter cease to be an Unrestricted Subsidiary for purposes of this
Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred
by a Restricted Subsidiary of the Company as of such date and, if such
Indebtedness is not permitted to be incurred as of such date under Section
4.09
hereof, the Company will be in default of such covenant. The Board of Directors
of the Company may at any time designate any Unrestricted Subsidiary to be
a
Restricted Subsidiary; provided
that
such designation will be deemed to be an incurrence of Indebtedness by one
of
the Company’s Restricted Subsidiaries of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation will only be permitted if (1)
such
Indebtedness is permitted under Section 4.09, calculated on a pro forma basis
as
if such designation had occurred at the beginning of the four-quarter reference
period; and (2) no Default or Event of Default would be in existence following
such designation
Section
4.16. Repurchase
at the Option of Holders Upon a Change of Control.
(a) Upon
the
occurrence of a Change of Control, the Company shall, within 10 days of a
Change
of Control, make an offer (the “Change
of Control Offer”)
pursuant to the procedures set forth in Section 3.09. Each Holder shall have
the
right to accept such offer and require the Company to repurchase all or any
portion (equal to $1,000 or an integral multiple of $1,000) of such Holder’s
Notes pursuant to the Change of Control Offer at a purchase price, in cash
(the
“Change
of Control Amount”),
equal
to 101% of the aggregate principal amount of Notes repurchased, plus accrued
and
unpaid interest and Additional Interest, if any, on the Notes repurchased,
to
the Purchase Date.
52
(b) 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 the Company and purchases all Notes properly tendered and not
withdrawn under the Change of Control Offer.
Section
4.17. Business
Activities.
The
Company will not, and will not permit any Subsidiary to, engage in any business
other than Permitted Businesses.
Section
4.18. Limitations
on Issuances of Guarantees of Indebtedness.
The
Company will not permit any of its Restricted Subsidiaries, directly or
indirectly, to guarantee or pledge any assets to secure the payment of any
other
Indebtedness of the Company unless such Restricted Subsidiary simultaneously
executes and delivers a supplemental indenture providing for the guarantee
of
the payment of the Notes by such Restricted Subsidiary. The Subsidiary Guarantee
will be (1) senior to such Restricted Subsidiary’s Guarantee of or pledge to
secure such other Indebtedness if such other Indebtedness is subordinated
to the
Notes; or (2) pari passu with such Restricted Subsidiary’s Guarantee of or
pledge to secure such other Indebtedness if such other Indebtedness is not
subordinated to the Notes.
The
Subsidiary Guarantee of a Guarantor will be automatically and unconditionally
released:
(1)
in
connection with any sale of other disposition of all or substantially all
of the
assets of that Guarantor (including by way of merger or consolidation) to
a
Person that is not (either before or after giving effect to such transaction)
the Company or a subsidiary of the Company, if the sale or other disposition
does not violate Section 4.12 hereof;
(2) in
connection with any sale or other disposition of all of the Capital Stock
of
that Guarantor to a Person that is not (either before or after giving effect
to
such transaction) the Company or a subsidiary of the Company, if the sale
or
other disposition does not violate Section 4.12 hereof;
(3) if
the
Company designates any of its Restricted Subsidiaries that is a Guarantor
to be
an Unrestricted Subsidiary in accordance with the applicable provisions of
this
Indenture;
(4) upon
legal defeasance, covenant defeasance or satisfaction and discharge of the
Notes
as provided below under the Sections 8.02, 8.03 and 11.01 hereof;
or
(5) if
such
Guarantor is released from the underlying Guarantee of Indebtedness giving
rise
to the execution of a Subsidiary Guarantee.
The
form
of Subsidiary Guarantee is attached hereto as Exhibit E. Notwithstanding
the
foregoing, if the Company guarantees Indebtedness incurred by any of the
Restricted Subsidiaries, such Guarantee by the Company will not require any
of
its Restricted Subsidiaries to provide a Subsidiary Guarantee for the
Notes.
Section
4.19. Covenant
Termination
Following
the first day:
(a) the
notes
have an Investment Grade Rating from both of the Ratings Agencies;
and
(b) no
Default has occurred and is continuing under this Indenture;
the
Company and its Restricted Subsidiaries shall cease to be subject to the
provisions of:
(1) Section
4.10;
53
(2) Section
4.09;
(3) Section
4.13;
(4) Section
4.18;
(5) Section
4.19;
(6) Section
4.14; and
(7) Section
4.12
(collectively,
the “Terminated Covenants”). No Default, Event of Default or breach of any kind
shall be deemed to exist under the Indenture or the Notes with respect to
the
Terminated Covenants based on, and none of the Company or any of its
Subsidiaries shall bear any liability for, any actions taken or events occurring
after the Notes attain an Investment Grade Rating, regardless of whether
such
actions or event would have been permitted if the applicable Terminated
Covenants remained in effect. The Terminated Covenants will not be reinstated
even if the Company subsequently does not satisfy the requirements set forth
in
clauses (a) and (b) above. After the Terminated Covenants have been terminated,
Company and its Restricted Subsidiaries shall remain subject to the provisions
of Section 4.17 and the following Sections:
(1) Section
4.11;
(2) Section
5.01 (other than clause (iv) thereof);
(3) Section
4.15;
(4) Section
4.08; and
(5) Section
4.03.
ARTICLE
5.
SUCCESSORS
Section
5.01. Merger,
Consolidation and Sale of Assets
(a) The
Company may not, directly or indirectly, consolidate or merge with or into
another Person (whether or not the Company is the Surviving Corporation)
or
sell, assign, transfer, convey, lease or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions, to another person, unless:
(i) either:
(A) the
Company shall be the surviving person or
(B) the
Person (if other than the Company) 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 has been made shall be a
corporation organized or existing under the laws of the United States of
America, any State thereof or the District of Columbia;
54
(C) the
Person formed by or surviving any such consolidation or merger (if other
than
the Company) or the person to which such sale, assignment, transfer, conveyance
or other disposition has been made assumes, by supplemental indenture in
form
satisfactory to the Trustee, all the obligations of the Company under the
Notes
and this Indenture;
(ii) immediately
after such transaction or series of transactions on a pro
forma basis
(and treating, for purposes of this clause (iii) and clause (iv) below, any
Debt that becomes, or is anticipated to become, an obligation of the surviving
person as a result of such transaction or series of transactions as having
been
Incurred by the surviving person at the time of such transaction or series
of
transactions), no Default or Event of Default shall have occurred and be
continuing;
(iii) except
with respect to a consolidation or merger of the Company with or into a
Restricted Subsidiary, the Company or the Person formed by or surviving any
such
consolidation or merger (if other than the Company), or to which such sale,
assignment, transfer, conveyance or other disposition has been made will,
on the
date of such transaction after giving pro forma effect thereto and any related
financing transactions as if the same had occurred at the beginning of the
applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test
set
forth in Section 4.09(a) hereof; and
(iv) the
Company shall deliver, or cause to be delivered, to the Trustee, in form
and
substance satisfactory to the Trustee, in its reasonable judgment, an Officers’
Certificate and an Opinion of Counsel, each stating that such transaction
or
series of transactions and the supplemental indenture, if any, in respect
thereto comply with this covenant and that all conditions precedent herein
provided for relating to such transaction or series of transactions have
been
satisfied.
(b) The
foregoing provisions (other than clause (v)) shall not apply to any
transaction or series of transactions which constitute an Asset Sale if the
Company has complied with Section 4.12.
(c) The
sale,
assignment, transfer, lease, conveyance or other disposition of all or
substantially all of the properties or assets of one or more Subsidiaries
of the
Company, which properties or assets, if held by the Company instead of such
Subsidiaries, would constitute all or substantially all of the properties
or
assets of the Company on a consolidated basis, shall be deemed to be the
transfer of all or substantially all of the properties or assets of the
Company.
Section
5.02. Successor
Corporation Substituted.
The
Surviving Person shall succeed to, and be substituted for, and may exercise
every right and power of the Company or a Guarantor, as applicable ,under
this
Indenture; provided,
however,
that
the predecessor entity shall not be released from any of the obligations
or
covenants under this Indenture, including with respect to the payment of
the
Notes and obligations under a Subsidiary Guarantee, if any, in the case
of:
(a) a
sale,
transfer, assignment, conveyance or other disposition (unless such sale,
transfer, assignment, conveyance or other disposition is of all or substantially
all of the assets of the Company, taken as a whole), or
(b) a
lease.
55
(c)
DEFAULTS
AND REMEDIES
Section
5.03. Events
of Default.
Each
of
the following constitutes an “Event of Default” with respect to the
Notes:
(a) failure
to make the payment of any interest or Additional Interest on the Notes when
the
same becomes due and payable, and such failure continues for a period of
30
days;
(b) failure
to make the payment of any principal of, or premium, if any, on, any of the
Notes when the same becomes due and payable at its Stated Maturity, upon
acceleration, redemption, optional redemption, required repurchase or otherwise;
(c) failure
to comply with Section 5.01;
(d) failure
by the Company or any of its Restricted Subsidiaries for 30 days after notice
to
comply with the provisions described under Sections 4.09, 4.10, 4.12 and
4.17
hereof;
(e) failure
by the Company for 120 days after notice to comply with the provisions described
under Section 4.03;
(f) failure
by the Company or any of its Restricted Subsidiaries for 60 days after notice
to
comply with any of its other agreements in this Indenture or the
Notes;
(g) default
under any mortgage, indenture or instrument under which there may be issued
or
by which there may be secured or evidenced any Indebtedness for money borrowed
by the Company or any of its Restricted Subsidiaries (or the payment of which
is
guaranteed by the Company or any of its Restricted Subsidiaries whether such
Indebtedness or Guarantee now exists, or is created after the Issue Date,
if
that default:
(A) is
caused
by a failure to pay principal of, or interest or premium, if any, on such
Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a “Payment Default”); or
(B) results
in the acceleration of such Indebtedness prior to its express
maturity,
and,
in
each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been
a
Payment Default or the maturity of which has been so accelerated, aggregates
$15.0 million or more;
(h) failure
by the Company or any of its Restricted Subsidiaries to pay final
non-appealable judgments entered by a court or courts of competent jurisdiction
aggregating
in excess of $15.0 million, which judgments are not paid, discharged or stayed
for a period of 60 days;
(i) the
Company or any of its Significant Subsidiaries or any group of Subsidiaries
that, when taken together, would constitute a Significant Subsidiary pursuant
to
or within the meaning of any Bankruptcy Law:
(A) commences
a voluntary case or gives notice of intention to make a proposal under any
Bankruptcy Law;
(B) consents
to the entry of an order for relief against it in an involuntary case or
consents to its dissolution or winding up;
56
(C)
consents to the appointment of a receiver, interim receiver, receiver and
manager, liquidator, trustee or custodian of it or for all or substantially
all
of its property;
(D) makes
a
general assignment for the benefit of its creditors; or
(E) admits
in
writing its inability to pay its debts as they become due or otherwise admits
its insolvency; and
(j) a
court
of competent jurisdiction enters an order or decree under any Bankruptcy
Law
that:
(A) is
for
relief against the Company or any of its Significant Subsidiaries or any
group
of Subsidiaries that, when taken together, would constitute a Significant
Subsidiary in an involuntary case; or
(B) appoints
a receiver, interim receiver, receiver and manager, liquidator, trustee or
custodian of the Company or any of its Significant Subsidiaries or any group
of
Subsidiaries that, when taken together, would constitute a Significant
Subsidiary or for all or substantially all of the property of the Company
or any
of its Significant Subsidiaries or any group of Subsidiaries that, when taken
together, would constitute a Significant Subsidiary; or
(C) orders
the liquidation of the Company or any of its Significant Subsidiaries or
any
group of Subsidiaries that, when taken together, would constitute a Significant
Subsidiary;
and
such
order or decree remains unstayed and in effect for 60 consecutive
days.
Section
5.04. Acceleration.
If
any
Event of Default (other than those of the type described in Section 6.01(i)
or
(j)) occurs and is continuing, the Trustee may, and the Trustee upon the
request
of Holders of 25% in principal amount of the outstanding Notes shall, or
the
Holders of at least 25% in principal amount of outstanding Notes may, declare
the principal of all the Notes, together with all accrued and unpaid interest,
premium, if any, to be due and payable by notice in writing to the Company
and
the Trustee specifying the respective Event of Default and that such notice
is a
notice of acceleration (the “Acceleration
Notice”),
and
the same shall become immediately due and payable.
In
the
case of an Event of Default specified in Section 6.01(i) or (j) all outstanding
Notes shall become due and payable immediately without any further declaration
or other act on the part of the Trustee or the Holders. Holders may not enforce
this Indenture or the Notes except as provided in this Indenture.
Section
5.05. Other
Remedies.
If
an
Event of Default occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of principal, premium, if any, and interest
on the
Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The
Trustee may maintain a proceeding even if it does not possess any of the
Notes
or does not produce any of them in the proceeding. A delay or omission by
the Trustee or any Holder in exercising any right or remedy accruing upon
an
Event of Default shall not impair the right or remedy or constitute a waiver
of
or acquiescence in the Event of Default. All remedies shall be cumulative
to the
extent permitted by law.
57
Waiver
of
Defaults.
(a) The
Holders of at least a majority in aggregate principal amount of the Notes
then
outstanding by notice to the Trustee may on behalf of the Holders of all
of the
Notes, waive any existing Default or Event of Default, and its consequences,
except a continuing Default or Event of Default (i) in the payment of the
principal of, premium, if any, or interest, on the Notes and (ii) in respect
of
a covenant or provision which under this Indenture cannot be modified or
amended
without the consent of the Holder of each Note affected by such modification
or
amendment.
