▇▇▇▇▇ HEALTHCARE CORPORATION
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$200,000,000
__% SENIOR NOTES due 2003
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---------------
INDENTURE
Dated as of January 15, 1997
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THE BANK OF NEW YORK
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as Trustee
TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. OTHER DEFINITIONS. . . . . . . . . . . . . . . . . . . . 10
SECTION 1.03. INCORPORATION BY REFERENCE OF TIA. . . . . . . . . . . . 11
SECTION 1.04. RULES OF CONSTRUCTION. . . . . . . . . . . . . . . . . . 11
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING. . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.02. FORM OF LEGEND FOR GLOBAL SECURITY.. . . . . . . . . . . 12
SECTION 2.03. EXECUTION AND AUTHENTICATION.. . . . . . . . . . . . . . 12
SECTION 2.04. REGISTRAR AND PAYING AGENT . . . . . . . . . . . . . . . 13
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST. . . . . . . . . . . 13
SECTION 2.06. HOLDER LISTS . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.07. TRANSFER AND EXCHANGE. . . . . . . . . . . . . . . . . . 14
SECTION 2.08. PERSONS DEEMED OWNERS. . . . . . . . . . . . . . . . . . 14
SECTION 2.09. REPLACEMENT SECURITIES . . . . . . . . . . . . . . . . . 15
SECTION 2.10. OUTSTANDING SECURITIES . . . . . . . . . . . . . . . . . 15
SECTION 2.11. TREASURY SECURITIES. . . . . . . . . . . . . . . . . . . 15
SECTION 2.12. TEMPORARY SECURITIES . . . . . . . . . . . . . . . . . . 16
SECTION 2.13. CANCELLATION . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.14. DEFAULTED INTEREST . . . . . . . . . . . . . . . . . . . 16
SECTION 2.15. RECORD DATE. . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.16. CUSIP NUMBER . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 3
COVENANTS
SECTION 3.01. PAYMENT OF SECURITIES. . . . . . . . . . . . . . . . . . 17
SECTION 3.02. MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . 17
SECTION 3.03. COMMISSION REPORTS . . . . . . . . . . . . . . . . . . . 17
SECTION 3.04. COMPLIANCE CERTIFICATE . . . . . . . . . . . . . . . . . 18
SECTION 3.05. TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.06. STAY, EXTENSION AND USURY LAWS . . . . . . . . . . . . . 19
SECTION 3.07. LIMITATIONS ON RESTRICTED PAYMENTS . . . . . . . . . . . 20
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SECTION 3.08. LIMITATIONS ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES . . . . . . . . . . . . . . . . . 21
SECTION 3.09. LIMITATIONS ON INCURRENCE OF INDEBTEDNESS AND ISSUANCE
OF PREFERRED STOCK . . . . . . . . . . . . . . . . . . . 22
SECTION 3.10. LIMITATIONS ON TRANSACTIONS WITH AFFILIATES. . . . . . . 24
SECTION 3.11. LIMITATIONS ON LIENS . . . . . . . . . . . . . . . . . . 24
SECTION 3.12. CHANGE OF CONTROL. . . . . . . . . . . . . . . . . . . . 24
SECTION 3.13. CORPORATE EXISTENCE. . . . . . . . . . . . . . . . . . . 26
SECTION 3.14. LINE OF BUSINESS . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.15. LIMITATIONS ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS
BY SUBSIDIARIES. . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.16. NO AMENDMENT TO SUBORDINATION PROVISIONS OF SENIOR
SUBORDINATED NOTE INDENTURE. . . . . . . . . . . . . . . 27
ARTICLE 4
SUCCESSORS
SECTION 4.01. LIMITATIONS ON MERGERS, CONSOLIDATIONS OR SALES OF
ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.02. SUCCESSOR CORPORATION SUBSTITUTED. . . . . . . . . . . . 28
ARTICLE 5
DEFAULTS AND REMEDIES
SECTION 5.01. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . 28
SECTION 5.02. ACCELERATION . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.03. OTHER REMEDIES . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.04. WAIVER OF PAST DEFAULTS. . . . . . . . . . . . . . . . . 30
SECTION 5.05. CONTROL BY MAJORITY. . . . . . . . . . . . . . . . . . . 31
SECTION 5.06. LIMITATION ON SUITS. . . . . . . . . . . . . . . . . . . 31
SECTION 5.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT . . . . . . . . . . 31
SECTION 5.08. COLLECTION SUIT BY TRUSTEE . . . . . . . . . . . . . . . 31
SECTION 5.09. TRUSTEE MAY FILE PROOFS OF CLAIM . . . . . . . . . . . . 32
SECTION 5.10. PRIORITIES . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 5.11. UNDERTAKING FOR COSTS. . . . . . . . . . . . . . . . . . 33
ARTICLE 6
TRUSTEE
SECTION 6.01. DUTIES OF TRUSTEE. . . . . . . . . . . . . . . . . . . . 33
SECTION 6.02. RIGHTS OF TRUSTEE. . . . . . . . . . . . . . . . . . . . 34
SECTION 6.03. INDIVIDUAL RIGHTS OF TRUSTEE . . . . . . . . . . . . . . 34
SECTION 6.04. TRUSTEE'S DISCLAIMER . . . . . . . . . . . . . . . . . . 35
SECTION 6.05. NOTICE OF DEFAULTS . . . . . . . . . . . . . . . . . . . 35
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SECTION 6.06. REPORTS BY TRUSTEE TO HOLDERS. . . . . . . . . . . . . . 35
SECTION 6.07. COMPENSATION AND INDEMNITY . . . . . . . . . . . . . . . 35
SECTION 6.08. REPLACEMENT OF TRUSTEE . . . . . . . . . . . . . . . . . 36
SECTION 6.09. SUCCESSOR TRUSTEE OR AGENT BY MERGER, ETC. . . . . . . . 37
SECTION 6.10. ELIGIBILITY; DISQUALIFICATION. . . . . . . . . . . . . . 37
SECTION 6.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. . . . 37
ARTICLE 7
DISCHARGE OF INDENTURE
SECTION 7.01. DEFEASANCE AND DISCHARGE OF THIS INDENTURE AND THE
SECURITIES . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 7.02. LEGAL DEFEASANCE AND DISCHARGE . . . . . . . . . . . . . 38
SECTION 7.03. COVENANT DEFEASANCE. . . . . . . . . . . . . . . . . . . 38
SECTION 7.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE . . . . . . . 38
SECTION 7.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS. . . . . . . . . . 40
SECTION 7.06. REPAYMENT TO COMPANY . . . . . . . . . . . . . . . . . . 40
SECTION 7.07. REINSTATEMENT. . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE 8
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 8.01. WITHOUT CONSENT OF HOLDERS . . . . . . . . . . . . . . . 41
SECTION 8.02. WITH CONSENT OF HOLDERS. . . . . . . . . . . . . . . . . 42
SECTION 8.03. COMPLIANCE WITH TIA. . . . . . . . . . . . . . . . . . . 43
SECTION 8.04. REVOCATION AND EFFECT OF CONSENTS. . . . . . . . . . . . 43
SECTION 8.05. NOTATION ON OR EXCHANGE OF SECURITIES. . . . . . . . . . 43
SECTION 8.06. TRUSTEE TO SIGN AMENDMENTS, ETC. . . . . . . . . . . . . 43
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. TIA CONTROLS . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 9.02. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 9.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS. . . . . . . 45
SECTION 9.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT . . . 45
SECTION 9.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. . . . . . 45
SECTION 9.06. RULES BY TRUSTEE AND AGENTS. . . . . . . . . . . . . . . 46
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SECTION 9.07. LEGAL HOLIDAYS . . . . . . . . . . . . . . . . . . . . . 46
SECTION 9.08. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES
AND SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . 46
SECTION 9.09. DUPLICATE ORIGINALS. . . . . . . . . . . . . . . . . . . 46
SECTION 9.10. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . 46
SECTION 9.11. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. . . . . . 46
SECTION 9.12. SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 9.13. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 9.14. COUNTERPART ORIGINALS. . . . . . . . . . . . . . . . . . 47
SECTION 9.15. TABLE OF CONTENTS, HEADINGS, ETC.. . . . . . . . . . . . 47
EXHIBIT A FORM OF SECURITY
EXHIBIT B FORM OF SUPPLEMENTAL INDENTURE
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CROSS-REFERENCE TABLE(1)
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
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310 (a)(1) . . . . . . . . . . . . . . . . . . 6.10
(a)(2) . . . . . . . . . . . . . . . . . . 6.10
(a)(3) . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . 6.10
(b) . . . . . . . . . . . . . . . . . . . 6.08; 6.10
(c) . . . . . . . . . . . . . . . . . . . N.A.
311 (a) . . . . . . . . . . . . . . . . . . . 6.11
(b) . . . . . . . . . . . . . . . . . . . 6.11
(c) . . . . . . . . . . . . . . . . . . . N.A.
312 (a) . . . . . . . . . . . . . . . . . . . 2.06
(b) . . . . . . . . . . . . . . . . . . . 9.03
(c) . . . . . . . . . . . . . . . . . . . 9.03
313 (a) . . . . . . . . . . . . . . . . . . . 6.06
(b)(1) . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . 6.06
(c) . . . . . . . . . . . . . . . . . . . 6.06; 9.02
(d) . . . . . . . . . . . . . . . . . . . N.A.
314 (a) . . . . . . . . . . . . . . . . . . . 3.03; 9.02
(b) . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . 9.04
(c)(2) . . . . . . . . . . . . . . . . . . 9.04
(c)(3) . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . 9.05
(f) . . . . . . . . . . . . . . . . . . . N.A.
315 (a) . . . . . . . . . . . . . . . . . . . 6.01(iii)(b)
(b) . . . . . . . . . . . . . . . . . . . 6.05; 9.02
(c) . . . . . . . . . . . . . . . . . . . 6.01(i)
(d) . . . . . . . . . . . . . . . . . . . 6.01(iii)
(e) . . . . . . . . . . . . . . . . . . . 5.11
316 (a)(last sentence) . . . . . . . . . . . . 2.11
(a)(1)(A) . . . . . . . . . . . . . . . . 5.05
(a)(1)(B) . . . . . . . . . . . . . . . . 5.04
(a)(2) . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . 5.07
(c) . . . . . . . . . . . . . . . . . . . 2.15; 8.04
317 (a)(1) . . . . . . . . . . . . . . . . . . 5.08
(a)(2) . . . . . . . . . . . . . . . . . . 5.09
(b) . . . . . . . . . . . . . . . . . . . 2.05
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(1)This Cross-Reference Table is not part of the indenture.