(b) Upon
any
waiver of a Default or Event of Default, such Default shall cease to exist,
and
any Event of Default arising therefrom shall be deemed 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
5.06. Control
by Majority.
Subject
to Section 7.01, Section 7.02(f) (including the Trustee’s receipt of the
security or indemnification described therein) and Section 7.07 hereof, in
case
an Event of Default shall occur and be continuing, the Holders of a majority
in
aggregate principal amount of the Notes then outstanding 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 power conferred on the
Trustee with respect to the Notes.
Section
5.07. Limitation
on Suits.
No
Holder
shall have any right to institute any proceeding with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any remedy thereunder,
unless:
(a) such
Holder has previously given to the Trustee written notice of a continuing
Event
of Default or the Trustee receives the notice from the Company,
(b) Holders
of at least 25% in aggregate principal amount of the Notes then outstanding
have
made written request and offered indemnity to the Trustee reasonably
satisfactory to it to institute such proceeding as trustee, and
(c) the
Trustee shall not have received from the Holders of a majority in aggregate
principal amount of the Notes then outstanding a direction inconsistent with
such request and shall have failed to institute such proceeding within 60
days.
The
preceding limitations shall not apply to a suit instituted by a Holder for
enforcement of payment of principal of, and premium, if any, or interest
on, a
Note on or after the respective due dates for such payments set forth in
such
Note.
A
Holder
may not use this Indenture to affect, disturb or prejudice the rights of
another
Holder or to obtain a preference or priority over another Holder.
Section
5.08. Rights
of Holders to Receive Payment.
Notwithstanding
any other provision of this Indenture (including Section 6.06), the right
of any
Holder to receive payment of principal, premium, if any, and interest and
Additional Interest on the Notes held by such Holder, on or after the respective
due dates expressed in the Notes (including in connection with an offer to
purchase), or to bring suit for the enforcement of any such payment on or
after
such respective dates, shall not be impaired or affected without the consent
of
such Holder.
58
Collection
Suit by Trustee.
If
an
Event of Default specified in Section 6.01 (a) or (b) occurs and is continuing,
the Trustee is authorized to recover judgment in its own name and as trustee
of
an express trust against the Company for the whole amount of principal of,
premium, if any, and interest then due and owing (together with interest
on
overdue principal and, to the extent lawful, interest) and such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
Section
5.09. Trustee
May File Proofs of Claim.
The
Trustee shall be authorized to file such proofs of claim and other papers
or
documents as may be necessary or advisable in order to have the claims of
the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any
such
judicial proceeding is hereby authorized by each Holder to make such payments
to
the Trustee, and in the event that the Trustee shall consent to the making
of
such payments directly to the Holders, to pay to the Trustee any amount due
to
it for the reasonable compensation, expenses, disbursements and advances
of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee and its agents and counsel,
and any other amounts due the Trustee under Section 7.07 hereof out of the
estate in any such proceeding, shall be denied for any reason, payment of
the
same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, moneys, securities and any other properties that the Holders
may
be entitled to receive in such proceeding whether in liquidation or under
any
plan of reorganization or arrangement or otherwise. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept
or
adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder,
or to
authorize the Trustee to vote in respect of the claim of any Holder in any
such
proceeding.
Section
5.10. Priorities.
If
the
Trustee collects any money pursuant to this Article 6, it shall pay out the
money in the following order:
First:
to the
Trustee, its agents and attorneys for amounts due under Section 7.07 hereof,
including payment of all compensation, expenses and liabilities incurred,
and
all advances made, by the Trustee and the costs and expenses of
collection;
Second:
to
Holders for amounts due and unpaid on the Notes for principal, premium, if
any,
and interest ratably, without preference or priority of any kind, according
to
the amounts due and payable on the Notes for principal, premium, if any,
and
interest, respectively; and
Third:
to the
Company or to such party as a court of competent jurisdiction shall
direct.
The
Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 6.10.
Section
5.11. Undertaking
for Costs.
In
any
suit for the enforcement of any right or remedy under this Indenture or in
any
suit against the Trustee for any action taken or omitted by it as a Trustee,
a
court in its discretion may require the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 shall
59
not
apply
to a suit by the Trustee, a suit by the Company, a suit by a Holder pursuant
to
Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount
of the then outstanding Notes.
ARTICLE
6.
TRUSTEE
Section
6.01. Duties
of Trustee
(a) If
an
Event of Default has occurred and is continuing, the Trustee shall exercise
such
of the rights and powers vested in it by this Indenture, and use the same
degree
of care and skill in its exercise, as a prudent Person would exercise or
use
under the circumstances in the conduct of such Person’s own
affairs.
(b) Except
during the continuance of an Event of Default:
(1) the
duties of the Trustee shall be determined solely by the express provisions
of
this Indenture and the Trustee need perform 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
(2) in
the
absence of bad faith on its part, the Trustee may conclusively rely, as to
the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to
the
requirements of this Indenture. However, in the case of certificates or
opinions specifically required by any provision herein to be furnished to
it,
the Trustee shall examine the certificates and opinions to determine whether
or
not they conform to the requirements of this Indenture (but need not confirm
or
investigate the accuracy of mathematical calculations or other facts stated
therein).
(c) The
Trustee may not be relieved from liabilities for its own negligent action,
its
own negligent failure to act, or its own willful misconduct, except
that:
(1) this
paragraph does not limit the effect of paragraph (b) of this
Section;
(2) the
Trustee shall not be liable for any error of judgment made in good faith
by a
Responsible Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the
Trustee shall not be liable with respect to any action it takes or omits to take
in good faith in accordance with a direction received by it pursuant to Section
6.05 hereof.
(d) Whether
or not therein expressly so provided, every provision of this Indenture that
in
any way relates to the Trustee is subject to paragraphs (a), (b) and (c)
of this
Section 7.01.
(e) No
provision of this Indenture shall require the Trustee to expend or risk its
own
funds or incur any liability. The Trustee shall be under no obligation to
exercise any of its rights and powers under this Indenture at the request
of any
Holders, unless such Holder shall have offered to the Trustee security and
indemnity satisfactory to it against any loss, liability or
expense.
(f) The
Trustee shall not be liable for interest on any money received by it except
as
the Trustee may agree in writing with the Company. Money held in trust by
the
Trustee need not be segregated from other funds except to the extent required
by
law.
60
(g) Rights
of
Trustee.
Subject
to TIA Section 315:
(h) The
Trustee may conclusively rely upon any document believed by it to be genuine
and
to have been signed or presented by the proper Person. The Trustee need
not investigate any fact or matter stated in any such document.
(i) Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel or both. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers’ Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the advice of such counsel or any Opinion of Counsel shall be
full
and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(j) The
Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within the rights or powers conferred
upon it by this Indenture.
(k) Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company shall be sufficient if signed by an
Officer
of the Company.
(l) The
Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof
or
unless written notice of any event which is in fact such a Default or Event
of
Default is received by a Responsible Officer of the Trustee at the Corporate
Trust Office of the Trustee from the Company or the Holders of 25% in aggregate
principal amount of the outstanding Notes, and such notice references the
specific Default or Event of Default, the Notes and this Indenture.
(m) The
Trustee shall not be required to give any bond or surety in respect of the
performance of its power and duties hereunder.
(n) The
Trustee shall have no duty to inquire as to the performance of the Company’s
covenants herein.
(o) 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.
(p) 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 security or indemnity satisfactory to the Trustee against the costs,
expenses and liabilities which might be incurred by it in compliance with
such
request or direction.
(q) in
no
event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised
of the
likelihood of such loss or damage and regardless of the form of
action.
(r) the
Trustee shall not be deemed to have notice of any Default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof
or
unless written notice of any event which is in fact such a default is received
by the Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Securities and this Indenture.
(s) the
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended
to, and
shall be enforceable by, the Trustee in each of its capacities hereunder,
and
each agent, custodian and other Person employed to act hereunder.
61
(t) Individual
Rights
of Trustee.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Company or any Affiliate of the
Company
with the same rights it would have if it were not Trustee. However, in the
event
that the Trustee acquires any conflicting interest it must eliminate such
conflict within 90 days, apply to the Commission for permission to continue
as
Trustee or resign. Any Agent may do the same with like rights and duties.
The
Trustee shall also be subject to Sections 7.10 and 7.11 hereof.
Section
6.02. Trustee’s
Disclaimer.
The
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be accountable
for the Company’s use of the proceeds from the Notes or any money paid to the
Company or upon the Company’s direction under any provision of this Indenture,
it shall not be responsible for the use or application of any money received
by
any Paying Agent other than the Trustee, and it shall not be responsible
for any
statement or recital herein or any statement in the Notes or any other document
in connection with the sale of the Notes or pursuant to this Indenture other
than its certificate of authentication.
Section
6.03. Notice
of Defaults.
If
a
Default or Event of Default occurs and is continuing and if it is known to
the
Trustee, the Trustee shall mail to Holders a notice of the Default or Event
of
Default within 90 days after it occurs. Except in the case of a Default or
Event
of Default in payment of principal of, premium, if any, or interest on any
Note,
the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice
is in
the interests of the Holders.
Section
6.04. Reports
by Trustee to Holders.
Within
60
days after each May 15 beginning with the May 15 following the Issue Date,
and
for so long as Notes remain outstanding, the Trustee shall mail to the Holders
a
brief report dated as of such reporting date that complies with TIA §313(a) (but
if no event described in TIA §313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee
also shall comply with TIA §313(b)(2). The Trustee shall also transmit by mail
all reports as required by TIA §313(c).
A
copy of
each report at the time of its mailing to the Holders shall be mailed to
the
Company and filed with the Commission and each stock exchange on which the
Notes
are listed in accordance with TIA §313(d). The Company shall promptly
notify the Trustee when the Notes are listed on any stock exchange and any
delisting thereof.
Section
6.05. Compensation
and Indemnity.
The
Company shall pay to the Trustee from time to time reasonable compensation
for
its acceptance of this Indenture and services hereunder. The Trustee’s
compensation shall not be limited by any law on compensation of a trustee
of an
express trust. The Company shall reimburse the Trustee promptly upon request
for
all reasonable disbursements, advances and expenses incurred or made by it
in
addition to the compensation for its services. Such expenses shall include
the
reasonable compensation, disbursements and expenses of the Trustee’s agents and
counsel.
The
Company shall indemnify the Trustee (in its capacity as Trustee), its directors,
officers, employees or agents or any predecessor Trustee (in its capacity
as
Trustee) against any and all losses, claims, damages, penalties, fines,
liabilities or expenses, including incidental and out-of-pocket expenses
and
reasonable attorneys’ fees and expenses (for purposes of this Article,
“losses”)
incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including the costs and
expenses of enforcing this Indenture against the Company (including this
Section
7.07) and defending itself against any claim (whether asserted by the Company
or
any Holder or any other Person) or liability in connection with the exercise
or
performance of any of its powers or duties hereunder, except to the extent
such
losses may be determined to have
62
been
caused by its own negligence or willful misconduct. The Trustee shall notify
the
Company promptly of any claim for which it may seek indemnity. Failure by
the Trustee to so notify the Company shall not relieve the Company of its
obligations under this Section 7.07. The Company shall defend the claim,
and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel
if
the Trustee has been reasonably advised by counsel that there may be one
or more
legal defenses available to it that are different from or additional to those
available to the Company and in the reasonable judgment of such counsel it
is
advisable for the Trustee to engage 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 Company need not reimburse any expense or indemnify
against any loss incurred by the Trustee through the Trustee’s own willful
misconduct, gross negligence or bad faith.
The
obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture, the resignation or removal
of the
Trustee and payment in full of the Notes.
To
secure
the Company’s payment obligations in this Section, the Trustee shall have a Lien
prior to the Notes on all money or property held or collected by the Trustee,
except that held in trust to pay principal, premium, if any, and interest
on
particular Notes. Such Lien shall survive the satisfaction and discharge
of this
Indenture.
When
the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(i) or (j) hereof occurs, the expenses and the compensation
for
the services (including the fees and expenses of its agents and counsel)
are
intended to constitute expenses of administration under any Bankruptcy
Law.
Section
6.06. Replacement
of Trustee.
A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section 7.08.
The
Trustee may resign in writing at any time upon 30 days’ prior notice to the
Company and be discharged from the trust hereby created by so notifying the
Company. The Holders of a majority in aggregate principal amount of the then
outstanding Notes may remove the Trustee by so notifying the Trustee and
the
Company in writing. The Company may remove the Trustee if:
(a) the
Trustee fails to comply with Section 7.10 hereof;
(b) the
Trustee is adjudged bankrupt or insolvent or an order for relief is entered
with
respect to the Trustee under any Bankruptcy Law;
(c) a
custodian or public officer takes charge of the Trustee or its property;
or
(d) the
Trustee becomes incapable of acting.
If
the
Trustee resigns or is removed or if a vacancy exists in the office of Trustee
for any reason (the Trustee in such event being referred to herein as the
retiring Trustee), the Company shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holders of
a
majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the
Company.
If
a
successor Trustee does not take office within 30 days after the retiring
Trustee
resigns or is removed, the retiring Trustee, the Company, or the Holders
of at
least 10% in aggregate principal amount of the then outstanding Notes may,
at
the expense of the Company, petition any court of competent jurisdiction
for the
appointment of a successor Trustee.
63
If
the
Trustee, after written request by any Holder who has been a Holder for at
least
six months, fails to comply with Section 7.10 hereof, such Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
A
successor Trustee shall deliver a written acceptance of its appointment to
the
retiring Trustee and to the Company. Thereupon, the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee
shall
have all the rights, powers and duties of the Trustee under this Indenture.
The
successor Trustee shall mail a notice of its succession to Holders.
Subject to the Lien provided for in Section 7.07 hereof, the retiring Trustee
shall promptly transfer all property held by it as Trustee to the successor
Trustee; provided,
however,
that
all sums owing to the Trustee hereunder shall have been paid. Notwithstanding
replacement of the Trustee pursuant to this Section 7.08, the Company’s
obligations under Section 7.07 hereof shall continue for the benefit of the
retiring Trustee.
In
the
case of an appointment hereunder of a separate or successor Trustee with
respect
to the Notes, the Company, any retiring Trustee and each successor or separate
Trustee with respect to the Notes shall execute and deliver a supplemental
indenture hereto (1) which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties
of any retiring Trustee with respect to the Notes as to which any such retiring
Trustee is not retiring shall continue to be vested in such retiring Trustee
and
(2) that shall add to or change any of the provisions of this Indenture as
shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or
in such supplemental indenture shall constitute such Trustee co-trustees
of the
same trust and that each such separate, retiring or successor Trustee shall
be
Trustee of a trust or trusts hereunder separate and apart from any trust
or
trusts hereunder administered by any such other Trustee.
Section
6.07. Successor
Trustee by Merger, etc.
If
the
Trustee consolidates, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or banking
association, the successor corporation or banking association without any
further act shall, if such successor corporation or banking association is
otherwise eligible hereunder, be the successor Trustee.
Section
6.08. Eligibility;
Disqualification.
There
shall at all times be a Trustee hereunder that is a Person organized and
doing
business under the laws of the United States of America or of any state thereof
that is authorized under such laws to exercise corporate trustee power, that
is
subject to supervision or examination by federal or state authorities and
that
has a combined capital and surplus of at least $50.0 million (or a wholly-owned
subsidiary of a bank or trust company, or of a bank holding company, the
principal subsidiary of which is a bank or trust company having a combined
capital and surplus of at least $50.0 million) as set forth in its most recent
published annual report of condition.
This
Indenture shall always have a Trustee who satisfies the requirements of TIA
§310(a)(1), (2) and (5). The Trustee is subject to TIA §310(b).
Section
6.09. Preferential
Collection of Claims Against Company.
The
Trustee is subject to TIA §311(a), excluding any creditor relationship listed in
TIA §311(b). A Trustee who has resigned or been removed shall be subject to TIA
§ 311(a) to the extent indicated therein.
64
LEGAL
DEFEASANCE AND COVENANT DEFEASANCE
Section
6.10. Option
to Effect Legal Defeasance or Covenant Defeasance.
The
Company may, at its option and at any time, elect to have either Section
8.02 or
8.03 hereof be applied to all outstanding Notes upon compliance with the
conditions set forth in this Article 8.
Section
6.11. Legal
Defeasance and Discharge.
Upon
the
Company’s exercise under Section 8.01 of the option applicable to this Section
8.02, the Company shall, subject to the satisfaction of the conditions set
forth
in Section 8.04, be deemed to have been discharged from its obligations with
respect to all outstanding Notes on the date the conditions set forth below
are
satisfied (hereinafter, “Legal
Defeasance”)
and
each Guarantor, if any, shall be released from all of its obligations under
its
Subsidiary Guaranty. For this purpose, Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire Debt represented by
the
outstanding Notes, which shall thereafter be deemed to be “outstanding” only for
the purposes of Section 8.05 and the other Sections of this Indenture referred
to in (a) and (b) below, and to have satisfied all its other obligations
under
the Notes and this Indenture (and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging the same),
except
for the following provisions which shall survive until otherwise terminated
or
discharged hereunder: (a) the rights of Holders of outstanding Notes to
receive solely from the trust fund described in Section 8.04, and as more
fully
set forth in such Section, payments in respect of the principal of, premium,
if
any, or interest and Additional Interest on such Notes when such payments
are
due, (b) the Company’s obligations with respect to such Notes under Article
2 and Sections 4.01 and 4.02, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Company’s and the Guarantor’s, if
any, obligations in connection therewith and (d) this Article 8. If the
Company exercises under Section 8.01 the option applicable to this Section
8.02,
subject to the satisfaction of the conditions set forth in Section 8.04,
payment
of the Notes may not be accelerated because of an Event of Default. Subject
to
compliance with this Article 8, the Company may exercise its option under
this
Section 8.02 notwithstanding the prior exercise of its option under Section
8.03.
Section
6.12. Covenant
Defeasance.
Upon
the
Company’s exercise under Section 8.01 of the option applicable to this Section
8.03, the Company shall, subject to the satisfaction of the conditions set
forth
in Section 8.04, be released from its obligations under the covenants contained
in Sections 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.17, 4.18 and 4.19
hereof, and the operation of Section 5.01(a)(iv), with respect to the
outstanding Notes on and after the date the conditions set forth in Section
8.04
are satisfied (hereinafter, “Covenant
Defeasance”)
and
each Guarantor, if any, shall be released from all of its obligations under
its
Subsidiary Guaranty with respect to such covenants in connection with such
outstanding Notes and the Notes shall thereafter be deemed not “outstanding” for
the purposes of any direction, waiver, consent or declaration or act of Holders
(and the consequences of any thereof) in connection with such covenants,
but
shall continue to be deemed “outstanding” for all other purposes hereunder (it
being understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect
to the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any
such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission
to
comply shall not constitute a Default or an Event of Default under Section
6.01,
but, except as specified above, the remainder of this Indenture and such
Notes
shall be unaffected thereby. If the Company exercises under Section 8.01
the
option applicable to this Section 8.03, subject to the satisfaction of the
conditions set forth in Section 8.04, payment of the Notes may not be
accelerated because of an Event of Default specified in clause (c) (with
respect
to the covenant contained in Section 5.01(a)(iv) hereof),
clause (d) (with respect to the covenants contained in Section 4.09, 4.10,
4.12
and 4.17 hereof), clause (f)(with respect to the covenants contained in Sections
4.11, 4.13, 4.14, 4.15, 4.18 and 4.19 hereof), and clauses (g), (h), (i)
and (j)
(but in the case of (i) and (j) of Section 6.01, with respect to Significant
Subsidiaries only).
65
Conditions
to Legal or Covenant Defeasance.
The
following shall be the conditions to the application of either Section 8.02
or
8.03 to the outstanding Notes.
The
Legal
Defeasance or Covenant Defeasance may be exercised only if:
(a) the
Company irrevocably deposits with the Trustee, in trust (the “defeasance
trust”),
for
the benefit of the Holders, cash in U.S. dollars, non-callable U.S. Government
Securities, or a combination of cash in U.S. dollars and non-callable U.S.
Government Securities, in amounts as will be sufficient, in the opinion of
a
nationally recognized firm of independent public accountants, to pay the
principal, premium, if any, and interest and Additional Interest on the
outstanding Notes on the Stated Maturity or on the next redemption date,
as the
case may be, and the Company shall specify whether the Notes are being defeased
to maturity or to such particular redemption date;
(b) in
the
case of Legal Defeasance, the Company shall deliver to the Trustee an Opinion
of
Counsel confirming that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (ii) subsequent to
the
Issue Date, there has been a change in the applicable federal income tax
law, in
either case to the effect that, and based thereon such Opinion of Counsel
shall
confirm that, the Holders of the outstanding Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same amounts,
in the
same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(c) in
the
case of Covenant Defeasance, the Company shall deliver to the Trustee an
Opinion
of Counsel confirming that the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax purposes as a result
of
such Covenant Defeasance and will be subject to federal income tax on the
same
amounts, in the same manner and at the same times as would have been the
case if
such Covenant Defeasance had not occurred;
(d) no
Default or Event of Default has occurred and is continuing on the date of
such
deposit (other than a Default or Event of Default resulting from the borrowing
of funds to be applied to such deposit and the grant of any Lien securing
such
borrowing);
(e) such
Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any material agreement or
instrument (other than this Indenture) to which the Company or any Subsidiary
is
a party or by which the Company or any Subsidiary is bound;
(f) the
Company shall deliver to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders
over other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding such other creditors; and
(g) the
Company delivers to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.
Section
6.13. Deposited
Cash and U.S. Government Securities to be Held in Trust; Other Miscellaneous
Provisions.
Subject
to Section 8.06, all cash and non-callable U.S. Government Securities (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 8.05, the “Trustee”)
pursuant to Section 8.04 in respect of the outstanding Notes shall be held
in
trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any
Paying
Agent (including the Company acting as Paying Agent) as the Trustee may
determine, to the Holders of all sums due and to become due thereon in respect
of principal, premium, if any, and interest but such cash and securities
need
not be segregated from other funds except to the extent required by
law.
66
The
Company shall pay and indemnify the Trustee against any tax, fee or other
charge
imposed on or assessed against the cash or non-callable U.S. Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding
Notes.
Anything
in this Article 8 to the contrary notwithstanding, the Trustee shall deliver
or
pay to the Company from time to time upon the request of the Company any
cash or
non-callable U.S. Government Securities held by it as provided in Section
8.04
which, in the opinion of a nationally recognized firm of independent certified
public accountants expressed in a written certification thereof delivered
to the
Trustee (which may be the certification delivered under Section 8.04(a)),
are in
excess of the amount thereof that would then be required to be deposited
to
effect an equivalent Legal Defeasance or Covenant Defeasance.
Section
6.14. Repayment
to Company.
The
Trustee shall promptly, and in any event, no later than five (5) Business
Days,
pay to the Company after request therefor, any excess money held with respect
to
the Notes at such time in excess of amounts required to pay any of the Company’s
Obligations then owing with respect to the Notes.
Any
cash
or non-callable U.S. Government Securities deposited with the Trustee or
any
Paying Agent, or then held by the Company, in trust for the payment of the
principal, premium, if any, or interest on any Note and remaining unclaimed
for
one year after such principal, premium, if any, or interest has become due
and
payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder shall thereafter,
as an unsecured creditor, look only to the Company for payment thereof, and
all
liability of the Trustee or such Paying Agent with respect to such cash and
securities, and all liability of the Company as trustee thereof, shall thereupon
cease; provided,
however,
that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once,
in
The
New York Times and
The
Wall Street Journal (national
edition), notice that such cash and securities remains unclaimed and that,
after
a date specified therein, which shall not be less than 30 days from the date
of
such notification or publication, any unclaimed balance of such cash and
securities then remaining shall be repaid to the Company.
Section
6.15. Reinstatement.
If
the
Trustee or Paying Agent is unable to apply any cash or non-callable U.S.
Government Securities in accordance with Section 8.02 or 8.03, as the case
may
be, by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company’s obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.02 or
8.03
until such time as the Trustee or Paying Agent is permitted to apply all
such
cash and securities in accordance with Section 8.02 or 8.03, as the case
may be;
provided,
however,
that,
if the Company makes any payment of principal of, premium, if any, or interest
on any Note following the reinstatement of its obligations, the Company shall
be
subrogated to the rights of the Holders to receive such payment from the
cash
and securities held by the Trustee or Paying Agent.
ARTICLE
7.
AMENDMENT,
SUPPLEMENT AND WAIVER
Section
7.01. Without
Consent of Holders of Notes.
Notwithstanding
Section 9.02 of this Indenture, the Company and the Trustee may amend or
supplement this Indenture or the Notes without the consent of any Holder
to:
(1) to
cure
any ambiguity, defect or inconsistency;
(2) to
provide for uncertificated Notes in addition to or in place of certificated
Notes;
67
(3) to
provide for the assumption of the Company’s obligations to Holders of Notes in
the case of a merger or consolidation or sale of all or substantially all
of the
Company’s assets;
(4) to
make
any change that would provide any additional rights or benefits to the Holders
of Notes or that does not adversely affect the legal rights under this Indenture
of any such Holder;
(5) to
provide for or confirm the issuance of Additional Notes otherwise permitted
to
be incurred by this Indenture; or
(6) to
comply
with requirements of the Commission in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act.
Section
7.02. With
Consent of Holders of Notes.
Except
as
provided below in this Section 9.02, the Company and the Trustee may amend
or
supplement this Indenture and the Notes with the consent of the Holders of
at
least a majority in aggregate principal amount of the Notes, including
Additional Notes, if any, then outstanding voting as a single class (including,
without limitation, consents obtained in connection with a purchase of or
tender
offer or exchange offer for the Notes), and, subject to Sections 6.04 and
6.07,
any existing Default or Event of Default or compliance with any provision
of
this Indenture or the Notes may be waived with the consent of the Holders
of at
least a majority in aggregate principal amount of the Notes, including
Additional Notes, if any, then outstanding voting as a single class (including,
without limitation, consents obtained in connection with a purchase of or
tender
offer or exchange offer for the Notes).
Without
the consent of each Holder affected, an amendment or waiver may not (with
respect to any Notes held by a non-consenting Holder):
(1) reduce
the principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver;
(2) reduce
the principal of or change the fixed maturity of any Note or alter the
provisions with respect to the redemption or repurchase of the Notes relating
to
Section 4.17 hereof (and any applicable definitions);
(3) reduce
the rate of or change the time for payment of interest on any Note;
(4) waive
a
Default or Event of Default in the payment of principal of, or interest or
premium, or Additional Interest, if any, on the Notes (except a rescission
of
acceleration of the Notes by the Holders of at least a majority in aggregate
principal amount of the Notes and a waiver of the payment default that resulted
from such acceleration);
(5) make
any
Note payable in money other than that stated in the Notes;
(6) make
any
change in the provisions (including applicable definitions) of the Indenture
relating to waivers of past Defaults or the rights of Holders of Notes to
receive payments of principal of, or interest or premium or Additional Interest,
if any, on the Notes;
(7) waive
a
redemption or repurchase payment with respect to any Note (including a payment
required by the provisions described under Sections 4.12 or 4.17
hereof;
(8) make
any
change in the ranking of the Notes in a manner adverse to the Holders of
the
Notes; or
(9) make
any
change in the preceding amendment and waiver provisions.