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318 (a) . . . . . . . . . . . . . . . . . . . 9.01
(b) . . . . . . . . . . . . . . . . . . . N.A.
(c) . . . . . . . . . . . . . . . . . . . 9.01
N.A. means not applicable
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INDENTURE dated as of January 15, 1997 between ▇▇▇▇▇ Healthcare
Corporation, a Nevada corporation (the "COMPANY"), and The Bank of New York, 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 __% Senior
Notes due 2003 (the "SECURITIES"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS.
"ACQUIRED DEBT" means, with respect to any specified Person, (i)
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, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"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"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
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 securities of a Person shall
be deemed to be control.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"ASSET SALE" means (i) the sale, lease, conveyance or other
disposition of any assets (including, without limitation, by way of a sale and
leaseback) other than in the ordinary course of business consistent with past
practices and (ii) the issuance or sale by the Company or any of its
Subsidiaries of Equity Interests of any of the Company's Subsidiaries, in the
case of either clause (i) or (ii), whether in a single transaction or a series
of related transactions (a) that have a fair market value in excess of $25.0
million or (b) for net proceeds in excess $25.0 million. Notwithstanding the
foregoing: (a) a transfer of assets by the Company to a Subsidiary or by a
Subsidiary to the Company or to another Subsidiary, (b) an issuance of Equity
Interests by a Subsidiary to the Company or to another Subsidiary, (c) a
Restricted Payment that is permitted by Section 3.07 hereof and (d) a Hospital
Swap shall not be deemed to be an Asset Sale.
"BOARD OF DIRECTORS" means the Board of Directors of the Company or
any authorized committee thereof.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL LEASE" means, at the time any determination thereof is to be
made, any lease of property, real or personal, in respect of which the present
value of the minimum rental commitment would be capitalized on a balance sheet
of the lessee in accordance with GAAP.
"CAPITAL LEASE OBLIGATION" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a Capital Lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) 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.
"CHANGE OF CONTROL" means the occurrence of any of the following: (i)
the sale, lease, transfer, conveyance or other disposition, in one or a series
of related transactions, of all or substantially all of the assets of the
Company and its Subsidiaries taken as a whole to any Person or group (as such
term is used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), other than
to a Person or group who, prior to such transaction, held a majority of the
voting power of the voting stock of the Company, (ii) the acquisition by any
Person or group, as defined above, of a direct or indirect interest in more than
50% of the voting power of the voting stock of the Company, by way of merger,
consolidation or otherwise, or (iii) the first day on which a majority of the
members of the Board of Directors of the Company are not Continuing Directors.
"CHANGE OF CONTROL TRIGGERING EVENT" means the occurrence of both a
Change of Control and a Rating Decline.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" means ▇▇▇▇▇ Healthcare Corporation, as obligor under the
Securities, unless and until a successor replaces ▇▇▇▇▇ Healthcare Corporation,
in accordance with Article 4 hereof and thereafter includes such successor.
"CONSOLIDATED CASH FLOW" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period PLUS (i) an
amount equal to any extraordinary loss of such Person plus any net loss realized
in connection with an Asset Sale (to the extent such losses were deducted in
computing such Consolidated Net Income), PLUS (ii) provision for taxes based on
income or profits of such Person and its Subsidiaries for such period, to the
extent such provision for taxes was included in computing such Consolidated Net
Income, PLUS (iii) the Fixed Charges of such Person and its Subsidiaries for
such period, to the extent that such Fixed Charges were deducted in computing
such Consolidated Net Income, PLUS (iv) depreciation and amortization (including
amortization of goodwill and other intangibles but excluding amortization of
prepaid cash expenses that were paid in a prior period) of such Person and its
Subsidiaries for such period to the extent that such depreciation and
amortization were deducted in computing such Consolidated Net Income, in each
case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the foregoing, the provision for taxes on the income or profits
of, and the depreciation and amortization of, a Subsidiary of the referent
Person shall be added to Consolidated Net Income to compute Consolidated Cash
Flow only to the extent (and in same proportion) that the Net Income of such
Subsidiary was included in calculating the Consolidated Net Income of such
Person and only if a corresponding amount would be permitted at the date of
determination to be dividended to the Company by such 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.
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"CONSOLIDATED NET INCOME" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP but
excluding any one-time charge or expense incurred in order to consummate the
Refinancing; PROVIDED that (i) the Net Income of any Person that is not a
Subsidiary or that is accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or distributions paid in
cash to the referent Person or a Wholly Owned Subsidiary thereof, (ii) the Net
Income of any Subsidiary shall be excluded to the extent that the declaration or
payment of dividends or similar distributions by that Subsidiary of that Net
Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary or its stockholders, (iii) the Net Income of any Person acquired in a
pooling of interests transaction for any period prior to the date of such
acquisition shall be excluded and (iv) the cumulative effect of a change in
accounting principles shall be excluded.
"CONSOLIDATED NET WORTH" means, with respect to any Person as of any
date, the sum of (i) the consolidated equity of the common stockholders of such
Person and its consolidated Subsidiaries as of such date PLUS (ii) the
respective amounts reported on such Person's balance sheet as of such date with
respect to any series of preferred stock (other than Disqualified Stock), LESS
all write-ups (other than write-ups resulting from foreign currency translations
and write-ups of tangible assets of a going concern business made in accordance
with GAAP as a result of the acquisition of such business) subsequent to the
date hereof in the book value of any asset owned by such Person or a
consolidated Subsidiary of such Person, and excluding the cumulative effect of a
change in accounting principles, all as determined in accordance with GAAP.
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the date hereof or (ii) 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 9.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"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.
"DEPOSITARY" means a clearing agency registered under the Exchange Act
that is designated to act as Depositary for the Securities.
"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), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the Holder thereof, in whole or in part, on or prior to December
1, 2003.
"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).
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"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXISTING INDEBTEDNESS" means Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the New Credit Facility in existence
on the date hereof, until such amounts are repaid, including all reimbursement
obligations with respect to letters of credit outstanding as of the date hereof
(other than letters of credit issued pursuant to the New Credit Facility).
"FIXED CHARGE COVERAGE RATIO" means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person for such period
to the Fixed Charges of such Person for such period; PROVIDED, HOWEVER, that in
the event that the Company or any of its Subsidiaries incurs, assumes,
Guarantees or redeems any Indebtedness (other than revolving credit borrowings)
or issues preferred stock subsequent to the commencement of the period for which
the Fixed Charge Coverage Ratio is being calculated but 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 shall be
calculated giving PRO FORMA effect to such incurrence, assumption, Guarantee or
redemption of Indebtedness, or such issuance or redemption of preferred stock,
as if the same had occurred at the beginning of the applicable four-quarter
reference period; and PROVIDED FURTHER that for purposes of making the
computation referred to above, (i) acquisitions that have been made by the
Company or any of its 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 shall be deemed to have occurred on the first day of the
four-quarter reference period, and (ii) the Consolidated Cash Flow and Fixed
Charges attributable to discontinued operations, as determined in accordance
with GAAP, and operations or businesses disposed of prior to the Calculation
Date, shall be excluded.
"FIXED CHARGES" means, with respect to any Person for any period, the
sum of (i) the consolidated interest expense of such Person and its Subsidiaries
for such period, whether paid or accrued (including, without limitation,
amortization of 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, commissions,
discounts and other fees and charges incurred in respect of letters of credit or
bankers' acceptance financings, and net payments or receipts (if any) pursuant
to Hedging Obligations) and (ii) the consolidated interest expense of such
Person and its Subsidiaries that was capitalized during such period, and (iii)
any interest expense on Indebtedness of another Person that is Guaranteed by
such Person or one of its Subsidiaries or secured by a Lien on assets of such
Person or one of its Subsidiaries (whether or not such Guarantee or Lien is
called upon) and (iv) the product of (a) all cash dividend payments (and
non-cash dividend payments in the case of a Person that is a Subsidiary) on any
series of preferred stock of such Person, 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.
"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, as in effect from time to time.
"GLOBAL SECURITY" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 2.02.
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"GOVERNMENT SECURITIES" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"GUARANTEE" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"HEDGING OBLIGATIONS" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements, (ii) forward foreign
exchange contracts or currency swap agreements and (iii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency values.
"HOLDER" means a Person in whose name a Security is registered.
"HOSPITAL" means a hospital, outpatient clinic, long-term care
facility or other facility or business that is used or useful in or related to
the provision of healthcare services.
"HOSPITAL SWAP" means an exchange of assets by the Company or a
Subsidiary of the Company for one or more Hospitals and/or one or more Related
Businesses or for the Capital Stock of any Person owning one or more Hospitals
and/or one or more Related Businesses.
"INDEBTEDNESS" means with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable, if
and to the extent any of the foregoing indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance sheet
of such Person prepared in accordance with GAAP, as well as all indebtedness of
others secured by a Lien on any asset of such Person (whether or not such
indebtedness is assumed by such Person) and, to the extent not otherwise
included, the Guarantee by such Person of any indebtedness of any other Person.
"INDENTURE" means this Indenture, as amended or supplemented from time
to time.
"INVESTMENT GRADE" means a rating of BBB- or higher by S&P or Baa3 or
higher by ▇▇▇▇▇'▇ or the equivalent of such ratings by S&P or ▇▇▇▇▇'▇. In the
event that the Company shall select any other Rating Agency, the equivalent of
such ratings by such Rating Agency shall be used.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset
given to secure Indebtedness, 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 with respect to any such lien, pledge, charge or
security interest).
-5-
"MOODY'S" means ▇▇▇▇▇'▇ Investors Services, Inc. and its successors.
"NET INCOME" means, with respect to any 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, (i) 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 (including, without
limitation, dispositions pursuant to sale and leaseback transactions) or (b) the
disposition of any securities by such Person or any of its Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its Subsidiaries and
(ii) any extraordinary or nonrecurring gain (but not loss), together with any
related provision for taxes on such extraordinary or nonrecurring gain (but not
loss).
"NEW CREDIT FACILITY" means that certain Credit Agreement, dated as of
January __, 1997, by and among the Company and ▇▇▇▇▇▇ Guaranty Trust Company of
New York and the other banks that are party thereto, providing for up to $2.5
billion in aggregate principal amount of Indebtedness, including any related
notes, instruments and agreements executed in connection therewith, and in each
case as amended, modified, extended, renewed, refunded, replaced or refinanced,
in whole or in part, from time to time.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFICERS" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary
and any Vice President of the Company or any Subsidiary, as the case may be.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers,
one of whom must be the principal executive officer, principal financial officer
or principal accounting officer of the Company.
"OPINION OF COUNSEL" means an opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company, any Subsidiary or the Trustee.