68
The
Company may, but shall not be obligated to, fix a record date for the purpose
of
determining the Persons entitled to consent to any supplemental indenture.
If a
record date is fixed, the Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to consent to such
supplemental indenture, whether or not such Holders remain Holders after
such
record date; provided
that
unless such consent shall have become effective by virtue of the requisite
percentage having been obtained prior to the date which is 120 days after
such
record date, any such consent previously given shall automatically and without
further action by any Holder be cancelled and of no further effect.
It
shall
not be necessary for the consent of the Holders under this Section 9.02 to
approve the particular form of any proposed amendment, supplement or waiver,
but
it shall be sufficient if such consent approves the substance
thereof.
After
an
amendment, supplement or waiver under this Section 9.02 becomes effective,
the
Company shall mail to the Holder of each Note affected thereby to such Holder’s
address appearing in the Security Register a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail such
notice,
or any defect therein, shall not, however, in any way impair or affect the
validity of any such amended or supplemental indenture or waiver.
Section
7.03. Compliance
with Trust Indenture Act.
Every
amendment or supplement to this Indenture or the Notes shall be set forth
in an
amended or supplemental indenture that complies with the TIA as then in
effect.
Section
7.04. Revocation
and Effect of Consents.
Until
an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
is a continuing consent by the Holder of a Note and every subsequent Holder
of a
Note or portion thereof that evidences the same debt as the consenting Holder’s
Note, even if notation of the consent is not made on any Note. However, any
such
Holder or subsequent Holder may revoke the consent as to its Note or portion
thereof if the Trustee receives written notice of revocation before the date
the
waiver, supplement or amendment becomes effective. An amendment, supplement
or
waiver shall become effective in accordance with its terms and thereafter
shall
bind every Holder.
Section
7.05. Notation
on or Exchange of Notes.
The
Trustee may place an appropriate notation about an amendment, supplement
or
waiver on any Note thereafter authenticated. The Company in exchange for
all Notes may issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate new Notes that reflect
the amendment, supplement or waiver.
Failure
to make the appropriate notation or issue a new Note shall not affect the
validity and effect of such amendment, supplement or waiver.
Section
7.06. Trustee
to Sign Amendments, etc.
The
Trustee shall sign any amended or supplemental indenture authorized pursuant
to
this Article 9 if the amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. The Company may
not sign an amendment or supplemental indenture until its board of directors
(or
committee serving a similar function) approves it. In executing any amended
or
supplemental indenture, the Trustee shall be provided with and (subject to
Section 7.01 hereof) shall be fully protected in relying upon an Officers’
Certificate and an Opinion of Counsel stating that the execution of such
amended
or supplemental indenture is authorized or permitted by this Indenture and
that
such amended or supplemental indenture is the legal, valid and binding
obligations of the Company enforceable against it in accordance with its
terms,
subject to customary exceptions and that such amended or supplemental indenture
complies with the provisions hereof (including Section 9.03).
69
SUBSIDIARY
GUARANTEES
Section
7.07. Subsidiary
Guarantee.
Subject
to this Article 10, the Guarantors hereby unconditionally guarantee to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns: (a) the due and punctual payment of the
principal of, premium, if any, and interest on the Notes, subject to any
applicable grace period, whether at Stated Maturity, by acceleration, redemption
or otherwise, the due and punctual payment of interest on the overdue principal
of and premium, if any, and, to the extent permitted by law, interest, and
the
due and punctual performance of all other obligations of the Company to the
Holders or the Trustee under this Indenture and the Notes, all in accordance
with the terms hereof and thereof; and (b) in case of any extension of time
of
payment or renewal of any Notes or any of such other obligations, that same
shall be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at Stated Maturity, by acceleration
pursuant to Section 6.02, redemption or otherwise. Failing payment when due
of
any amount so guaranteed or any performance so guaranteed for whatever reason,
the Guarantors shall be jointly and severally obligated to pay the same
immediately. Each Guarantor agrees that this is a guarantee of payment and
not a
guarantee of collection.
Each
Guarantor hereby agrees that its obligations with regard to its Subsidiary
Guarantee shall be joint and several, unconditional, irrespective of the
validity or enforceability of the Notes or the obligations of the Company
under
this Indenture, the absence of any action to enforce the same, the recovery
of
any judgment against the Company or any other obligor with respect to this
Indenture, the Notes or the Obligations of the Company under this Indenture
or
the Notes, any action to enforce the same or any other circumstances (other
than
complete performance) which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor. Each Guarantor further, to the extent
permitted by law, waives and relinquishes all claims, rights and remedies
accorded by applicable law to guarantors and agrees not to assert or take
advantage of any such claims, rights or remedies, including but not limited
to:
(a) any right to require any of the Trustee, the Holders or the Company (each
a
“Benefited
Party”),
as a
condition of payment or performance by such Guarantor, to (1) proceed against
the Company, any other guarantor (including any other Guarantor) of the
Obligations under the Subsidiary Guarantees or any other Person, (2) proceed
against or exhaust any security held from the Company, any such other guarantor
or any other Person, (3) proceed against or have resort to any balance of
any
deposit account or credit on the books of any Benefited Party in favor of
the
Company or any other Person, or (4) pursue any other remedy in the power
of any
Benefited Party whatsoever; (b) any defense arising by reason of the incapacity,
lack of authority or any disability or other defense of the Company including
any defense based on or arising out of the lack of validity or the
unenforceability of the Obligations under the Subsidiary Guarantees or any
agreement or instrument relating thereto or by reason of the cessation of
the
liability of the Company from any cause other than payment in full of the
Obligations under the Subsidiary Guarantees; (c) any defense based upon any
statute or rule of law which provides that the obligation of a surety must
be
neither larger in amount nor in other respects more burdensome than that
of the
principal; (d) any defense based upon any Benefited Party’s errors or omissions
in the administration of the Obligations under the Subsidiary Guarantees,
except
behavior which amounts to bad faith; (e)(1) any principles or provisions
of law,
statutory or otherwise, which are or might be in conflict with the terms
of the
Subsidiary Guarantees and any legal or equitable discharge of such Guarantor’s
obligations hereunder, (2) the benefit of any statute of limitations affecting
such Guarantor’s liability hereunder or the enforcement hereof, (3) any rights
to set-offs, recoupments and counterclaims and (4) promptness, diligence
and any
requirement that any Benefited Party protect, secure, perfect or insure any
security interest or lien or any property subject thereto; (f) notices, demands,
presentations, protests, notices of protest, notices of dishonor and notices
of
any action or inaction, including acceptance of the Subsidiary Guarantees,
notices of Default under the Notes or any agreement or instrument related
thereto, notices of any renewal, extension or modification of the Obligations
under the Subsidiary Guarantees or any agreement related thereto, and notices
of
any extension of credit to the Company and any right to consent to any thereof;
(g) to the extent permitted under applicable law, the benefits of any “One
Action” rule and (h) any defenses or benefits that may be derived from or
afforded by law which limit the liability of or exonerate guarantors or
sureties, or which may conflict with the terms of the Subsidiary Guarantees.
Except to the extent expressly provided herein, including Sections 8.02,
8.03
and 10.05, each Guarantor hereby covenants that its Subsidiary Guarantee
shall
not be discharged except by complete performance of the obligations contained
in
its Subsidiary Guarantee and this Indenture.
70
If
any
Holder or the Trustee is required by any court or otherwise to return to
the
Company, the Guarantors or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or the Guarantors, any
amount
paid by either to the Trustee or such Holder, this Subsidiary Guarantee,
to the
extent theretofore discharged, shall be reinstated in full force and
effect.
Each
Guarantor agrees that it shall not be entitled to any right of subrogation
in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby. Each Guarantor further
agrees that, as between the Guarantors, on the one hand, and the Holders
and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Section 6.02 hereof for the purposes
of
this Subsidiary Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby and (y) in the event of any declaration of acceleration
of
such obligations as provided in Section 6.02 hereof, such obligations (whether
or not due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of this Subsidiary Guarantee. The Guarantors shall have the
right to seek contribution from any non-paying Guarantor so long as the exercise
of such right does not impair the rights of the Holders under the Subsidiary
Guarantee.
Section
7.08. Limitation
on Guarantor Liability.
(a) Each
Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that
it
is the intention of all such parties that the guarantee of such Guarantor
not
constitute a fraudulent transfer or conveyance for purposes of Bankruptcy
Law,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or
any similar federal or state law to the extent applicable to any guarantee.
To
effectuate the foregoing intention, the Trustee, the Holders and the Guarantors
hereby irrevocably agree that each Guarantor’s liability shall be that amount
from time to time equal to the aggregate liability of such Guarantor under
the
guarantee, but shall be limited to the lesser of (a) the aggregate amount
of the Company’s obligations under the Notes and this Indenture or (b) the
amount, if any, which would not have (1) rendered the Guarantor “insolvent”
(as such term is defined in the Federal Bankruptcy Code and in the Debtor
and
Creditor Law of the State of New York) or (2) left it with unreasonably
small capital at the time its guarantee with respect to the Notes was entered
into, after giving effect to the incurrence of existing Debt immediately
before
such time; provided,
however,
it
shall be a presumption in any lawsuit or proceeding in which a Guarantor
is a
party that the amount guaranteed pursuant to the guarantee with respect to
the
Notes is the amount described in clause (a) above unless any creditor,
or representative of creditors of the Guarantor, or debtor in possession
or
Trustee in bankruptcy of the Guarantor, otherwise proves in a lawsuit that
the
aggregate liability of the Guarantor is limited to the amount described in
clause (b).
(b) In
making
any determination as to the solvency or sufficiency of capital of a Guarantor
in
accordance with the proviso of Section 10.02(a), the right of each Guarantor
to
contribution from other Guarantors and any other rights such Guarantor may
have,
contractual or otherwise, shall be taken into account.
Section
7.09. Execution
and Delivery of Subsidiary Guarantee.
To
evidence its Subsidiary Guarantee set forth in Section 10.01, each Guarantor
hereby agrees that a notation of such Subsidiary Guarantee in substantially
the
form included in Exhibit
E
attached hereto shall be endorsed by an Officer of such Guarantor on each
Note
authenticated and delivered by the Trustee and that this Indenture shall
be
executed on behalf of such Guarantor by its President or one of its Vice
Presidents.
Each
Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section
10.01
shall remain in full force and effect notwithstanding any failure to endorse
on
each Note a notation of such Subsidiary Guarantee.
If
an
Officer whose signature is on this Indenture or on the Subsidiary Guarantee
no
longer holds that office at the time the Trustee authenticates the Note on
which
a Subsidiary Guarantee is endorsed, the Subsidiary Guarantee shall be valid
nevertheless.
The
delivery of any Note by the Trustee, after the authentication thereof hereunder,
shall constitute due delivery of the Subsidiary Guarantee set forth in this
Indenture on behalf of the Guarantors.
71
The
Company hereby agrees that it shall cause each Person that becomes obligated
to
provide a Subsidiary
Guarantee
pursuant to Section 4.19 to execute a supplemental indenture in form and
substance reasonably satisfactory to the Trustee, pursuant to which such
Person
provides the guarantee set forth in this Article 10 and otherwise assumes
the
obligations and accepts the rights of a Guarantor under this Indenture, in
each
case with the same effect and to the same extent as if such Person had been
named herein as a Guarantor. The Company also hereby agrees to cause each
such
new Guarantor to evidence its guarantee by endorsing a notation of such
Subsidiary
Guarantee
on each Note as provided in this Section 10.03.
Section
7.10. Guarantors
May Consolidate, etc., on Certain Terms.
Except
as
otherwise provided in Section 10.05, no Guarantor may consolidate with or
merge
with or into (whether or not such Guarantor is the Surviving Person) another
Person whether or not affiliated with such Guarantor unless:
(a) subject
to Section 10.05, the Person formed by or surviving any such consolidation
or
merger (if other than a Guarantor or the Company) unconditionally assumes
all
the obligations of such Guarantor, pursuant to a supplemental indenture in
form
and substance reasonably satisfactory to the Trustee, under this Indenture
and
any Subsidiary Guarantee on the terms set forth herein; and
(b) the
Guarantor complies with the requirements of Article 5 hereof.
In
case
of any such consolidation, merger, sale or conveyance and upon the assumption
by
the successor Person, by supplemental indenture, executed and delivered to
the
Trustee and satisfactory in form to the Trustee, of the Subsidiary Guarantee
endorsed upon the Notes and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Guarantor,
such successor Person shall succeed to and be substituted for the Guarantor
with
the same effect as if it had been named herein as a Guarantor. Such successor
Person thereupon may cause to be signed any or all of the Subsidiary Guarantees
to be endorsed upon all of the Notes issuable hereunder which theretofore
shall
not have been signed by the Company and delivered to the Trustee. All the
Subsidiary Guarantees so issued shall in all respects have the same legal
rank
and benefit under this Indenture as the Subsidiary Guarantees theretofore
and
thereafter issued in accordance with the terms of this Indenture as though
all
of such Subsidiary Guarantees had been issued at the date of the execution
hereof.
Except
as
set forth in Articles 4 and 5, and notwithstanding clauses (a) and (b) above,
nothing contained in this Indenture or in any of the Notes shall prevent
any
consolidation or merger of a Guarantor with or into the Company or another
Guarantor, or shall prevent any sale or conveyance of the property of a
Guarantor as an entirety or substantially as an entirety to the Company or
another Guarantor.