"PAYMENT DEFAULT" means any failure to pay any scheduled installment
of interest or principal on any Indebtedness within the grace period provided
for such payment in the documentation governing such Indebtedness.
"PERMITTED LIENS" means (i) Liens in favor of the Company; (ii)
Liens on property of a Person existing at the time such Person is merged into
or consolidated with the Company or any Subsidiary of the Company or becomes
a Subsidiary of the Company; PROVIDED that such Liens were in existence prior
to the contemplation of such merger, consolidation or acquisition (unless
such Liens secure Indebtedness that was incurred in connection with or in
contemplation of such acquisition and is used to refinance tax-exempt
Indebtedness) and do not extend to any assets or the Company or its
Subsidiaries other than those of the Person merged into or consolidated with
the Company or that becomes a Subsidiary of the Company; (iii) Liens on
property existing at the time of acquisition thereof by the Company or any
Subsidiary of the Company; PROVIDED that such Liens were in existence prior
to the contemplation of such acquisition (unless such Liens secure
Indebtedness that
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was incurred in connection with or in contemplation of such acquisition and
is used to refinance tax-exempt Indebtedness); (iv) Liens to secure the
performance of statutory obligations, tender, bid, performance, government
contract, surety or appeal bonds or other obligations of a like nature incurred
in the ordinary course of business; (v) Liens existing on the date hereof;
(vi) Liens for taxes, assessments or governmental charges or claims that are not
yet delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded; provided that any
reserve or other appropriate provision as shall be required in conformity with
GAAP shall have been made therefor; (vii) other Liens on assets of the Company
or any Subsidiary of the Company securing Indebtedness that is permitted by the
terms hereof to be outstanding having an aggregate principal amount at any one
time outstanding not to exceed 10% of the Stockholders' Equity of the Company;
and (viii) Liens to secure Permitted Refinancing Indebtedness incurred to
refinance Indebtedness that was secured by a Lien permitted hereunder and that
was incurred in accordance with the provisions hereof; PROVIDED that such Liens
do not extend to or cover any property or assets of the Company or any
Subsidiary other than assets or property securing the Indebtedness so
refinanced.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the
Company or any of its Subsidiaries issued in exchange for, or the net proceeds
of which are used solely to extend, refinance, renew, replace, defease or
refund, other Indebtedness of the Company or any of its Subsidiaries; PROVIDED
that, except in the case of Indebtedness of the Company issued in exchange for,
or the net proceeds of which are used solely to extend, refinance, renew,
replace, defease or refund, Indebtedness of a Subsidiary of the Company: (i)
the principal amount of such Permitted Refinancing Indebtedness does not exceed
the principal amount of the Indebtedness so extended, refinanced, renewed,
replaced, defeased or refunded (plus the amount of any premiums paid and
reasonable expenses incurred in connection therewith); (ii) such Permitted
Refinancing Indebtedness has a final maturity date later than the final maturity
date of, and has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (iii) if the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Securities, 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 Securities on terms at least as
favorable to the Holders of Securities as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; (iv) such Indebtedness is incurred by the Company if the
Company is the obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (v) such Indebtedness is incurred by the
Company or a Subsidiary if a Subsidiary 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 or unincorporated organization
(including any subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision or business).
"PHYSICIAL JOINT VENTURE DISTRIBUTIONS" means distributions made by
the Company or any of its Subsidiaries to any physician, pharmacist or other
allied healthcare professional in connection with the unwinding, liquidation or
other termination of any joint venture or similar arrangement between any such
Person and the Company or any of its Subsidiaries.
"PHYSICIAN SUPPORT OBLIGATIONS" means any obligation or Guarantee
incurred in the ordinary course of business by the Company or a Subsidiary of
the Company in connection with any
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advance, loan or payment to, or on behalf of or for the benefit of any
physician, pharmacist or other allied healthcare professional for the purpose of
recruiting, redirecting or retaining the physician, pharmacist or other allied
healthcare professional to provide service to patients in the service area of
any Hospital or Related Business owned or operated by the Company or any of its
Subsidiaries; EXCLUDING, HOWEVER, compensation for services provided by
physicians, pharmacists or other allied healthcare professionals to any Hospital
or Related Business owned or operated by the Company or any of its Subsidiaries.
"QUALIFIED EQUITY INTERESTS" shall mean all Equity Interests of the
Company other than Disqualified Stock of the Company.
"RATING AGENCIES" means (i) S&P and (ii) Moody's or (iii) if S&P or
Moody's or both shall not make a rating of the Securities publicly available, a
nationally recognized securities rating agency or agencies, as the case may be,
selected by the Company, shall be substituted for S&P or Moody's or both, as the
case may be.
"RATING CATEGORY" means (i) with respect to S&P, any of the following
categories: BB, B, CCC, CC, C and D (or equivalent successor categories); (ii)
with respect to Moody's, any of the following categories: Ba, B, Caa, Ca, C and
D (or equivalent successor categories); and (iii) the equivalent of any such
category of S&P or Moody's used by another Rating Agency. In determining
whether the rating of the Securities has decreased by one or more gradations,
gradations within Rating Categories (+ and - for S&P; 1, 2 and 3 for Moody's; or
the equivalent gradations for another Rating Agency) shall be taken into account
(E.G., with respect to S&P, a decline in a rating from BB+ to BB, as well as
from BB- to B+, shall constitute a decrease of one gradation).
"RATING DATE" means the date which is 90 days prior to the earlier of
(i) a Change of Control and (ii) the first public notice of the occurrence of a
Change of Control or of the intention by the Company to effect a Change of
Control.
"RATING DECLINE" means the occurrence on or within 90 days after the
date of the first public notice of the occurrence of a Change of Control or of
the intention by the Company to effect a Change of Control (which period shall
be extended so long as the rating of the Securities is under publicly announced
consideration for possible downgrade by any of the Rating Agencies) of: (a) in
the event the Securities are rated by either ▇▇▇▇▇'▇ or S&P on the Rating Date
as Investment Grade, a decrease in the rating of the Securities by both Rating
Agencies to a rating that is below Investment Grade, or (b) in the event the
Securities are rated below Investment Grade by both Rating Agencies on the
Rating Date, a decrease in the rating of the Securities by either Rating Agency
by one or more gradations (including gradations within Rating Categories as well
as between Rating Categories).
"REFINANCING" has the meaning ascribed to it in the prospectus dated
January __, 1997 relating to the Company's ___% Senior Notes due 2003, ___%
Senior Notes due 2005 and the ___% Senior Subordinated Notes due 2007.
"RELATED BUSINESS" means a healthcare business affiliated or
associated with a Hospital or any business related or ancillary to the provision
of healthcare services or information or the investment in, management, leasing
or operation of a Hospital.
"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) or any other officer of the Trustee customarily performing
functions similar to those performed by any of the
-8-
above designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"SECURITIES" means the securities described above, issued under this
Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR SUBORDINATED NOTES" means the ____% Senior Subordinated Notes
due 2007 of the Company in an aggregate principal amount of $500.0 million,
issued pursuant to the Senior Subordinated Note Indenture.
"SENIOR SUBORDINATED NOTE INDENTURE" means the Indenture dated as of
January 15, 1997 between the Company and The Bank of New York, as trustee, as
amended or supplemented from time to time, under which the Senior Subordinated
Notes were issued.
"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 date hereof.
"S&P" means Standard & Poor's Corporation and its successors.
"SPECIFIED EXCHANGE" means any retirement of Indebtedness upon the
exercise by a holder of such Indebtedness, pursuant to the terms thereof, of any
right to exchange such Indebtedness for shares of common stock of Vencor, Inc.
or any successor thereto or any other equity securities, other than Equity
Interests of a Subsidiary, owned by the Company as of October 11, 1995, or for
any securities or other property received with respect to such common stock or
equity securities or cash in lieu thereof, whether or not such right is subject
to the Company's ability to pay an amount in cash in lieu thereof.
"STOCKHOLDERS' EQUITY" means, with respect to any Person as of any
date, the stockholders' equity of such Person determined in accordance with GAAP
as of the date of the most recent available internal financial statements of
such Person, and calculated on a PRO FORMA basis to give effect to any
acquisition or disposition by such Person consummated or to be consummated since
the date of such financial statements and on or prior to the date of such
calculation.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C.
Section 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA, except as provided in Section 8.03 hereof.
-9-
"TRANSFER RESTRICTION" means, with respect to the Company's
Subsidiaries, any encumbrance or restriction on the ability of any Subsidiary to
(i)(a) pay dividends or make any other distributions to the Company or any of
its Subsidiaries (1) on its Capital Stock or (2) with respect to any other
interest or participation in, or measured by, its profits, or (b) pay any
Indebtedness owed to the Company or any of its Subsidiaries, (ii) make loans or
advances to the Company or any of its Subsidiaries, or (iii) transfer any of its
properties or assets to the Company or any of its Subsidiaries.
"TRUSTEE" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"WHOLLY OWNED SUBSIDIARY" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person or by
such Person and one or more Wholly Owned Subsidiaries of such Person.
"2005 EXCHANGEABLE SUBORDINATED NOTES" means the 6% Exchangeable
Subordinated Notes due 2005 of the Company in an aggregate principal amount of
$320.0 million, issued pursuant to the Indenture dated as of January 10, 1996,
between the Company and The Bank of New York, as trustee, as amended or
supplemented from time to time.
"2005 SENIOR SUBORDINATED NOTES" means the 10 1/8% Senior
Subordinated Notes due 2005 of the Company in an aggregate principal amount
of $900.0 million, issued pursuant to the Indenture dated as of March 1,
1995, between the Company and The Bank of New York, as trustee, as amended or
supplemented from time to time.
SECTION 1.02. OTHER DEFINITIONS.
DEFINED IN
TERM SECTION
---- ----------
"Affiliate Transaction" . . . . . . . . . . . . . . 3.10
"Bankruptcy Law" . . . . . . . . . . . . . . . . . 5.01
"Change of Control Offer" . . . . . . . . . . . . . 3.12
"Change of Control Payment" . . . . . . . . . . . . 3.12
"Change of Control Payment Date" . . . . . . . . . 3.12
"Covenant Defeasance" . . . . . . . . . . . . . . . 7.03
"Custodian" . . . . . . . . . . . . . . . . . . . . 5.01
"Event of Default" . . . . . . . . . . . . . . . . 5.01
"incur" . . . . . . . . . . . . . . . . . . . . . . 3.09
"Legal Defeasance" . . . . . . . . . . . . . . . . 7.02
"Legal Holiday" . . . . . . . . . . . . . . . . . . 9.07
"Notice of Default" . . . . . . . . . . . . . . . . 5.01
"Paying Agent" . . . . . . . . . . . . . . . . . . 2.03
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"Registrar" . . . . . . . . . . . . . . . . . . . . 2.03
"Restricted Payments" . . . . . . . . . . . . . . . 3.07
SECTION 1.03. INCORPORATION BY REFERENCE OF ▇▇▇.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"INDENTURE SECURITIES" means the Securities;
"INDENTURE SECURITY HOLDER" means a Holder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
"OBLIGOR" on the Securities means the Company and any successor
obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by the Commission rule
under the TIA have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING.
The Securities and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A hereto, the terms of which are
incorporated in and made a part of this Indenture. The Securities may have
notations, legends or endorsements approved as to form by the
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Company and required by law, stock exchange rule, agreements to which the
Company is subject or usage. Each Security shall be dated the date of its
authentication. The Securities shall be issuable only in registered form,
without coupons, in denominations of $1,000 and integral multiples thereof. The
Securities may be Global Securities, as determined by the officers executing
such Securities, as evidenced by their execution of such Securities.
SECTION 2.02. FORM OF LEGEND FOR GLOBAL SECURITY.
Every Global Security authenticated and delivered hereunder shall bear
a legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee thereof. This Security may not be exchanged in
whole or in part for a Security registered, and no transfer of this
Security in whole or in part may be registered, in the name of any person
other than such Depositary or a nominee thereof, except in the limited
circumstances described in the Indenture."
SECTION 2.03. EXECUTION AND AUTHENTICATION.
An Officer of the Company shall sign the Securities for the Company by
manual or facsimile signature. The Company's seal shall be reproduced on the
Securities and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature of the Trustee shall be conclusive
evidence that the Security has been authenticated under this Indenture. The
form of Trustee's certificate of authentication to be borne by the Securities
shall be substantially as set forth in Exhibit A hereto.
The Trustee shall, upon a written order of the Company signed by two
Officers of the Company, authenticate Securities for original issue up to the
aggregate principal amount stated in paragraph 4 of the Securities. The
aggregate principal amount of Securities outstanding at any time shall not
exceed the amount set forth herein except as provided in Section 2.09 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate of the Company.
Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
The Company initially appoints The Depositary Trust Company as the
Depositary.
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SECTION 2.04. REGISTRAR AND PAYING AGENT.
The Company shall maintain (i) an office or agency
where Securities may be presented for registration of transfer or
for exchange (including any co-registrar, the "REGISTRAR") and
(ii) an office or agency where Securities may be presented for
payment (the "PAYING AGENT"). The Registrar shall keep a
register of the Securities and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any
additional paying agent. The Company may change any Paying
Agent, Registrar or co-registrar without prior notice to any
Holder. The Company shall notify the Trustee and the Trustee
shall notify the Holders of the name and address of any Agent not
a party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee
shall act as such. The Company or any of its Subsidiaries may
act as Paying Agent, Registrar or co-registrar. The Company shall
enter into an appropriate agency agreement with any Agent not a
party to this Indenture, which shall incorporate the provisions
of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify
the Trustee of the name and address of any such Agent. If the
Company fails to maintain a Registrar or Paying Agent, or fails
to give the foregoing notice, the Trustee shall act as such, and
shall be entitled to appropriate compensation in accordance with
Section 6.07 hereof.
The Company initially appoints the Trustee as
Registrar, Paying Agent and agent for service of notices and
demands in connection with the Securities.
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST.
On or prior to the due date of principal of, premium,
if any, and interest on any Securities, the Company shall deposit
with the Trustee or the Paying Agent money sufficient to pay such
principal, premium, if any, and interest becoming due. 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 the Holders or the Trustee all money held by the
Paying Agent for the payment of principal of, premium, if any,
and interest on the Securities, and shall notify the Trustee of
any Default by the Company in making any such payment. While any
such Default continues, the Trustee may require a Paying Agent to
pay all money held by it to the Trustee. The Company at any time
may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if
other than the Company) shall have no further liability for the
money delivered to the Trustee. If the Company acts as Paying
Agent, it shall segregate and hold in a separate trust fund for
the benefit of the Holders all money held by it as Paying Agent.
SECTION 2.06. HOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of Holders and shall otherwise comply
with TIA Section 312(a). If the Trustee is not the Registrar,
the Company shall furnish to the Trustee at least seven Business
Days before each interest payment date and at such other times as
the Trustee may request in writing a list in such form and as of
such date as the Trustee may reasonably require of the names and
addresses of Holders, including the aggregate principal amount of
the Securities held by each thereof, and the Company shall
otherwise comply with TIA Section 312(a).
-13-
SECTION 2.07. TRANSFER AND EXCHANGE.
When Securities are presented to the Registrar with a
request to register the transfer or to exchange them for an equal
principal amount of Securities of other denominations, the
Registrar shall register the transfer or make the exchange if its
requirements for such transactions are met; PROVIDED, HOWEVER,
that any Security presented or surrendered for registration of
transfer or exchange shall be duly endorsed or accompanied by a
written instruction of transfer in form satisfactory to the
Registrar and the Trustee duly executed by the Holder thereof or
by his attorney duly authorized in writing. To permit
registrations of transfer and exchanges, the Company shall issue
and the Trustee shall authenticate Securities at the Registrar's
request, subject to such rules as the Trustee may reasonably
require.
Neither the Company nor the Registrar shall be required
to register the transfer or exchange of a Security between the
record date and the next succeeding interest payment date.
No service charge shall be made to any Holder for any
registration of transfer or exchange (except as otherwise
expressly permitted herein), 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
such transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2.12 or 8.05 hereof, which shall
be paid by the Company).
Notwithstanding the foregoing, a Global Security may
not be transferred except as a whole by the Depositary to a
nominee of the Depositary or any such nominee to a successor of
the Depositary or a nominee of such successor, unless:
(i) the Depositary is at any time unwilling or
unable to continue as depository or if at any time the
Depositary ceases to be a clearing agency registered under
the Exchange Act and a successor depository is not appointed
by the Company within 90 days,
(ii) an Event of Default under this Indenture with
respect to the Securities has occurred and is continuing and
the beneficial owners representing a majority in principal
amount of the Securities advise the Depositary to cease
acting as depositary or
(iii) the Company, in its sole discretion,
determines at any time that the Securities shall no longer
be represented by a Global Security, the Company will issue
individual Securities of the applicable amount and in
certificated form in exchange for a Global Security. In any
such instance, an owner of a beneficial interest in the
Global Security will be entitled to physical delivery of
individual securities in certificated form of like tenor,
equal in principal amount to such beneficial interest and to
have such Securities in certificated form registered in its
name.
SECTION 2.08. PERSONS DEEMED OWNERS.
Prior to due presentment for registration of transfer
of any Security, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Security is registered as
the absolute owner of such Security for the purpose of receiving
payment of principal of, premium, if any, and interest on such
Security and for all other purposes whatsoever, whether or not
such Security is overdue, and neither the Trustee, any Agent nor
the Company shall be affected by notice to the contrary.
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So long as the Depositary or its nominee is the
registered Holder of a Global Security, the Depositary or its
nominee, as the case may be, will be treated as the sole owner of
it for all purposes under the Indenture and the beneficial owners
of the Securities will be entitled only to those rights and
benefits afforded to them in accordance with the Depositary's
regular operating procedures. Except as provided in Section 2.07,
owners of beneficial interests in a Global Security will not be
entitled to have Securities represented by a Global Security
registered in their names, will not receive or be entitled to
receive physical delivery of Securities in certificated form and
will not be considered the registered Holders thereof under the
Indenture.
None of the Company, the Trustee, any Paying Agent or
the Registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of
beneficial ownership interests of a Global Security or for
maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
SECTION 2.09. REPLACEMENT SECURITIES.
If any mutilated Security is surrendered to the Trustee
or the Company, or the Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any Security,
the Company shall issue and the Trustee, upon the written order
of the Company signed by two Officers of the Company, shall
authenticate a replacement Security if the Trustee's requirements
for replacements of Securities are met. If required by the
Trustee or the Company, an indemnity bond must be supplied by the
Holder that is sufficient in the judgment of the Trustee and the
Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss which any of them may suffer
if a Security is replaced. Each of the Company and the Trustee
may charge for its expenses in replacing a Security.
Every replacement Security is an additional obligation
of the Company.
SECTION 2.10. OUTSTANDING SECURITIES.
The Securities outstanding at any time are all the
Securities authenticated by the Trustee except for those
cancelled by it, those delivered to it for cancellation and those
described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.09
hereof, it ceases to be outstanding unless the Trustee receives
proof satisfactory to it that the replaced Security is held by a
bona fide purchaser.
If the principal amount of any Security is considered
paid under Section 3.01 hereof, it ceases to be outstanding and
interest on it ceases to accrue.
Subject to Section 2.11 hereof, a Security does not
cease to be outstanding because the Company or an Affiliate of
the Company holds the Security.
SECTION 2.11. TREASURY SECURITIES.
In determining whether the Holders of the required
principal amount of Securities then outstanding have concurred in
any demand, direction, waiver or consent, Securities owned by the
Company or any Affiliate of the Company shall be considered as
though not outstanding, except that for purposes of determining
whether the Trustee shall be protected in relying on any such
demand,
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direction, waiver or consent, only Securities that a Responsible
Officer actually knows to be so owned shall be so considered.
Notwithstanding the foregoing, Securities that are to be acquired
by the Company or an Affiliate of the Company pursuant to an
exchange offer, tender offer or other agreement shall not be
deemed to be owned by the Company or an Affiliate of the Company
until legal title to such Securities passes to the Company or
such Affiliate, as the case may be.
SECTION 2.12. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee, upon receipt of the written
order of the Company signed by two Officers of the Company, shall
authenticate temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have
variations that the Company and the Trustee consider appropriate
for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee, upon receipt of the
written order of the Company signed by two Officers of the
Company, shall authenticate definitive Securities in exchange for
temporary Securities. Until such exchange, temporary Securities
shall be entitled to the same rights, benefits and privileges as
definitive Securities.
SECTION 2.13. CANCELLATION.
The Company at any time may deliver Securities to the
Trustee for cancellation. The Registrar and Paying Agent shall
forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee shall
cancel all Securities surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall return
such cancelled Securities to the Company. The Company may not
issue new Securities to replace Securities that it has paid or
that have been delivered to the Trustee for cancellation.
SECTION 2.14. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the
Securities, 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, which date shall be at the
earliest practicable date but in all events at least five
Business Days prior to the related payment date, in each case at
the rate provided in the Securities and in Section 3.01 hereof.
The Company shall, with the consent of the Trustee, fix or cause
to be fixed each such special record date and payment date. At
least 15 days before the special record date, the Company (or the
Trustee, in the name of and at the expense of the Company) shall
mail to Holders a notice that states the special record date, the
related payment date and the amount of such interest to be paid.