Section
7.11. Releases
Following Merger, Consolidation or Sale of Assets,
Etc.
In
the
event of a sale or other disposition of all or substantially all of the assets
of any Guarantor, by way of merger, consolidation or otherwise, or a sale
or
other disposition of all of the Capital Stock of any Guarantor, in each case
to
a Person that is not (either before or after giving effect to such transactions)
a Subsidiary of the Company, then such Guarantor (in the event of a sale
or
other disposition, by way of merger, consolidation or otherwise, of all of
the
Capital Stock of such Guarantor) or the corporation acquiring the property
(in
the event of a sale or other disposition of all or substantially all of the
assets of such Guarantor) shall be released and relieved of any obligations
under its Subsidiary Guarantee; provided
that the
net proceeds of such sale or other disposition shall be applied in accordance
with the applicable provisions of this Indenture, including without limitation
Section 4.12. If a Restricted Subsidiary is designated as an Unrestricted
Subsidiary in accordance with the provisions of Section 4.17, such Subsidiary
shall be released and relieved of any obligations under its Subsidiary
Guarantee. Upon delivery by the Company to the Trustee of an Officers’
Certificate and an Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the provisions of
this
Indenture, including without limitation Section 4.12, the Trustee shall execute
any documents reasonably required in order to evidence the release of any
Guarantor from its obligations under its Subsidiary Guarantee.
72
Any
Guarantor not released from its obligations under its Subsidiary Guarantee
shall
remain liable for the full amount of principal of and interest on the Notes
and
for the other obligations of any Guarantor under this Indenture as provided
in
this Article 10.
ARTICLE
8.
SATISFACTION
AND DISCHARGE
Section
8.01. Satisfaction
and Discharge.
This
Indenture shall be discharged and shall cease to be of further effect, except
as
to surviving rights of registration of transfer or exchange of the Notes,
as to
all Notes issued hereunder, when:
(a) either:
(i) all
notes
that have been authenticated, except lost, stolen or destroyed notes that
have
been replaced or paid and notes for whose payment money has been deposited
in
trust and thereafter repaid to the Company, have been delivered to the trustee
for cancellation; or
(ii) all
notes
that have not been delivered to the trustee for cancellation have become
due and
payable by reason of the mailing of a notice of redemption or otherwise or
will
become due and payable within one year, and the Company has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust
solely for the benefit of the Holders, cash in U.S. dollars, non-callable
U.S.
Government Securities, or a combination of cash in U.S. dollars and non-callable
U.S. Government Securities, in such amounts as will be sufficient without
consideration of any reinvestment of interest, to pay and discharge the entire
indebtedness on the Notes not delivered to the Trustee for cancellation for
principal, premium and Additional Interest, if any, and accrued interest
to the
date of maturity or redemption;
(b) no
Default or Event of Default has occurred and is continuing on the date of
the
deposit or will occur as a result of the deposit and the deposit will not
result
in a breach or violation of, or constitute a default under, any other instrument
to which the Company is a party or by which the Company is bound;
(c) the
Company has paid or caused to be paid all sums payable by it under this
Indenture; and
(d) the
Company has delivered irrevocable instructions to the Trustee to apply the
deposited money toward the payment of the Notes at maturity or the redemption
date, as the case may be.
Section
8.02. Deposited
Cash and U.S. Government Securities to be Held in Trust; Other Miscellaneous
Provisions.
Subject
to Section 11.03, all cash and non-callable U.S. Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 11.02, the “Trustee”)
pursuant to Section 11.01 hereof in respect of the outstanding Notes shall
be
held in trust and applied by the Trustee, in accordance with the provisions
of
such Notes and this Indenture, to the payment, either directly or through
any
Paying Agent (including the Company acting as Paying Agent) as the Trustee
may
determine, to the Holders of such Notes of all sums due and to become due
thereon in respect of principal, premium, if any, and interest but such cash
and
securities need not be segregated from other funds except to the extent required
by law.
73
Repayment
to Company.
Any
cash
or non-callable U.S. Government Securities deposited with the Trustee or
any
Paying Agent, or then held by the Company, in trust for the payment of the
principal of, premium, if any, 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 be paid to the Company on its request or (if then held
by
the Company) shall be discharged from such trust; and the Holder shall
thereafter, as an unsecured creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect
to
such cash and securities, and all liability of the Company as trustee thereof,
shall thereupon cease; provided,
however,
that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once,
in
The
New York Times and
The
Wall Street Journal (national
edition), notice that such cash and securities remains unclaimed and that,
after
a date specified therein, which shall not be less than 30 days from the date
of
such notification or publication, any unclaimed balance of such cash and
securities then remaining shall be repaid to the Company.
ARTICLE
9.
MISCELLANEOUS
Section
9.01. Trust
Indenture Act Controls.
If
any
provision of this Indenture limits, qualifies or conflicts with another
provision which is required to be included in this Indenture by the TIA,
the
provision required by the TIA shall control.
Section
9.02. Notices.
Any
notice or communication by the Company or the Trustee to the other is duly
given
if in writing and delivered in person or mailed by first class mail (registered
or certified, return receipt requested), facsimile transmission or overnight
air
courier guaranteeing next-day delivery, to the other’s address:
If
to the
Company:
Centene
Corporation
Centene
Place
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇.
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Chief Financial Officer
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
If
to the
Trustee:
The
Bank
of New York Trust Company, N.A.
▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Administration
Telecopier
No.:(▇▇▇) ▇▇▇-▇▇▇▇
The
Company or the Trustee, by notice to the other, may designate additional
or
different addresses for subsequent notices or communications.
All
notices and communications (other than those sent to the Trustee or Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if sent by facsimile
transmission; and the next Business Day after timely delivery to the courier,
if
sent by overnight air courier guaranteeing next-day
74
delivery.
All notices and communications to the Trustee or Holders shall be deemed
duly
given and effective only upon receipt.
Any
notice or communication to a Holder shall be mailed by first class mail,
certified or registered, return receipt requested, or by overnight air courier
guaranteeing next-day delivery to its address shown on the Security
Register. Any notice or communication shall also be so mailed to any
Person described in TIA § 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it
shall
not affect its sufficiency with respect to other Holders.
If
a
notice or communication is mailed in the manner provided above within the
time
prescribed, it is duly given, whether or not the addressee receives
it.
If
the
Company mails a notice or communication to Holders, it shall mail a copy
to the
Trustee and each Agent at the same time.
Section
9.03. Communication
by Holders of Notes with Other Holders of NotesError!
Bookmark not defined..
Holders
may communicate pursuant to TIA §312(b) with other Holders with respect to their
rights under this Indenture or the Notes. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA §312(c).
Section
9.04. Certificate
and Opinion as to Conditions Precedent.
Upon
any
request or application by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the
Trustee:
(a) an
Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 12.05 hereof)
stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(b) an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 12.05 hereof) stating
that, in the opinion of such counsel, all such conditions precedent and
covenants have been complied with.
Section
9.05. Statements
Required in Certificate or Opinion.
Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant
to
TIA §314(a)(4)) shall comply with the provisions of TIA §314(e) and shall
include:
(a) a
statement that the Person making such certificate or opinion has read such
covenant or condition;
(b) a
brief
statement as to the nature and scope of the examination or investigation
upon
which the statements or opinions contained in such certificate or opinion
are
based;
(c) a
statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable such Person 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 or not, in the opinion of such Person, such condition
or
covenant has been complied with.
75
(e)
With
respect to matters of fact, an Opinion of Counsel may rely on an Officers’
Certificate, certificates of public officials or reports or opinions of
experts.
Section
9.06. Rules
by Trustee and Agents.
The
Trustee may make reasonable rules for action by or at a meeting of Holders.
The
Registrar or Paying Agent may make reasonable rules and set reasonable
requirements for its functions.
Section
9.07. No
Personal Liability of Directors, Officers, Employees and
Stockholders.
No
past,
present or future director, officer, employee, incorporator, stockholder,
member, manager or partner of the Company or any Guarantor, as such, shall
have
any liability for any obligations of the Company or of the Guarantors under
the
Notes, this Indenture, the Subsidiary Guarantees, if any, or for any claim
based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of Notes by accepting a Note waives and releases all such liability.
The
waiver and release are part of the consideration for issuance of the Notes.
The
waiver and release may not be effective to waive or release liabilities under
the federal securities laws.
Section
9.08. Governing
Law.
THE
INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE
THIS
INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
Section
9.09. No
Adverse Interpretation of Other Agreements.
This
Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section
9.10. Successors.
All
covenants and agreements of the Company in this Indenture and the Notes shall
bind its successors. All covenants and agreements of the Trustee in this
Indenture shall bind its successors.
Section
9.11. Severability.
In
case
any provision in this Indenture or in the Notes shall be invalid, illegal
or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section
9.12. Counterpart
Originals.
The
parties may sign any number of copies of this Indenture. Each signed copy
shall be an original, but all of them together represent the same
agreement.
Section
9.13. Table
of Contents, Headings, etc.
The
Table
of Contents, Cross-Reference Table and Headings in this Indenture have been
inserted for convenience of reference only, are not to be considered a part
of
this Indenture and shall in no way modify or restrict any of the terms or
provisions hereof.
76
Qualification
of this Indenture.
The
Company shall qualify this Indenture under the TIA in accordance with the
terms
and conditions of any Registration Rights Agreement and shall pay all reasonable
costs and expenses (including reasonable attorneys’ fees and expenses for the
Company, the Trustee and the Holders) incurred in connection therewith,
including, but not limited to, costs and expenses of qualification of this
Indenture and the Notes and printing this Indenture and the Notes. The Trustee
shall be provided with any such Officers’ Certificates, Opinions of Counsel or
other documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
Section
9.14. Waiver
of Jury Trial.
EACH
OF
THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE
TRANSACTION CONTEMPLATED HEREBY.
Section
9.15. Force
Majeure.
In
no
event shall the Trustee be responsible or liable for any failure or delay
in the
performance of its obligations hereunder arising out of or caused by, directly
or indirectly, forces beyond its control, including, without limitation,
strikes, work stoppages, accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable
efforts which are consistent with accepted practices in the banking industry
to
resume performance as soon as practicable under the circumstances.
[Signatures
on following page]
77
| SIGNATURES | ||
| Company: | ||
| CENTENE CORPORATION | ||
| |
|
|
| Dated as of March 22, 2007 | By: | /s/ J. PER ▇▇▇▇▇▇ |
|
Name: J. PER ▇▇▇▇▇▇ |
||
| Title: Senior Vice President and Chief Financial Officer | ||
| Trustee: | ||
| THE BANK OF NEW YORK TRUST COMPANY, N.A. | ||
| |
|
|
| By: | /s/ ▇. ▇.▇▇▇▇▇▇▇ | |
|
Name: ▇. ▇. ▇▇▇▇▇▇▇ |
||
| Title: Vice President | ||
SIGNATURE
PAGES TO THE SENIOR NOTE INDENTURE
EXHIBIT
A
(Face
of
Note)
7¼%
SENIOR NOTES DUE 2014
CUSIP
_____________
No. _____ $_____________
CENTENE
CORPORATION
promises
to pay to CEDE & CO., INC. or registered assigns, the principal sum of
_________________ Dollars ($______________) on April 1, 2014.
Interest
Payment Dates: April 1 and October 1, commencing [ ],
20[ ].
Record
Dates: March 15 and September 15.
Dated:.
A
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IN
WITNESS WHEREOF, the Company has caused this Note to be signed manually or
by
facsimile by its duly authorized officer.
| CENTENE CORPORATION | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
This
is
one of the [Global]
Notes
referred to in the
within-mentioned
Indenture:
THE
BANK
OF NEW YORK TRUST COMPANY, N.A.
as
Trustee
By: ______________________
Authorized
Signatory
Dated
March__, 2007
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(Back
of
Note)
7¼%
Senior Notes due 2014
[Insert
the Global Note Legend, if applicable, pursuant to the terms of the
Indenture]
[Insert
the Private Placement Legend, if applicable, pursuant to the terms of the
Indenture]
[Insert
the following legend if the Notes are issued with original issue discount:
FOR
PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF
1986,
AS AMENDED, THIS NOTE IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT: FOR EACH
$1,000 PRINCIPAL AMOUNT OF THIS NOTE, THE ISSUE PRICE IS $[ ], THE AMOUNT
OF
ORIGINAL ISSUE DISCOUNT IS $[ ], THE ISSUE DATE IS [ ] AND THE YIELD TO MATURITY
IS [ ]% PER ANNUM.]
Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
1. Interest. Centene
Corporation, a Delaware corporation (the “Company”),
promises to pay interest on the principal amount of this Note at 7¼% per annum
until maturity and shall pay Additional Interest, if any, as provided in
Section
5 of the Registration Rights Agreement. The Company shall pay interest
semi-annually on April 1 and October 1 of each year, or if any such day is
not a
Business Day, on the next succeeding Business Day (each an “Interest
Payment Date”).
Interest shall accrue from the most recent date to which interest has been
paid
on the Notes (or one or more Predecessor Notes) or, if no interest has been
paid, from
[ ].
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if
any,
from time to time at a rate that is 1% per annum in excess of the interest
rate
then in effect under the Indenture and this Note; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy
Law) on
overdue installments of interest and Additional Interest, if any (without
regard
to any applicable grace periods), from time to time at the same rate to the
extent lawful. Interest shall be computed on the basis of a 360-day year
of twelve 30-day months.
2. Method
of Payment.