SECTION 2.15. RECORD DATE.
The record date for purposes of determining the
identity of Holders entitled to vote or consent to any action by
vote or consent authorized or permitted under this Indenture
shall be determined as provided for in TIA Section 316(c).
SECTION 2.16. CUSIP NUMBER.
The Company in issuing the Securities may use a "CUSIP"
number, and if it does so, the Trustee shall use the CUSIP number
in notices to Holders; PROVIDED that any such notice may state
that no representation is made as to the correctness or accuracy
of the CUSIP number printed in
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the notice or on the Securities and that reliance may be placed
only on the other identification numbers printed on the
Securities. The Company shall promptly notify the Trustee of any
change in the CUSIP number.
ARTICLE 3
COVENANTS
SECTION 3.01. PAYMENT OF SECURITIES.
The Company shall pay or cause to be paid the principal
of, premium, if any, and interest on the Securities on the dates
and in the manner provided in this Indenture and the Securities.
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 of the Company, holds as of 10:00 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, no later than five days
following the date of payment, any money (including accrued
interest) that exceeds such amount of principal, premium, if any,
and interest to be paid on the Securities.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue
principal at the rate equal to 1% per annum in excess of the
interest rate then applicable to the Securities to the extent
lawful. In addition, 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 period) at the same rate to the extent lawful.
SECTION 3.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan,
the City of New York, an office or agency (which may be an office
of the Trustee or an affiliate of the Trustee, Registrar or
co-registrar) where Securities may be surrendered for
registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities and
this Indenture may be served. The 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.
The Company may also from time to time designate one or
more other offices or agencies where the Securities may be
presented or surrendered for any or all such purposes and may
from time to time rescind such designations; PROVIDED, HOWEVER,
that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, the City of New York for such
purposes. The Company shall give prompt written notice to the
Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
The Company hereby designates The Bank of New York, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as one such
office or agency of the Company in accordance with Section 2.04
hereof.
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SECTION 3.03. COMMISSION REPORTS.
(i) So long as any of the Securities remain
outstanding, the Company shall provide to the Trustee within
15 days after the filing thereof with the Commission copies
of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the
foregoing as the Commission may by rules and regulations
prescribe) that the Company is required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange
Act. All obligors on the Securities shall comply with the
provisions of TIA Section 314(a). Notwithstanding that the
Company may not be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act or otherwise report
on an annual and quarterly basis on forms provided for such
annual and quarterly reporting pursuant to rules and
regulations promulgated by the Commission, the Company shall
file with the Commission and provide to the Trustee (a)
within 90 days after the end of each fiscal year, annual
reports on Form 10-K (or any successor or comparable form)
containing the information required to be contained therein
(or required in such successor or comparable form),
including a "MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS" and a report
thereon by the Company's certified public accountants; (b)
within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, reports on Form 10-Q
(or any successor or comparable form) containing the
information required to be contained therein (or required in
any successor or comparable form), including a "MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS"; and (c) promptly from time to time after the
occurrence of an event required to be therein reported, such
other reports on Form 8-K (or any successor or comparable
form) containing the information required to be contained
therein (or required in any successor or comparable form);
PROVIDED, HOWEVER, that the Company shall not be in default
of the provisions of this Section 3.03(i) for any failure to
file reports with the Commission solely by the refusal of
the Commission to accept the same for filing. Each of the
financial statements contained in such reports shall be
prepared in accordance with GAAP.
(ii) The Trustee, at the Company's expense, shall
promptly mail copies of all such annual reports,
information, documents and other reports provided to the
Trustee pursuant to Section 3.03(i) hereof to the Holders at
their addresses appearing in the register of Securities
maintained by the Registrar.
(iii) Whether or not required by the rules and
regulations of the Commission, the Company shall file a copy
of all such information and reports with the Commission for
public availability and make such information available to
securities analysts and prospective investors upon request.
(iv) The Company shall provide the Trustee with a
sufficient number of copies of all reports and other
documents and information that the Trustee may be required
to deliver to the Holders under this Section 3.03.
(v) 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 3.04. COMPLIANCE CERTIFICATE.
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(i) The Company shall deliver to the Trustee, within
120 days after the end of each fiscal year, an Officers'
Certificate stating that a review of the activities of the
Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing
Officers with a view to determining whether each has kept,
observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her
knowledge each entity has 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 each is taking or proposes to take with respect
thereto), all without regard to periods of grace or notice
requirements, and that to the best of his or her knowledge
no event has occurred and remains in existence by reason of
which payments on account of the principal of or interest,
if any, on the Securities is prohibited or if such event has
occurred, a description of the event and what action each is
taking or proposes to take with respect thereto.
(ii) So long as not contrary to the then current
recommendations of the American Institute of Certified
Public Accountants, the year-end financial statements
delivered pursuant to Section 3.03 above shall be
accompanied by a written statement of the Company's
certified independent public accountants (who shall be a
firm of established national reputation) that in making the
examination necessary for certification of such financial
statements nothing has come to their attention which would
lead them to believe that the Company or any Subsidiary of
the Company has violated any provisions of Article 3 or of
Article 4 of this Indenture or, if any such violation has
occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not
be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
(iii) The Company shall, so long as any of the
Securities are outstanding, deliver to the Trustee,
forthwith upon any Officer becoming aware of (a) any Default
or Event of Default or (b) any event of default under any
other mortgage, indenture or instrument referred to in
Section 5.01(v) hereof, an Officers' Certificate specifying
such Default, Event of Default or event of default and what
action the Company is taking or proposes to take with
respect thereto.
SECTION 3.05. 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 (i) as contested in
good faith by appropriate proceedings and with respect to which
appropriate reserves have been taken in accordance with GAAP or
(ii) where the failure to effect such payment is not adverse in
any material respect to the Holders.
SECTION 3.06. 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
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granted to the Trustee, but shall suffer and permit the execution
of every such power as though no such law has been enacted.
SECTION 3.07. LIMITATIONS ON RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly: (i) declare or pay any
dividend or make any distribution on account of the Company's or
any of its Subsidiaries' Equity Interests (other than
(w) Physician Joint Venture Distributions, (x) dividends or
distributions payable in Qualified Equity Interests of the
Company, (y) dividends or distributions payable to the Company or
any Subsidiary of the Company and (z) dividends or distributions
by any Subsidiary of the Company payable to all holders of a
class of Equity Interests of such Subsidiary on a PRO RATA
basis); (ii) purchase, redeem or otherwise acquire or retire for
value any Equity Interests of the Company; or (iii) make any
principal payment on, or purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness that is subordinated
to the Securities, except at the original final maturity date
thereof or pursuant to a Specified Exchange or the Refinancing
(all such payments and other actions set forth in clauses (i)
through (iii) above being collectively referred to as "RESTRICTED
PAYMENTS"), unless, at the time of and after giving effect to
such Restricted Payment (the amount of any such Restricted
Payment, if other than cash, shall be the fair market value (as
conclusively evidenced by a resolution of the Board of Directors
set forth in an Officers' Certificate delivered to the Trustee
within 60 days prior to the date of such Restricted Payment) of
the asset(s) proposed to be transferred by the Company or such
Subsidiary, as the case may be, pursuant to such Restricted
Payment):
(a) no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof;
and
(b) the Company would, at the time of such Restricted
Payment and after giving PRO FORMA effect thereto as if such
Restricted Payment had been made at the beginning of the
most recently ended four full fiscal quarter period for
which internal financial statements are available
immediately preceding the date of such Restricted Payment,
have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in the first paragraph of Section 3.09
hereof; and
(c) such Restricted Payment, together with the
aggregate of all other Restricted Payments made by the
Company and its Subsidiaries after March 1, 1995 (excluding
Restricted Payments permitted by clauses (ii), (iii), (iv)
and (v) of the next succeeding paragraph), is less than the
sum of (1) 50% of the Consolidated Net Income of the Company
for the period (taken as one accounting period) from the
beginning of the first fiscal quarter commencing after March
1, 1995 to the end of the Company's most recently ended
fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if
such Consolidated Net Income for such period is a deficit,
less 100% of such deficit), PLUS (2) 100% of the aggregate
net cash proceeds received by the Company from the issue or
sale (other than to a Subsidiary of the Company) since
March 1, 1995 of Qualified Equity Interests of the Company
or of debt securities of the Company or any of its
Subsidiaries that have been converted into or exchanged for
such Qualified Equity Interests of the Company, PLUS (3)
$20.0 million.
If no Default or Event of Default has occurred and is
continuing or would occur as a consequence thereof, the foregoing
provisions shall not prohibit:
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(i) the payment of any dividend within 60 days after
the date of declaration thereof, if at said date of
declaration such payment would have complied with the
provisions hereof;
(ii) the payment of cash dividends on any series of
Disqualified Stock issued after the date hereof in an
aggregate amount not to exceed the cash received by the
Company since the date hereof upon issuance of such
Disqualified Stock;
(iii) the redemption, repurchase, retirement or other
acquisition of any Equity Interests of the Company or any
Subsidiary in exchange for, or out of the net cash proceeds
of, the substantially concurrent sale (other than to a
Subsidiary of the Company) of Qualified Equity Interests of
the Company; PROVIDED that the amount of any such net cash
proceeds that are utilized for any such redemption,
repurchase, retirement or other acquisition shall be
excluded from clause (c)(2) of the preceding paragraph;
(iv) the defeasance, redemption or repurchase of
subordinated Indebtedness with the net cash proceeds from an
incurrence of Permitted Refinancing Indebtedness or in
exchange for or out of the net cash proceeds from the
substantially concurrent sale (other than to a Subsidiary of
the Company) of Qualified Equity Interests of the Company;
PROVIDED that the amount of any such net cash proceeds that
are utilized for any such redemption, repurchase, retirement
or other acquisition shall be excluded from clause (c)(2) of
the preceding paragraph;
(v) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company
or any Subsidiary of the Company held by any member of the
Company's (or any of its Subsidiaries') management pursuant
to any management equity subscription agreement or stock
option agreement; PROVIDED that the aggregate price paid for
all such repurchased, redeemed, acquired or retired Equity
Interests shall not exceed $15.0 million in any twelve-month
period; and
(vi) the making and consummation of (A) a senior
subordinated asset sale offer in accordance with the
provisions of the indenture relating to the 2005 Senior
Subordinated Notes or (B) a Change of Control Offer with
respect to the Senior Subordinated Notes in accordance with
the provisions of the Senior Subordinated Notes Indenture or
change of control offer with respect to the 2005 Senior
Subordinated Notes or the 2005 Exchangeable Subordinated
Notes in accordance with the provisions of the indentures
relating thereto.
Not later than the date of making any Restricted
Payment, the Company shall deliver to the Trustee an Officers'
Certificate stating that such Restricted Payment is permitted and
setting forth the basis upon which the calculations required by
this covenant were computed.
SECTION 3.08. LIMITATIONS ON DIVIDEND AND OTHER PAYMENT
RESTRICTIONS AFFECTING SUBSIDIARIES.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise
cause or suffer to exist or become effective any consensual
Transfer Restriction, except for such Transfer Restrictions
existing under or by reason of:
(a) Existing Indebtedness as in effect on the date
hereof,
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(b) this Indenture,
(c) applicable law,
(d) any instrument governing Indebtedness or Capital
Stock of a Person acquired by the Company or any of its
Subsidiaries as in effect at the time of such acquisition
(except to the extent such Indebtedness was incurred in
connection with or in contemplation of such acquisition,
unless such Indebtedness was incurred in connection with or
in contemplation of such acquisition for the purpose of
refinancing Indebtedness which was tax-exempt, or in
violation of Section 3.09 hereof), 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 the Consolidated Cash Flow of such Person
shall not be taken into account in determining whether such
acquisition was permitted by the terms hereof except to the
extent that such Consolidated Cash Flow would be permitted
to be dividends to the Company without the prior consent or
approval of any third party,
(e) customary non-assignment provisions in leases
entered into in the ordinary course of business,
(f) purchase money obligations for property acquired
in the ordinary course of business that impose restrictions
on the ability of any of the Company's Subsidiaries to
transfer the property so acquired to the Company or any of
its Subsidiaries,
(g) Permitted Refinancing Indebtedness, PROVIDED that
the restrictions contained in the agreements governing such
Permitted Refinancing Indebtedness are no more restrictive
than those contained in the agreements governing the
Indebtedness being refinanced, or
(h) the New Credit Facility and related documentation
as the same is in effect on the date hereof and as amended
or replaced from time to time, PROVIDED that no such
amendment or replacement is more restrictive as to Transfer
Restrictions than the New Credit Facility and related
documentation as in effect on the date hereof.
SECTION 3.09. LIMITATIONS ON INCURRENCE OF INDEBTEDNESS AND
ISSUANCE OF PREFERRED STOCK.
The Company shall not, and shall not permit any of its
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") after the date hereof any Indebtedness (including
Acquired Debt), and the Company shall not issue any Disqualified
Stock and shall not permit any of its Subsidiaries to issue any
shares of preferred stock; PROVIDED, HOWEVER, that the Company
may incur Indebtedness (including Acquired Debt) and the Company
may issue shares of Disqualified Stock 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 2.5 to 1, 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 Disqualified Stock had been issued, as the case may be, at
the beginning of such four-quarter period. Indebtedness
consisting of reimbursement obligations in respect of a letter of
credit shall be deemed to be incurred when the letter of credit
is first issued.
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The foregoing provisions shall not apply to:
(a) the incurrence by the Company of Indebtedness
pursuant to the New Credit Facility in an aggregate
principal amount at any time outstanding not to exceed an
amount equal to $2.5 billion less the aggregate amount of
all mandatory repayments applied to permanently reduce the
commitments with respect to such Indebtedness;
(b) the incurrence by the Company of Indebtedness
represented by the Securities;
(c) the incurrence by the Company and its Subsidiaries
of the Existing Indebtedness;
(d) the incurrence by the Company or any of its
Subsidiaries of Permitted Refinancing Indebtedness in
exchange for, or the net proceeds of which are used to
extend, refinance, renew, replace, defease, or refund,
Indebtedness that was permitted by this Indenture to be
incurred (including, without limitation, Existing
Indebtedness);
(e) the incurrence by the Company of Hedging
Obligations that are incurred for the purpose of fixing or
hedging interest rate or currency risk with respect to any
fixed or floating rate Indebtedness that is permitted by the
terms hereof to be outstanding or any receivable or
liability the payment of which is determined by reference to
a foreign currency; PROVIDED that the notional principal
amount of any such Hedging Obligation does not exceed the
principal amount of the Indebtedness to which such Hedging
Obligation relates;
(f) the incurrence by the Company or any of its
Subsidiaries of Physician Support Obligations;
(g) the incurrence by the Company or any of its
Subsidiaries of intercompany Indebtedness between or among
the Company and any of its Subsidiaries;
(h) the incurrence by the Company or any of its
Subsidiaries of Indebtedness represented by tender, bid,
performance, government contract, surety or appeal, bonds,
standby letters of credit or warranty or contractual service
obligations of like nature, in each case to the extent
incurred in the ordinary course of business of the Company
or such Subsidiary;
(i) the incurrence by any Subsidiary of the Company of
Indebtedness, the aggregate principal amount of which,
together with all other Indebtedness of the Company's
Subsidiaries at the time outstanding (excluding the Existing
Indebtedness until repaid or refinanced and excluding
Physician Support Obligations), does not exceed the greater
of (1) 10% of the Company's Stockholders' Equity as of the
date of incurrence or (2) $10.0 million; PROVIDED that, in
the case of clause (1) only, 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
Indebtedness is incurred would have been at least 2.5 to 1
determined on a PRO FORMA basis (including a PRO FORMA
application of the net proceeds therefrom), as if such
Indebtedness had been incurred at the beginning of such
four-quarter period; and
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(j) the incurrence by the Company of Indebtedness (in
addition to Indebtedness permitted by any other clause of
this paragraph) in an aggregate principal amount at any time
outstanding not to exceed $250.0 million.
SECTION 3.10. LIMITATIONS ON TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its
Subsidiaries to, sell, lease, transfer or otherwise dispose of
any of its properties or assets to, or purchase any property or
assets from, or enter into or make any contract, agreement,
understanding, loan, advance or Guarantee with, or for the
benefit of, any Affiliate (each of the foregoing, an "AFFILIATE
TRANSACTION") unless (i) such Affiliate Transaction is on terms
that are no less favorable to the Company or the relevant
Subsidiary than those that could have been obtained in a
comparable transaction by the Company or such Subsidiary with an
unrelated Person and (ii) the Company delivers to the Trustee (a)
with respect to any Affiliate Transaction 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 clause
(i) above and that such Affiliate Transaction was approved by a
majority of the disinterested members of the Board of Directors
and (b) with respect to any Affiliate Transaction involving
aggregate consideration in excess of $15.0 million, an opinion as
to the fairness of such Affiliate Transaction to the Company or
such Subsidiary from a financial point of view issued by an
investment banking firm of national standing; PROVIDED that (x)
transactions or payments pursuant to any employment arrangements
or employee or director benefit plans entered into by the Company
or any of its Subsidiaries in the ordinary course of business and
consistent with the past practice of the Company or such
Subsidiary, (y) transactions between or among the Company and/or
its Subsidiaries and (z) transactions permitted under Section
3.07 hereof, in each case, shall not be deemed to be Affiliate
Transactions.
SECTION 3.11. LIMITATIONS ON LIENS.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly create, incur, assume or
suffer to exist any Lien (except Permitted Liens) on any asset
now owned or hereafter acquired, or any income or profits
therefrom or assign or convey any right to receive income
therefrom unless all payments due hereunder and under the
Securities are secured on an equal and ratable basis with the
Obligations so secured until such time as such Obligations are no
longer secured by a Lien.
SECTION 3.12. CHANGE OF CONTROL.
Upon the occurrence of a Change of Control Triggering
Event, each Holder of Securities shall have the right to require
the Company to repurchase all or any part (equal to $1,000 or an
integral multiple thereof) of such Holder's Securities pursuant
to the offer described below (the "CHANGE OF CONTROL OFFER") at
an offer price in cash equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest, if any, thereon
to the date of purchase (the "CHANGE OF CONTROL PAYMENT") on a
date that is not more than 90 days after the occurrence of such
Change of Control Triggering Event (the "CHANGE OF CONTROL
PAYMENT DATE").
Within 30 days following any Change of Control
Triggering Event, the Company shall mail, or at the Company's
request the Trustee shall mail, a notice of a Change of Control
to each Holder (at its last registered address with a copy to the
Trustee and the Paying Agent) offering to repurchase the
Securities held by such Holder pursuant to the procedure
specified in such notice. The Change of Control Offer shall
remain open from the time of mailing until the close of business
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on the Business Day next preceding the Change of Control Payment
Date. The notice, which shall govern the terms of the Change of
Control Offer, shall contain all instructions and materials
necessary to enable the Holders to tender Securities pursuant to
the Change of Control Offer and shall state:
(1) that the Change of Control Offer is being made
pursuant to this Section 3.12 and that all Securities
tendered will be accepted for payment;
(2) the Change of Control Payment and the Change of
Control Payment Date, which date shall be no earlier than 30
days nor later than 60 days from the date such notice is
mailed;
(3) that any Security not tendered will continue to
accrue interest in accordance with the terms of this
Indenture;
(4) that, unless the Company defaults in the payment
of the Change of Control Payment, all Securities accepted
for payment pursuant to the Change of Control Offer will
cease to accrue interest after the Change of Control Payment
Date;
(5) that Holders electing to have a Security purchased
pursuant to any Change of Control Offer will be required to
surrender the Security, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Security
completed, to the Company, a depositary, if appointed by the
Company, or a Paying Agent at the address specified in the
notice prior to the close of business on the Business Day
next preceding the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their
election if the Company, depositary or Paying Agent, as the
case may be, receives, not later than the close of business
on the Business Day next preceding the Change of Control
Payment Date, a facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the
Security the Holder delivered for purchase, and a statement
that such ▇▇▇▇▇▇ is withdrawing his election to have such
Security purchased;
(7) that Holders whose Securities are being purchased
only in part will be issued new Securities equal in
principal amount to the unpurchased portion of the
Securities surrendered, which unpurchased portion must be
equal to $1,000 in principal amount or an integral multiple
thereof; and
(8) the circumstances and relevant facts regarding
such Change of Control (including, but not limited to,
information with respect to PRO FORMA historical financial
information after giving effect to such Change of Control,
information regarding the Person or Persons acquiring
control and such Person's or Persons' business plans going
forward) and any other information that would be material to
a decision as to whether to tender a Security pursuant to
the Change of Control Offer.
On the Change of Control Payment Date, the Company
shall, to the extent lawful, (i) accept for payment all
Securities or portions thereof properly tendered and not
withdrawn pursuant to the Change of Control Offer, (ii) deposit
with the Paying Agent an amount equal to the Change of Control
Payment in respect of all Securities or portions thereof so
tendered and (iii) deliver or cause to be delivered to the
Trustee the Securities so accepted together with an Officers'
Certificate stating the aggregate principal amount of Securities
or portions thereof being purchased by the Company.