The Company shall pay interest on the Notes (except defaulted interest) to
the
Persons in whose name this Note (or one or more Predecessor Notes) is registered
at the close of business on the March 15 or September 15 next preceding the
Interest Payment Date, even if such Notes are cancelled after such record
date
and on or before such Interest Payment Date, except as provided in Section
2.12
of the Indenture with respect to defaulted interest. The Notes shall be
payable as to principal, premium, if any, and interest and Additional Interest,
if any, at the office or agency of the Company maintained for such purpose,
or,
at the option of the Company, payment of interest may be made by check mailed
to
the Holders at their addresses set forth in the Security Register; provided,
however,
that
payment by wire transfer of immediately available funds shall be required
with
respect to principal of and interest and Additional Interest, if any, and
premium, if any, on, all Global Notes and all other Notes the Holders of
which
shall have provided wire transfer instructions to the Company or the Paying
Agent. Such payment shall be in such coin or currency of the United States
of
America as at the time of payment is legal tender for payment of public and
private debts.
3. Paying
Agent and Registrar. Initially,
The Bank of New York Trust Company, N.A., the Trustee under the Indenture,
shall
act as Paying Agent and Registrar. The Company may change any Paying Agent
or Registrar without notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.
4. Indenture.
The
Company issued the Notes under an Indenture dated as of March 22, 2007
(“Indenture”)
between the Company and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference
to the
Trust Indenture Act of 1939, as amended (15 U.S.
Code §§ 77aaa-77bbbb). The Notes are subject to all such terms,
and Holders are referred to the Indenture and such Act for a statement of
such
terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern
and be
controlling. The Notes are obligations of the Company unlimited in aggregate
principal amount.
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5. Optional
Redemption.
(a) Except
as
set forth in clauses (b) and (c) of this paragraph 5, the Notes shall not
be
redeemable at the option of the Company prior to April 1, 2011. Beginning
on
April 1, 2011, the Company may redeem all or a portion of the Notes, at once
or
over time, after giving the notice required pursuant to Section 3.03 of the
Indenture, at the redemption prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest and Additional
Interest on the Notes redeemed, to the applicable redemption date (subject
to
the right of Holders of record on the relevant Regular Record Date to receive
interest due on the relevant Interest Payment Date), if redeemed during the
twelve-month period commencing on April 1 of the years indicated
below:
Year Percentage
2011 103.625%
2012 101.813%
2013
and
thereafter
100.000%
(b) At
any
time prior to April 1, 2011, the Company may redeem all or any portion of
the
Notes, at once or over time, after giving the notice required pursuant to
Section 3.03 of the Indenture, at a redemption price equal to the greater
of:
(i) 100%
of
the principal amount of the Notes to be redeemed; and
(ii) the
sum
of the present values of (1) the redemption price of the Notes at April 1,
2011
(as set forth above) and (2) the remaining scheduled payments of interest
from
the redemption date through April 1, 2011, but excluding accrued and unpaid
interest to the redemption date, discounted to the redemption date (assuming
a
360 day year consisting of twelve 30 day months) at the Treasury Yield
(determined on the second Business Day immediately preceding the redemption
date) plus 50 basis points;
plus,
in
either case, accrued and unpaid interest, to the redemption date (subject
to the
right of Holders of record on the relevant Regular Record Date to receive
interest due on the relevant Interest Payment Date).
(c) At
any
time and from time to time prior to April 1, 2010, the Company may on one
or
more occasions redeem up to 35% of the aggregate principal amount of the
Notes
(including Additional Notes) issued under the Indenture at a redemption price
(expressed as a percentage of principal amount) equal to 107.250% of the
principal amount thereof, plus accrued and unpaid interest and Additional
Interest to the redemption date (subject to the right of Holders of record
on
the relevant Regular Record Date to receive interest due on the relevant
Interest Payment Date) with the net cash proceeds of any Equity Offerings
by the
Company; provided,
however,
that
(i) at least 65% of the aggregate principal amount of the Notes initially
issued
under the Indenture (excluding Notes held by the Company and its Subsidiaries)
remains outstanding immediately after giving effect to such redemption and
(ii)
any such redemption shall be made within 90 days of such Equity
Offering.
6. Mandatory
Redemption.
Except
as set forth in Sections 4.12 and 4.17 of the Indenture, the Company shall
not
be required to make mandatory redemption or sinking fund payments with respect
to the Notes.
7. Repurchase
at Option of Holder.
(a)
Upon the
occurrence of a Change of Control, each Holder shall have the right to require
the Company to repurchase all or any part (equal to $1,000 or an integral
multiple of $1,000) of such Holder’s Notes (a “Change
of Control Offer”)
at a
purchase price in cash equal to 101% of the aggregate principal amount of
the
Notes repurchased, plus accrued and unpaid interest and Additional Interest,
if
any, on the Notes repurchased to the purchase date (subject to the right
of
Holders of record on the relevant record date to receive interest to, but
excluding, the Change of Control Payment Date).
(b)
If the
Company or one of its Restricted Subsidiaries consummates any Asset Sales,
they
shall not be required to apply any Net Available Cash in accordance with
the
Indenture until the aggregate Excess Proceeds from
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all
Asset
Sales following the date the Notes are first issued exceeds $10.0 million.
Thereafter, the Company shall, after application of the additional aggregate
$10.0 million of Excess Proceeds as provided in Section 4.12 of the Indenture,
commence an offer for Notes pursuant to the Indenture by applying the Excess
Proceeds (an “Asset
Sale Offer”)
pursuant to Section 4.12 of the Indenture to purchase the maximum principal
amount of Notes (including any Additional Notes) that may be purchased out
of
the Excess Proceeds at an offer price in cash equal to 100% of the principal
amount thereof plus accrued and unpaid interest and Additional Interest,
if any,
to the date fixed for the closing of such offer in accordance with the
procedures set forth in the Indenture. To the extent that the aggregate amount
of Notes tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company (or such Restricted Subsidiary) may use such deficiency
for any purpose not prohibited by the Indenture. If the aggregate principal
amount of Notes and other pari
passu
indebtedness surrendered by Holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes to be purchased on a pro
rata
basis.
Holders of Notes that are the subject of an offer to purchase will receive
an
Asset Sale Offer from the Company prior to any related purchase date and
may
elect to have such Notes purchased by completing the form entitled “Option of
Holder to Elect Purchase” on the reverse of the Notes.
8. Notice
of Redemption.
Notice of redemption shall be mailed at least 30 days but not more than 60
days
before the redemption date to each Holder whose Notes are to be redeemed
at its
registered address. Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000, unless all of the
Notes
held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for
redemption.
9. Denominations,
Transfer, Exchange.
The Notes are in registered form without coupons in denominations of $1,000
and
integral multiples of $1,000. This Note shall represent the aggregate
principal amount of outstanding Notes from time to time endorsed hereon and
the
aggregate principal amount of Notes represented hereby may from time to time
be
reduced or increased, as appropriate, to reflect exchanges and redemptions.
The
transfer of Notes may be registered and Notes may be exchanged as provided
in
the Indenture. The Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents
and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except
for
the unredeemed portion of any Note being redeemed in part. Also, the
Company need not exchange or register the transfer of any Notes for a period
of
15 days before a selection of Notes to be redeemed or during the period between
a record date and the corresponding Interest Payment Date.
10. Persons
Deemed Owners.
The registered Holder of a Note may be treated as its owner for all
purposes.
11. Amendment,
Supplement and Waiver.
Subject to certain exceptions, the Company and the Trustee may amend or
supplement the Indenture or the Notes with the consent of the Holders of
a
majority in principal amount of the then outstanding Notes, including Additional
Notes, if any, voting as a single class (including consents obtained in
connection with a purchase of or tender offer or exchange offer for the Notes),
and, subject to Sections 6.04 and 6.07 of the Indenture, any existing Default
or
Event of Default (except a continuing Default or Event of Default in the
payment
of principal, premium, if any, interest or Additional Interest, if any, on
the
Notes) or compliance with any provision of the Indenture or the Notes (except
for certain covenants and provisions of the Indenture which cannot be amended
without the consent of each Holder) may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Notes,
including Additional Notes, if any, then outstanding voting as a single class
(including consents obtained in connection with a purchase of or tender offer
or
exchange offer for the Notes). Without the consent of any Holder, the Company
and the Trustee may amend or supplement the Indenture or the Notes to cure
any
ambiguity, defect or inconsistency; to provide for uncertificated notes in
addition to or in place of certificated notes; to provide for the assumption
of
the Company’s obligations to holders of notes in the case of a merger or
consolidation or sale of all or substantially all of the Company’s assets; to
make any change that would provide any additional rights or benefits to the
holders of notes or that does not adversely affect the legal rights under
the
Indenture of any such Holder; to provide for or confirm the issuance of
additional notes otherwise permitted to be incurred by the Indenture; or
to
comply with the requirements of the Commission in order to effect or maintain
the qualification of the Indenture under the TIA.
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12. Defaults
and Remedies.
Each of the following is an Event of Default under the Indenture: (a) failure
to
make the payment of any interest or Additional Interest on the Notes when
the
same becomes due and payable, and such failure continues for a period of
30
days; (b) failure to make the payment of any principal of, or premium, if
any,
on, any of the Notes when the same becomes due and payable at its Stated
Maturity, upon acceleration, redemption, optional redemption, required
repurchase or otherwise; (c) failure to comply with Section 5.01 of the
Indenture; (d) failure by the Company or any of its Restricted Subsidiaries
for
30 days after notice to comply with the provisions described under Sections
4.09, 4.10, 4.12 and 4.17 of the Indenture; (e) failure by the Company for
120
days after notice to comply with the provisions described under Section 4.03
of
the Indenture; (f) failure by the Company or any of its Restricted Subsidiaries
for 60 days after notice to comply with any of its other agreements in the
Indenture or the Notes; default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any
of its
Restricted Subsidiaries whether such Indebtedness or Guarantee now exists,
or is
created after the Issue Date, if that default: (a) is caused by a failure
to pay
principal of, or interest or premium, if any, on such Indebtedness prior
to the
expiration of the grace period provided in such Indebtedness on the date
of such
default (a “Payment Default”); or (b) results in the acceleration of such
Indebtedness prior to its express maturity, and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any
other
such Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $15.0 million or more; (g) failure
by the Company or any of its Restricted Subsidiaries to pay final
non-appealable judgments entered by a court or courts of competent jurisdiction
aggregating
in excess of $15.0 million, which judgments are not paid, discharged or stayed
for a period of 60 days; certain events of bankruptcy, insolvency or
reorganization affecting the Company or any of its Significant Subsidiaries;
If
any
Event of Default occurs and is continuing, the Trustee or the Holders of
at
least 25% in principal amount of the then outstanding Notes may declare all
the
Notes to be due and payable. Notwithstanding the foregoing, in the case of
an
Event of Default arising from certain events of bankruptcy or insolvency
described in the Indenture, all outstanding Notes shall become due and payable
without further action or notice. Holders may not enforce the Indenture or
the
Notes except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal
or
interest or Additional Interest) if it determines that withholding notice
is in
their interest. The Holders of a majority in aggregate principal amount of
the
Notes then outstanding by notice to the Trustee may on behalf of the Holders
of
all of the Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of
Default
in the payment of interest or Additional Interest on, or the principal of,
the
Notes. The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required upon
becoming aware of any Default or Event of Default, to deliver to the Trustee
a
statement specifying such Default or Event of Default.
13. Trustee
Dealings with Company.
Subject
to certain limitations, the Trustee in its individual or any other capacity
may
become the owner or pledgee of Notes and may otherwise deal with the Company
or
any Affiliate of the Company with the same rights it would have if it were
not
Trustee.
14. No
Recourse Against Others.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company or of any Guarantor, as such, shall have any
liability for any obligations of the Company or any Guarantor under the
Indenture, the Notes, the Subsidiary Guarantees 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.
15. Authentication.
This Note shall not be valid until authenticated by the manual signature
of the
Trustee or an authenticating agent.
16. 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).
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17. Additional
Rights of Holders of Restricted Global Notes and Restricted Definitive
Notes.
In
addition to the rights provided to Holders of Notes under the Indenture,
Holders
of Restricted Global Notes and Restricted Definitive Notes that are Initial
Notes shall have all the rights set forth in the Registration Rights Agreement,
dated as of March
22,
2007,
between the Company and the parties named on the signature pages thereto
or, in
the case of Additional Notes, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have the rights set forth in one or more Registration
Rights Agreement, if any, among the Company and the other parties thereto,
relating to rights given by the Company to the purchasers of any Additional
Notes.
18. CUSIP
Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Company has caused CUSIP numbers to be printed
on
the Notes and has directed the Trustee to use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in
any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
19. Governing
Law.
The
internal law of the State of New York shall govern and be used to construe
this
Note without giving effect to applicable principals of conflicts of law to
the
extent that the application of the laws of another jurisdiction would be
required thereby.
The
Company shall furnish to any Holder upon written request and without charge
a
copy of the Indenture. Requests may be made to:
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Option
of
Holder to Elect Purchase
If
you
want to elect to have this Note purchased by the Company pursuant to Section
4.12 or 4.17 of the Indenture, check the box below:
£
Section 4.12
£
Section
4.17
If
you
want to elect to have only part of the Note purchased by the Company pursuant
to
Section 4.12 or Section 4.17 of the Indenture, state the amount you elect
to
have purchased: $_____________________
Date:_______________________________ Your
Signature:________________________________
(Sign
exactly as your name appears on the Note)
Tax
Identification No.: ____________________________________________
SIGNATURE
GUARANTEE:
________________________________________
Signatures
must be guaranteed by an “eligible guarantor institution” meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program (“STAMP”) or such
other “signature guarantee program” as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A
-
8
Assignment
Form
To
assign
this Note, fill in the form below:
(I)
or
(we) assign and transfer this Note to
(Insert
assignee’s social security or other tax I.D. no.)
(Print
or
type assignee’s name, address and zip code)
and
irrevocably appoint
_________________________________________________________________
as
agent
to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
___________________________________________________________________________________
Date:
______________
Your
Signature: ___________________________________
(Sign
exactly as your name appears on the face of this Note)
Signature
Guarantee: ______________________________
A
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9
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The
following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global
Note or Definitive Note for an interest in this Global Note, have been
made:
|
Date
of Exchange
|
Amount
of
decrease
in
Principal
Amount
of
this Global Note
|
Amount
of increase
in
Principal Amount
of
this Global Note
|
Principal
Amount
of
this Global Note
following
such
decrease
(or
increase)
|
Signature
of
authorized
signatory
of
Trustee or
Note
Custodian
|
EXHIBIT
B
FORM
OF CERTIFICATE OF TRANSFER
Centene
Corporation
Centene
Place
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇.
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Chief Financial Officer
The
Bank
of New York Trust Company, N.A.
▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Administration
Telecopier
No.:(▇▇▇) ▇▇▇-▇▇▇▇
Re: 7¼%
Senior Notes due 2014
Reference
is hereby made to the Indenture, dated as of March 22, 2007 (the “Indenture”),
among
Centene Corporation, as issuer (the “Company”),
the
Guarantors party thereto and The Bank of New York Trust Company, N.A., as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
___________________,
(the “Transferor”)
owns
and proposes to transfer the Note[s] or interest in such Note[s] specified
in
Annex A hereto, in the principal amount of $___________ in such Note[s] or
interests (the “Transfer”),
to
___________________________ (the “Transferee”),
as
further specified in Annex A hereto. In connection with the Transfer, the
Transferor hereby certifies that:
[CHECK
ALL THAT APPLY]
1.
£
Check
if Transferee will take delivery of a beneficial interest in the 144A Global
Note or a Definitive Note Pursuant to Rule 144A.
The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the “Securities
Act”),
and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect
to
which such Person exercises sole investment discretion, and such Person and
each
such account is a “qualified institutional buyer” within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer
is
in compliance with any applicable blue sky securities laws of any state of
the
United States. Upon consummation of the proposed Transfer in accordance with
the
terms of the Indenture, the transferred beneficial interest or Definitive
Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Definitive Note
and
in the Indenture and the Securities Act.
2. £
Check
if Transferee will take delivery of a beneficial interest in the Regulation
S
Global Note or a Definitive Note pursuant to Regulation
S.
The
Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a Person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its
behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities
of a
designated offshore securities market and neither such Transferor nor any
Person
acting on its behalf knows that the transaction was prearranged with a buyer
in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(a) of Regulation
S
under the Securities Act, (iii) the transaction is not part of a plan or
scheme
to evade the registration requirements of the Securities Act and (iv) if
the
proposed transfer is being made prior to the expiration of the
B
-
1
Distribution
Compliance Period, the transfer is not being made to a U.S. Person or for
the
account or benefit of a U.S. Person (other than an Initial Purchaser). Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Global Note, the Regulation S Temporary
Global Note and/or the Definitive Note and in the Indenture and the Securities
Act.
3. £
Check
and complete if Transferee will take delivery of a beneficial interest in
the
IAI Global Note or a Definitive Note pursuant to any provision of the Securities
Act other than Rule 144A or Regulation S.
The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act
and
any applicable blue sky securities laws of any state of the United States,
and
accordingly the Transferor hereby further certifies that (check
one):
(a) £
such
Transfer is being effected
pursuant to and in accordance with Rule 144 under the Securities
Act;
or
(b) £
such
Transfer is being effected to the
Company or a subsidiary thereof;
or
(c) £
such
Transfer is being effected
pursuant to an effective registration statement under the Securities Act
and in
compliance with the prospectus delivery requirements of the Securities
Act;
or
(d) £
such
Transfer is being effected to an
Institutional Accredited Investor and pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A, Rule
144
or Rule 904, and the Transferor hereby further certifies that it has not
engaged
in any general solicitation within the meaning of Regulation D under the
Securities Act and the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Restricted Global Note or Restricted
Definitive Notes and the requirements of the exemption claimed, which
certification is supported by (1) a certificate executed by the Transferee
in
the form of Exhibit D to the Indenture and (2) if such Transfer is in respect
of
a principal amount of Notes at the time of transfer of less than $250,000,
an
Opinion of Counsel provided by the Transferor or the Transferee (a copy of
which
the Transferor has attached to this certification), to the effect that such
Transfer is in compliance with the Securities Act. Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions
on
transfer enumerated in the Private Placement Legend printed on the IAI Global
Note and/or the Definitive Notes and in the Indenture and the Securities
Act.
B
-
2
4. £
Check
if Transferee will take delivery
of a beneficial interest in an Unrestricted Global Note or of an Unrestricted
Definitive Note.
(a) £
Check
if Transfer is pursuant to Rule 144.
(i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under
the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the
United
States and (ii) the restrictions on transfer contained in the Indenture and
the
Private Placement Legend are not required in order to maintain compliance
with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) £
Check
if Transfer is Pursuant to Regulation S.
(i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of
any
state of the United States and (ii) the restrictions on transfer contained
in
the Indenture and the Private Placement Legend are not required in order
to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed
on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) £
Check
if Transfer is Pursuant to Other Exemption.
(i) The
Transfer is being effected pursuant to and in compliance with an exemption
from
the registration requirements of the Securities Act other than Rule 144,
Rule
903 or Rule 904 and in compliance with the transfer restrictions contained
in
the Indenture and any applicable blue sky securities laws of any State of
the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This
certificate and the statements contained herein are made for your benefit
and
the benefit of the Company.
________________________________________
[Insert
Name of
Transferor]
By:
________________________________________
Name:
Title:
Dated:
______________________
B
-
3
ANNEX
A
TO CERTIFICATE OF TRANSFER
1. The
Transferor owns and proposes to transfer the following:
[CHECK
ONE OF (a) OR (b)]
(a) £
a
beneficial interest in
the:
(i) £
144A
Global Note (CUSIP _________),
or
(ii)
£ Regulation S Global Note (CUSIP
_________), or
(iii) £
IAI
Global Note (CUSIP _________);
or
(b) £
a
Restricted Definitive
Note.
2. After
the
Transfer the Transferee will hold:
[CHECK
ONE OF (a), (b) OR (c)]
(a) £
a
beneficial interest in
the:
(i) £
144A
Global Note (CUSIP _________),
or
(ii) £
Regulation
S Global Note (CUSIP
_________), or
(iii)
£
IAI
Global Note (CUSIP _________); or
(iv) £
Unrestricted
Global Note (CUSIP
_________); or
(b) £
a
Restricted Definitive Note;
or
(c) £
an
Unrestricted Definitive
Note,
in
accordance with the terms of the Indenture.
B
-
4
EXHIBIT
C
FORM
OF CERTIFICATE OF EXCHANGE
Centene
Corporation
Centene
Place
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇.
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Chief Financial Officer
The
Bank
of New York Trust Company, N.A.
▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Administration
Telecopier
No.:(▇▇▇) ▇▇▇-▇▇▇▇
Re: 7¼%
Senior Notes due 2014
Reference
is hereby made to the Indenture, dated as of March 22, 2007 (the “Indenture”),
among
Centene Corporation, as issuer (the “Company”),
the
Guarantors party thereto and The Bank of New York Trust Company, N.A., as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
__________________________,
(the “Owner”)
owns
and proposes to exchange the Note[s] or interest in such Note[s] specified
herein, in the principal amount of $____________ in such Note[s] or interests
(the “Exchange”).
In
connection with the Exchange, the Owner hereby certifies that:
1. Exchange
of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an
Unrestricted Global Note
(a) £ Check
if Exchange is from beneficial interest in a Restricted Global Note to
beneficial interest in an Unrestricted Global Note.
In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an
equal
principal amount, the Owner hereby certifies (i) the beneficial interest
is
being acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable
to the
Restricted Global Note and pursuant to and in accordance with the United
States
Securities Act of 1933, as amended (the “Securities
Act”),
(iii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest in an Unrestricted Global
Note
is being acquired in compliance with any applicable blue sky securities laws
of
any state of the United States.
(b) £
Check
if Exchange is from
beneficial interest in a Restricted Global Note to Unrestricted Definitive
Note.
In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for an Unrestricted Definitive Note, the Owner hereby certifies
(i)
the Unrestricted Definitive Note is being acquired for the Owner’s own account
without transfer, (ii) such Exchange has been effected in compliance with
the
transfer restrictions applicable to the Restricted Global Note and pursuant
to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required
in
order to maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Note is being acquired in compliance with any applicable blue
sky
securities laws of any state of the United States.
(c) £
Check
if Exchange is from
Restricted Definitive Note to beneficial interest in an Unrestricted Global
Note.
In
connection with the Owner’s Exchange of a Restricted Definitive Note for a
beneficial interest in an Unrestricted Global Note, the Owner hereby certifies
(i) the beneficial interest is being acquired for the Owner’s own account
without transfer, (ii) such Exchange has been effected in compliance with
the
transfer restrictions applicable to Restricted Definitive Notes and pursuant
to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required
in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
(d) £
Check
if Exchange is from Restricted Definitive Note to Unrestricted Definitive
Note.
In
connection with the Owner’s Exchange of a Restricted Definitive Note for an
Unrestricted Definitive Note, the
C
-
1
Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired for
the
Owner’s own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Restricted Definitive
Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance
with
any applicable blue sky securities laws of any state of the United
States.
2. Exchange
of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted
Global Notes
(a) £
Check
if Exchange is from
beneficial interest in a Restricted Global Note to Restricted Definitive
Note.
In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for a Restricted Definitive Note with an equal principal amount,
the
Owner hereby certifies that the Restricted Definitive Note is being acquired
for
the Owner’s own account without transfer. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the Restricted
Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Definitive Note and in the Indenture and the Securities Act.
(b) £
Check
if Exchange is from Restricted Definitive Note to beneficial interest in
a
Restricted Global Note.
In
connection with the Exchange of the Owner’s Restricted Definitive Note for a
beneficial interest in the [CIRCLE ONE] 144A Global Note, Regulation S Global
Note, IAI Global Note with an equal principal amount, the Owner hereby certifies
(i) the beneficial interest is being acquired for the Owner’s own account
without transfer and (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Definitive Note
and
pursuant to and in accordance with the Securities Act, and in compliance
with
any applicable blue sky securities laws of any state of the United States.
Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions
on
transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Note and in the Indenture and the Securities Act.
C
-
2
This
certificate and the statements contained herein are made for your benefit
and
the benefit of the Company.
_____________________________________
[Insert
Name of Transferor]
By:
_______________________
Name:
Title:
Dated:
______________________
C
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3
EXHIBIT
D
FORM
OF CERTIFICATE FROM
ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
Centene
Corporation
Centene
Place
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇.
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Chief Financial Officer
The
Bank
of New York Trust Company, N.A.
▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Administration
Telecopier
No.:(▇▇▇) ▇▇▇-▇▇▇▇
Re: 7¼%
Senior Notes due 2014
Reference
is hereby made to the Indenture, dated as of March 22, 2007 (the “Indenture”),
among
Centene Corporation, as issuer (the “Company”),
the
Guarantors party thereto and The Bank of New York Trust Company, N.A., as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
In
connection with our proposed purchase of $____________ aggregate principal
amount of:
(a) £
a
beneficial interest in a Global
Note, or
(b) £
a
Definitive Note,
we
confirm that:
1. We
understand that any subsequent transfer of the Notes or any interest therein
is
subject to certain restrictions and conditions set forth in the Indenture
and
the undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes or any interest therein except in compliance with, such
restrictions and conditions and the United States Securities Act of 1933,
as
amended (the “Securities
Act”).
2. We
understand that the offer and sale of the Notes have not been registered
under
the Securities Act, and that the Notes and any interest therein may not be
offered or sold except as permitted in the following sentence. We agree,
on our
own behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell the Notes or any interest therein, we will
do so
only (A) to the Company or any subsidiary thereof, (B) in accordance
with Rule 144A under the Securities Act to a “qualified institutional buyer” (as
defined therein), (C) to an institutional “accredited investor” (as defined
below) that, prior to such transfer, furnishes (or has furnished on its behalf
by a U.S. broker-dealer) to you and to the Company a signed letter substantially
in the form of this letter and, if such transfer is in respect of a principal
amount of Notes, at the time of transfer of less than $250,000, an Opinion
of
Counsel in form reasonably acceptable to the Company to the effect that such
transfer is in compliance with the Securities Act, (D) outside the United
States in accordance with Rule 904 of Regulation S under the Securities Act,
(E) pursuant to the provisions of Rule 144(k) under the Securities Act or
(F) pursuant to an effective registration statement under the Securities
Act, and we further agree to provide to any Person purchasing the Definitive
Note or beneficial interest in a Global Note from us in a transaction meeting
the requirements of clauses (A) through (E) of this paragraph a notice advising
such purchaser that resales thereof are restricted as stated
herein.
3. We
understand that, on any proposed resale of the Notes or beneficial interest
therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company
may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear
a
legend to the foregoing effect.
4. We
are an
institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have such knowledge and
experience in financial and business matters as to be capable of evaluating
the
merits and risks of our investment in the Notes, and we and any accounts
for
D
-
1
which
we
are acting are each able to bear the economic risk of our or its investment.
We
have had access to such financial and other information and have been afforded
the opportunity to ask such questions of representatives of the Company and
receive answers thereto, as we deem necessary in connection with our decision
to
purchase the Notes.