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The Paying Agent shall promptly mail to each Holder of Securities
so tendered the Change of Control Payment for such Securities,
and the Trustee shall promptly authenticate and mail (or cause to
be transferred by book entry) to each Holder a new Security equal
in principal amount to any unpurchased portion of the Securities
surrendered, if any; PROVIDED that each such new Security shall
be in a principal amount of $1,000 or an integral multiple
thereof. The Company shall publicly announce the results of the
Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.
The Company shall comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations
are applicable in connection with the repurchase of Securities as
a result of a Change of Control.
SECTION 3.13. CORPORATE EXISTENCE.
Subject to Section 3.12 and Article 4 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 of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to
time) of each Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of the Company and its
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 of its
Subsidiaries, 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 Subsidiaries, taken as a whole,
and that the loss thereof is not adverse in any material respect
to the Holders.
SECTION 3.14. LINE OF BUSINESS.
The Company shall not, and shall not permit any of its
Subsidiaries to, engage in any material extent in any business
other than the ownership, operation and management of Hospitals
and Related Businesses.
SECTION 3.15. LIMITATIONS ON ISSUANCES OF GUARANTEES OF
INDEBTEDNESS BY SUBSIDIARIES.
The Company shall not permit any Subsidiary, directly
or indirectly, to Guarantee or secure the payment of any other
Indebtedness of the Company or any of its Subsidiaries (except
Indebtedness of a Subsidiary of such Subsidiary or Physician
Support Obligations) unless such Subsidiary simultaneously
executes and delivers a supplemental indenture to this Indenture,
in substantially the form attached hereto as Exhibit B, providing
for the Guarantee of the payment of the Securities by such
Subsidiary, which Guarantee shall be senior to or PARI PASSU with
such Subsidiary's Guarantee of or pledge to secure such other
Indebtedness. Any such Guarantee by a Subsidiary of the
Securities shall provide by its terms that it shall be
automatically and unconditionally released and discharged upon
the sale or other disposition, by way of merger or otherwise, to
any Person not an Affiliate of the Company, of all of the
Company's stock in, or all or substantially all the assets of,
such Subsidiary. The foregoing provisions shall not be
applicable to any one or more Guarantees that otherwise would be
prohibited of up to $25.0 million in aggregate principal amount
of Indebtedness of the Company or its Subsidiaries at any time
outstanding.
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SECTION 3.16. NO AMENDMENT TO SUBORDINATION PROVISIONS OF SENIOR
SUBORDINATED NOTE INDENTURE.
The Company shall not amend, modify or alter the Senior
Subordinated Note Indenture or the indentures relating to the
2005 Senior Subordinated Notes or the 2005 Exchangeable
Subordinated Notes in any way that would (i) increase the
principal of, advance the final maturity date of or shorten the
Weighted Average Life to Maturity of (a) any 2005 Senior
Subordinated Notes or 2005 Exchangeable Subordinated Notes or (b)
any Senior Subordinated Notes such that the final maturity date
of the Senior Subordinated Notes is earlier than the 91st day
following the final maturity date of the Senior Notes or (ii)
amend the provisions of Article 10 of the Senior Subordinated
Note Indenture (which relates to subordination) or the
subordination provisions of the indentures relating to the 2005
Senior Subordinated Notes or the 2005 Exchangeable Subordinated
Notes or any of the defined terms used therein in a manner that
would be adverse to the Holders of the Securities.
ARTICLE 4
SUCCESSORS
SECTION 4.01. LIMITATIONS ON MERGERS, CONSOLIDATIONS OR SALES OF
ASSETS.
The Company may not consolidate or merge with or into
(whether or not the Company is the surviving corporation), or
sell, assign, transfer, lease, convey or otherwise dispose of all
or substantially all of its properties or assets in one or more
related transactions, to another corporation, Person or entity
unless:
(i) the Company is the surviving corporation or the
entity or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation
organized or existing under the laws of the United States,
any state thereof or the District of Columbia;
(ii) the entity or Person formed by or surviving any
such consolidation or merger (if other than the Company) or
the entity or Person to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have
been made assumes all the Obligations of the Company under
this Indenture and the Securities pursuant to a supplemental
indenture in a form reasonably satisfactory to the Trustee;
(iii) immediately after such transaction no Default or
Event of Default exists; and
(iv) the Company or the entity or Person formed by or
surviving any such consolidation or merger (if other than
the Company), or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made
(A) shall have Consolidated Net Worth immediately after the
transaction equal to or greater than the Consolidated Net
Worth of the Company immediately preceding the transaction
and (B) shall, at the time of such transaction and after
giving PRO FORMA effect thereto as if such transaction had
occurred at the beginning of the applicable four-quarter
period, be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in the first paragraph of Section 3.09
hereof.
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The Company shall deliver to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate
to the foregoing effect and an Opinion of Counsel, covering
clauses (i) through (iv) above, stating that the proposed
transaction and such supplemental indenture comply with this
Indenture. The Trustee shall be entitled to conclusively rely
upon such Officers' Certificate and Opinion of Counsel.
SECTION 4.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale,
assignment, transfer, lease, conveyance or other disposition of
all or substantially all of the assets of the Company in
accordance with Section 4.01 hereof, the successor corporation
formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, lease,
conveyance or other disposition is made shall succeed to, and be
substituted for (so that from and after the date of such
consolidation, merger, sale, assignment, transfer, lease,
conveyance or other disposition, the provisions of this Indenture
referring to the "Company" shall refer instead to the successor
corporation), and may exercise every right and power of, the
Company under this Indenture with the same effect as if such
successor Person has been named as the Company, herein.
ARTICLE 5
DEFAULTS AND REMEDIES
SECTION 5.01. EVENTS OF DEFAULT.
Each of the following constitutes an "EVENT OF
DEFAULT":
(i) default for 30 days in the payment when due of
interest on the Securities;
(ii) default in payment when due of the principal of or
premium, if any, on the Securities at maturity or otherwise;
(iii) failure by the Company to comply with the
provisions of Sections 3.07, 3.09 or 3.12 hereof;
(iv) failure by the Company to comply with any other
covenant or agreement in the Indenture or the Securities for
the period and after the notice specified below;
(v) any default that occurs 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 Significant
Subsidiaries (or the payment of which is Guaranteed by the
Company or any of its Significant Subsidiaries), whether
such Indebtedness or Guarantee exists on the date hereof or
is created after the date hereof, which default (a)
constitutes 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 that has been so accelerated, aggregates $25.0
million or more;
(vi) failure by the Company or any of its Significant
Subsidiaries to pay a final judgment or final judgments
aggregating in excess of $25.0 million entered by a court or
courts of competent jurisdiction against the Company or any
of its Significant Subsidiaries if
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such final judgment or judgments remain unpaid or
undischarged for a period (during which execution shall not
be effectively stayed) of 60 days after their entry;
(vii) the Company or any Significant Subsidiary
thereof pursuant to or within the meaning of any Bankruptcy
Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief
against it in an involuntary case in which it is the
debtor,
(c) consents to the appointment of a 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 generally to
pay its debts as the same become due; and
(viii) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(a) is for relief against the Company or any
Significant Subsidiary thereof in an involuntary case
in which it is the debtor,
(b) appoints a Custodian of the Company or any
Significant Subsidiary thereof or for all or
substantially all of the property of the Company or any
Significant Subsidiary thereof, or
(c) orders the liquidation of the Company or any
Significant Subsidiary thereof, and the order or decree
remains unstayed and in effect for 60 days.
The term "BANKRUPTCY LAW" means title 11, U.S. Code or
any similar federal or state law for the relief of debtors. The
term "CUSTODIAN" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
A Default under clause (iv) is not an Event of Default
until the Trustee notifies the Company in writing, or the Holders
of at least 25% in principal amount of the then outstanding
Securities notify the Company and the Trustee in writing, of the
Default and the Company does not cure the Default within 60 days
after receipt of such notice. The written notice must specify
the Default, demand that it be remedied and state that the notice
is a "NOTICE OF DEFAULT."
SECTION 5.02. ACCELERATION.
If any Event of Default (other than an Event of Default
specified in clause (vii) or (viii) of Section 5.01 hereof)
occurs and is continuing, the Trustee by notice to the Company,
or the Holders of at least 25% in aggregate principal amount of
the then outstanding Securities by written notice to the Company
and the Trustee, may declare the unpaid principal of, premium, if
any, and any accrued and unpaid interest on all the Securities to
be due and payable immediately. Upon such declaration the
principal, premium, if any, and interest shall be due and payable
immediately. If an
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Event of Default specified in clause (vii) or (viii) of Section
5.01 hereof occurs with respect to the Company or any Significant
Subsidiary thereof such an amount shall IPSO FACTO become and be
immediately due and payable without further action or notice on
the part of the Trustee or any Holder.
If an Event of Default occurs under this Indenture
prior to the maturity of the Securities by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding the prohibition on
redemption of such Securities prior to the date of maturity, then
a premium with respect thereto (expressed as a percentage of the
amount that would otherwise be due but for the provisions of this
sentence) shall become and be immediately due and payable to the
extent permitted by law upon the acceleration of such Securities
if such Event of Default occurs during the twelve-month period
beginning on January 15 of the years set forth below:
Year Percentage
---- ----------
1997.....................
1998.....................
1999.....................
2000.....................
2001.....................
2002.....................
Any determination regarding the primary purpose of any
such action or inaction, as the case may be, shall be made by and
set forth in a resolution of the Board of Directors (including
the concurrence of a majority of the independent directors of the
Company then serving) delivered to the Trustee after
consideration of the business reasons for such action or
inaction, other than the avoidance of payment of such premium or
prohibition on redemption. In the absence of fraud, each such
determination shall be final and binding upon the Holders of
Securities. Subject to Section 6.01 hereof, the Trustee shall be
entitled to rely on the determination set forth in any such
resolutions delivered to the Trustee.
SECTION 5.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of
principal or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does
not possess any of the Securities or does not produce any of them
in the proceeding. A delay or omission by the Trustee or any
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
are cumulative to the extent permitted by law.
SECTION 5.04. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate
principal amount of the Securities then outstanding by written
notice to the Trustee may on behalf of the Holders of all of the
Securities waive any existing Default or Event of Default and its
consequences under this Indenture except a continuing Default or
Event of Default in the payment of the principal of, premium, if
any, or interest
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on any Security. Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be
deemed to have been cured for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
SECTION 5.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then
outstanding Securities may 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 it. However, the
Trustee may refuse to follow any direction that conflicts with
law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders or that may involve
the Trustee in personal liability. The Trustee may take any other
action which it deems proper which is not inconsistent with any
such direction.