5. We
are
acquiring the Notes or beneficial interest therein purchased by us for our
own
account or for one or more accounts (each of which is an institutional
“accredited investor”) as to each of which we exercise sole investment
discretion and are not acquiring the Notes with a view to any distribution
thereof in a transaction that would violate the Securities Act of the securities
laws of any state of the United States or any other applicable
jurisdiction.
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. This letter shall be governed by, and construed in
accordance with, the laws of the State of New York.
________________________________________________
[Insert
Name of Accredited Investor]
By:
_______________________
Name:
Title:
Dated:
______________________
D
-
2
EXHIBIT
E
FORM
OF NOTATION OF GUARANTEE
For
value
received, each Guarantor (which term includes any successor Person under
the
Indenture), jointly and severally, unconditionally guarantees, to the extent
set
forth in the Indenture and subject to the provisions in the Indenture, dated
as
of March 22,, 2007 (the “Indenture”),
among
Centene Corporation, as issuer (the “Company”),
the
Guarantors listed on the signature pages thereto and The Bank of New York
Trust
Company, N.A., as trustee (the “Trustee”),
(a)
the due and punctual payment of the principal of, premium, if any, and interest
and Additional Interest, if any, on the Notes, whether at maturity, by
acceleration, redemption or otherwise, the due and punctual payment of interest
on overdue principal and premium, if any, and, to the extent permitted by
law,
interest and Additional Interest, if any, and the due and punctual performance
of all other obligations of the Company to the Holders or the Trustee all
in
accordance with the terms of the Indenture and (b) in case of any extension
of
time of payment or renewal of any Notes or any of such other obligations,
that
the same will be promptly paid in full when due or performed in accordance
with
the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. The obligations of the Guarantors to the Holders
of
Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture
are expressly set forth in Article 10 of the Indenture and reference is hereby
made to the Indenture for the precise terms of the Guarantee. This Subsidiary
Guarantee is subject to release as and to the extent set forth in Sections
8.02,
8.03 and 10.05 of the Indenture. Each Holder of a Note, by accepting the
same
agrees to and shall be bound by such provisions. Capitalized terms used herein
and not defined are used herein as so defined in the Indenture.
[NAME
OF
GUARANTORS]
By:__________________________
Name:
Title:
|
TABLE
OF CONTENTS
|
||
|
Page
|
||
|
DEFINITIONS
AND INCORPORATION BY REFERENCE
|
1
|
|
|
Definitions
|
1
|
|
|
Section
1.02.
|
Other
Definitions
|
18
|
|
Section
1.03.
|
Incorporation
by Reference of Trust Indenture Act
|
19
|
|
Section
1.04.
|
Rules
of Construction
|
19
|
|
ARTICLE
2.
|
THE
NOTES
|
20
|
|
Section
2.01.
|
Form
and Dating
|
20
|
|
Section
2.02.
|
Execution
and Authentication
|
21
|
|
Section
2.03.
|
Registrar
and Paying Agent
|
21
|
|
Section
2.04.
|
Paying
Agent to Hold Money in Trust
|
22
|
|
Section
2.05.
|
Holder
Lists
|
22
|
|
Section
2.06.
|
Transfer
and Exchange
|
22
|
|
Section
2.07.
|
Replacement
Notes
|
33
|
|
Section
2.08.
|
Outstanding
Notes
|
33
|
|
Section
2.09.
|
Treasury
Notes
|
34
|
|
Section
2.10.
|
Temporary
Notes
|
34
|
|
Section
2.11.
|
Cancellation
|
34
|
|
Section
2.12.
|
Payment
of Interest; Defaulted Interest.
|
34
|
|
Section
2.13.
|
CUSIP
or ISIN Numbers
|
34
|
|
Section
2.14.
|
Additional
Interest
|
35
|
|
Section
2.15.
|
Additional
Notes
|
35
|
|
Section
2.16.
|
Record
Date
|
35
|
|
ARTICLE
3.
|
REDEMPTION
AND PREPAYMENT
|
35
|
|
Section
3.01.
|
Notices
to Trustee
|
35
|
|
Section
3.02.
|
Selection
of Notes to Be Redeemed
|
36
|
|
Section
3.03.
|
Notice
of Redemption
|
36
|
|
Section
3.04.
|
Effect
of Notice of Redemption
|
37
|
|
Section
3.05.
|
Deposit
of Redemption Price
|
37
|
|
Section
3.06.
|
Notes
Redeemed in Part
|
37
|
|
Section
3.07.
|
Optional
Redemption
|
37
|
|
Section
3.08.
|
Mandatory
Redemption
|
38
|
|
Section
3.09.
|
Offer
To Purchase.
|
38
|
|
ARTICLE
4.
|
COVENANTS
|
40
|
|
Section
4.01.
|
Payment
of Notes
|
40
|
i
|
TABLE
OF CONTENTS
|
||
|
Page
|
||
|
Maintenance
of Office or Agency
|
41
|
|
|
Section
4.03.
|
Reports
|
41
|
|
Section
4.04.
|
Compliance
Certificate
|
42
|
|
Section
4.05.
|
Taxes
|
42
|
|
Section
4.06.
|
Stay,
Extension and Usury Laws
|
42
|
|
Section
4.07.
|
Corporate
Existence
|
43
|
|
Section
4.08.
|
Payments
for Consent
|
43
|
|
Section
4.09.
|
Incurrence
of Additional Debt and Issuance of Preferred Stock.
|
43
|
|
Section
4.10.
|
Restricted
Payments
|
45
|
|
Section
4.11.
|
Liens
|
47
|
|
Section
4.12.
|
Asset
Sales
|
48
|
|
Section
4.13.
|
Restrictions
on Distributions from Restricted Subsidiaries
|
49
|
|
Section
4.14.
|
Affiliate
Transactions
|
50
|
|
Section
4.15.
|
Sale
and Leaseback Transactions
|
51
|
|
Section
4.16.
|
Designation
of Restricted and Unrestricted Subsidiaries
|
51
|
|
Section
4.17.
|
Repurchase
at the Option of Holders Upon a Change of Control
|
52
|
|
Section
4.18.
|
Business
Activities
|
52
|
|
Section
4.19.
|
Limitations
on Issuances of Guarantees of Indebtedness
|
52
|
|
Section
4.20.
|
:
Covenant Termination
|
53
|
|
ARTICLE
5.
|
SUCCESSORS
|
54
|
|
Section
5.01.
|
Merger,
Consolidation and Sale of Assets
|
54
|
|
Section
5.02.
|
Successor
Corporation Substituted
|
55
|
|
ARTICLE
6.
|
DEFAULTS
AND REMEDIES
|
55
|
|
Section
6.01.
|
Events
of Default
|
55
|
|
Section
6.02.
|
Acceleration
|
56
|
|
Section
6.03.
|
Other
Remedies
|
57
|
|
Section
6.04.
|
Waiver
of Defaults
|
57
|
|
Section
6.05.
|
Control
by Majority
|
57
|
|
Section
6.06.
|
Limitation
on Suits
|
57
|
|
Section
6.07.
|
Rights
of Holders to Receive Payment
|
58
|
|
Section
6.08.
|
Collection
Suit by Trustee
|
58
|
|
Section
6.09.
|
Trustee
May File Proofs of Claim
|
58
|
|
Section
6.10.
|
Priorities
|
58
|
ii
|
TABLE
OF CONTENTS
|
||
|
Page
|
||
|
Undertaking
for Costs
|
59
|
|
|
ARTICLE
7.
|
TRUSTEE
|
59
|
|
Section
7.01.
|
Duties
of Trustee
|
59
|
|
Section
7.02.
|
Rights
of Trustee
|
60
|
|
Section
7.03.
|
Individual
Rights of Trustee
|
61
|
|
Section
7.04.
|
Trustee’s
Disclaimer
|
61
|
|
Section
7.05.
|
Notice
of Defaults
|
61
|
|
Section
7.06.
|
Reports
by Trustee to Holders
|
61
|
|
Section
7.07.
|
Compensation
and Indemnity
|
61
|
|
Section
7.08.
|
Replacement
of Trustee
|
62
|
|
Section
7.09.
|
Successor
Trustee by Merger, etc.
|
63
|
|
Section
7.10.
|
Eligibility;
Disqualification
|
63
|
|
Section
7.11.
|
Preferential
Collection of Claims Against Company
|
63
|
|
ARTICLE
8.
|
LEGAL
DEFEASANCE AND COVENANT DEFEASANCE
|
63
|
|
Section
8.01.
|
Option
to Effect Legal Defeasance or Covenant Defeasance
|
63
|
|
Section
8.02.
|
Legal
Defeasance and Discharge
|
64
|
|
Section
8.03.
|
Covenant
Defeasance
|
64
|
|
Section
8.04.
|
Conditions
to Legal or Covenant Defeasance
|
64
|
|
Section
8.05.
|
Deposited
Cash and U.S. Government Securities to be Held in Trust; Other
Miscellaneous Provisions
|
65
|
|
Section
8.06.
|
Repayment
to Company
|
66
|
|
Section
8.07.
|
Reinstatement
|
66
|
|
ARTICLE
9.
|
AMENDMENT,
SUPPLEMENT AND WAIVER
|
66
|
|
Section
9.01.
|
Without
Consent of Holders of Notes
|
66
|
|
Section
9.02.
|
With
Consent of Holders of Notes
|
67
|
|
Section
9.03.
|
Compliance
with Trust Indenture Act
|
68
|
|
Section
9.04.
|
Revocation
and Effect of Consents
|
68
|
|
Section
9.05.
|
Notation
on or Exchange of Notes
|
68
|
|
Section
9.06.
|
Trustee
to Sign Amendments, etc.
|
68
|
|
ARTICLE
10.
|
68
|
|
|
Section
10.01.
|
Guarantee
|
69
|
|
Section
10.02.
|
Limitation
on Guarantor Liability
|
70
|
|
Section
10.03.
|
Execution
and Delivery of Guarantee
|
70
|
|
Section
10.04.
|
Guarantors
May Consolidate, etc., on Certain Terms
|
71
|
iii
|
TABLE
OF CONTENTS
|
||
|
Page
|
||
|
Releases
Following Merger, Consolidation or Sale of Assets, Etc.
|
71
|
|
|
ARTICLE
11.
|
SATISFACTION
AND DISCHARGE
|
72
|
|
Section
11.01.
|
Satisfaction
and Discharge
|
72
|
|
Section
11.02.
|
Deposited
Cash and U.S. Government Securities to be Held in Trust; Other
Miscellaneous Provisions
|
72
|
|
Section
11.03.
|
Repayment
to Company
|
72
|
|
ARTICLE
12.
|
MISCELLANEOUS
|
73
|
|
Section
12.01.
|
Trust
Indenture Act Controls
|
73
|
|
Section
12.02.
|
Notices
|
73
|
|
Section
12.03.
|
Communication
by Holders of Notes with Other Holders of Notes
|
74
|
|
Section
12.04.
|
Certificate
and Opinion as to Conditions Precedent
|
74
|
|
Section
12.05.
|
Statements
Required in Certificate or Opinion
|
74
|
|
Section
12.06.
|
Rules
by Trustee and Agents
|
74
|
|
Section
12.07.
|
No
Personal Liability of Directors, Officers, Employees and
Stockholders
|
75
|
|
Section
12.08.
|
Governing
Law
|
75
|
|
Section
12.09.
|
No
Adverse Interpretation of Other Agreements
|
75
|
|
Section
12.10.
|
Successors
|
75
|
|
Section
12.11.
|
Severability
|
75
|
|
Section
12.12.
|
Counterpart
Originals
|
75
|
|
Section
12.13.
|
Table
of Contents, Headings, etc.
|
75
|
|
Section
12.14.
|
Qualification
of this Indenture.
|
75
|
iv
CROSS-REFERENCE
TABLE
|
TIA
Section Reference
|
Indenture
Section
|
|
|
310(a)(1)
|
7.10
|
|
|
(a)(2)
|
7.10
|
|
|
(a)(3)
|
N.A.
|
|
|
(a)(4)
|
N.A.
|
|
|
(a)(5)
|
7.10
|
|
|
(b)
|
7.08,
7.10
|
|
|
(c)
|
N.A.
|
|
|
311(a)
|
7.11
|
|
|
(b)
|
7.11
|
|
|
(c)
|
N.A.
|
|
|
312(a)
|
2.05
|
|
|
(b)
|
12.03
|
|
|
(c)
|
12.03
|
|
|
313(a)
|
7.06
|
|
|
(b)(1)
|
N.A.
|
|
|
(b)(2)
|
7.06,
7.07
|
|
|
(c)
|
7.06,
12.02
|
|
|
(d)
|
7.06
|
|
|
314(a)
|
4.03,
4.04, 12.02
|
|
|
(b)
|
N.A.
|
|
|
(c)(1)
|
12.04
|
|
|
(c)(2)
|
12.04
|
|
|
(c)(3)
|
N.A.
|
|
|
(d)
|
N.A.
|
|
|
(e)
|
12.05
|
|
|
315(a)
|
7.01
|
|
|
(b)
|
7.05,
12.02
|
|
|
(c)
|
7.01
|
|
|
(d)
|
7.01
|
|
|
(e)
|
6.11
|
|
|
316(a)
(last sentence)
|
2.09
|
|
|
(a)(1)(A)
|
6.05
|
|
|
(a)(1)(B)
|
6.04
|
|
|
(a)(2)
|
N.A.
|
|
|
(b)
|
6.07
|
|
|
317(a)(1)
|
6.08
|
|
|
(a)(2)
|
6.09
|
|
|
(b)
|
2.04
|
|
|
318(a)
|
12.01
|
|
N.A.
means Not Applicable.
Note:
This Cross-Reference Table shall not, for any purpose, be deemed to be part
of
this Indenture.