SECTION 5.06. LIMITATION ON SUITS.
A Holder may pursue a remedy with respect to this
Indenture or the Securities only if:
(i) the Holder gives to the Trustee written notice of
a continuing Event of Default;
(ii) the Holders of at least 25% in principal amount of
the then outstanding Securities make a written request to
the Trustee to pursue the remedy;
(iii) such Holder or Holders offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(iv) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer
and, if requested, the provision of indemnity; and
(v) during such 60-day period the Holders of a
majority in principal amount of the then outstanding
Securities do not give the Trustee a direction inconsistent
with the request.
A Holder may not use this Indenture to prejudice the
rights of another Holder or to obtain a preference or priority
over another Holder.
SECTION 5.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture,
the right of any Holder to receive payment of principal, premium,
if any, and interest on the Security, on or after the respective
due dates expressed in the Security, 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
the Holder.
SECTION 5.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 5.01(i) or
(ii) hereof 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 or any other obligor for the whole
amount of principal, premium, if any, and interest remaining
unpaid on the Securities and interest on overdue principal and,
to the extent
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lawful, interest and such further amount as shall be sufficient
to cover amounts due the Trustee under Section 6.07 hereof,
including 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 is authorized to file such proofs of claim
and other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and the Holders allowed
in any judicial proceedings relative to the Company (or any other
obligor upon the Securities), 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
6.07 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07 hereof out of the estate in any such
proceeding, shall be denied for any reason, payment of the same
shall be secured by a Lien on, and shall be paid out of, any and
all distributions, dividends, money, securities and other
properties which 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 Securities or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 5.10. PRIORITIES.
If the Trustee collects any money pursuant to this
Article, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for
amounts due under Section 6.07, including payment of all
compensation, expense and liabilities incurred, and all advances
made, by the Trustee and the costs and expenses of collection;
Second: to Holders for amounts due and unpaid on the
Securities for principal, premium, if any, and interest, ratably,
without preference or priority of any kind, according to the
amounts due and payable on the Securities for principal, 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 5.10 upon five
Business Days prior notice to the Company.
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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 the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 5.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Securities.
ARTICLE 6
TRUSTEE
SECTION 6.01. DUTIES OF TRUSTEE.
(i) 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 their exercise, as
a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.
(ii) Except during the continuance of an Event of Default known to the
Trustee:
(a) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture or the TIA and the Trustee need
perform only those duties that are specifically set forth in this
Indenture or the TIA and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee, and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, in the case of any such certificates or
opinions which by any provisions hereof are required to be furnished
to the Trustee, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements
of this Indenture.
(iii) 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:
(a) this paragraph does not limit the effect of paragraph (ii)
of this Section;
(b) 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
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(c) 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 5.05 hereof.
(iv) Whether or not therein expressly so provided every provision of
this Indenture that in any way relates to the Trustee is subject to
paragraphs (i), (ii), and (iii) of this Section.
(v) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee may
refuse to perform any duty or exercise any right or power unless it
receives security and indemnity satisfactory to it against any loss,
liability or expense.
(vi) 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.
Absent written instruction from the Company, the Trustee shall not be
required to invest any such money. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required by law.
(vii) The Trustee shall not be deemed to have knowledge of any
matter unless such matter is actually known to a Responsible Officer.
SECTION 6.02. RIGHTS OF TRUSTEE.
(i) The Trustee may conclusively rely upon any document believed by
it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(ii) 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 written 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.
(iii) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(iv) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture. A permissive right
granted to the Trustee hereunder shall not be deemed an obligation to act.
(v) 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.
SECTION 6.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or any
Affiliate of the Company with the
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same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. However, the Trustee is subject to Sections 6.10 and 6.11
hereof.
SECTION 6.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Securities, nor shall it
be accountable for the Company's use of the proceeds from the Securities or any
money paid to the Company or upon the Company's direction under any provision of
this Indenture, nor shall it be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, nor shall it be
responsible for any statement or recital herein or any statement in the
Securities or any other document in connection with the sale of the Securities
or pursuant to this Indenture other than its certificate of authentication.
SECTION 6.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders 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 on any Security, 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 6.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each December 31 beginning with the December 31
following the date hereof, the Trustee shall mail to the Holders a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but if no
event described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA Section 313(b). The Trustee shall also transmit by mail
all reports as required by TIA Section 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 Securities are listed. The Company shall promptly notify the
Trustee when the Securities are listed on any stock exchange.
SECTION 6.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation for its acceptance of this Indenture and services hereunder as the
Company and Trustee shall agree in writing. The Trustee's compensation shall
not be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee 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 against any and all losses,
liabilities, damages, claims or expenses incurred by it arising out of or in
connection with the acceptance of its duties and the administration of the
trusts under this Indenture, except as set forth below. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Company shall not relieve the Company of
its obligations hereunder. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have
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separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 6.07 shall survive
the satisfaction and discharge of this Indenture.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through its own negligence or bad
faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities. 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 5.01(vii) or (viii) 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 6.08. 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.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of a majority
in principal amount of the then outstanding Securities may remove the Trustee by
so notifying the Trustee and the Company in writing. The Company may remove the
Trustee if:
(1) the Trustee fails to comply with Section 6.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee or its
property; or
(4) 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 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 Securities may appoint
a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of at least 10% in principal amount of the then outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
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If the Trustee after written request by any Holder who has been a
Holder for at least six months fails to comply with Section 6.10 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. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, provided all sums owing
to the Trustee hereunder have been paid and subject to the Lien provided for in
Section 6.07 hereof. Notwithstanding replacement of the Trustee pursuant to this
Section 6.08, the Company's obligations under Section 6.07 hereof shall continue
for the benefit of the retiring Trustee.
SECTION 6.09. SUCCESSOR TRUSTEE OR AGENT BY MERGER, ETC.
If the Trustee or any Agent consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee or Agent.
SECTION 6.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any state thereof authorized under such laws to exercise corporate
trustee power, shall be subject to supervision or examination by federal or
state authority and shall have a combined capital and surplus of at least $100.0
million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
SECTION 6.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 7
DISCHARGE OF INDENTURE
SECTION 7.01. DEFEASANCE AND DISCHARGE OF THIS INDENTURE AND THE SECURITIES.
The Company may, at the option of its Board of Directors evidenced by
a resolution set forth in an Officers' Certificate, at any time, with respect to
the Securities, elect to have either Section 7.02 or 7.03 hereof be applied to
all outstanding Securities upon compliance with the conditions set forth below
in this Article 7.
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SECTION 7.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 7.01 hereof of the option
applicable to this Section 7.02, the Company shall be deemed to have been
discharged from its obligations with respect to all outstanding Securities on
the date the conditions set forth below are satisfied (hereinafter, "LEGAL
DEFEASANCE"). For this purpose, such Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire Indebtedness represented
by the outstanding Securities, which shall thereafter be deemed to be
"outstanding" only for the purposes of Section 7.05 hereof and the other
Sections of this Indenture referred to in clauses (i) and (ii) of this Section
7.02, and to have satisfied all its other obligations under such Securities 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: (i) the rights of Holders of outstanding Securities to
receive solely from the trust fund described in Section 7.04 hereof, and as more
fully set forth in such Section, payments in respect of the principal of,
premium, if any, and interest on such Securities when such payments are due,
(ii) the Company's obligations with respect to such Securities under Sections
2.04, 2.06, 2.07 and 3.02 hereof, (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, including, without limitation, the
Trustee's rights under Section 6.07 hereof, and the Company's obligations in
connection therewith and (iv) this Article 7. Subject to compliance with this
Article 7, the Company may exercise its option under this Section 7.02
notwithstanding the prior exercise of its option under Section 7.03 hereof with
respect to the Securities.
SECTION 7.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 7.01 hereof of the option
applicable to this Section 7.03, the Company shall be released from its
obligations under the covenants contained in Sections 3.07, 3.08, 3.09, 3.10,
3.11, 3.12, 3.14, 3.15, and 3.16 and Article 4 hereof with respect to the
outstanding Securities on and after the date the conditions set forth below are
satisfied (hereinafter, "COVENANT DEFEASANCE"), and the Securities 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
Securities shall not be deemed outstanding for accounting purposes). For this
purpose, such Covenant Defeasance means that, with respect to the outstanding
Securities, 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 5.01(iii)
hereof, but, except as specified above, the remainder of this Indenture and such
Securities shall be unaffected thereby. In addition, upon the Company's
exercise under Section 7.01 hereof of the option applicable to this Section
7.03, Sections 5.01(iv) through 5.01(vi) hereof shall not constitute Events of
Default.
SECTION 7.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section
7.02 or Section 7.03 hereof to the outstanding Securities:
(i) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 6.10 who shall agree to
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comply with the provisions of this Article 7 applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such
Securities, (a) cash in U.S. Dollars in an amount, or (b) non-callable
Government Securities that through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, cash in U.S. Dollars in
an amount, or (c) a combination thereof, in such amounts as will be sufficient,
in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge the principal of, premium, if any, and interest on
such outstanding Securities on the stated maturity date of such principal or
installment of principal, premium, if any, or interest.
(ii) In the case of an election under Section 7.02 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States confirming that (a) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (b) since the date
hereof, 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 Securities will
not recognize income, gain or loss for federal income tax purposes as a
result of such Legal Defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as would have
been the case if such Legal Defeasance had not occurred.
(iii) In the case of an election under Section 7.03 hereof before
the date that is one year prior to the final maturity of the Securities,
the Company shall have delivered to the Trustee an Opinion of Counsel in
the United States confirming that the Holders of the outstanding Securities
will not recognize income, gain or loss for federal income tax purposes as
a result of such Covenant Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if such Covenant Defeasance had not occurred.
(iv) No Default or Event of Default with respect to the Securities
shall have occurred and be 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) or, insofar as Section 5.01(vii) or 5.01(viii)
hereof is concerned, at any time in the period ending on the 91st day after
the date of such deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period).
(v) 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 of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound (other than a breach, violation or default resulting
from the borrowing of funds to be applied to such deposit).
(vi) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that after the 91st day following the deposit, the
trust funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally.
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(vii) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit made by the Company pursuant to its
election under Section 7.02 or 7.03 hereof was not made by the Company with
the intent of preferring the Holders of the Securities over the other
creditors of the Company with the intent of defeating, hindering, delaying
or defrauding creditors of the Company or others.
(viii) The Company shall have delivered to the Trustee an Officers'
Certificate stating that all conditions precedent provided for relating to
either the Legal Defeasance under Section 7.02 hereof or the Covenant
Defeasance under Section 7.03 hereof (as the case may be) have been
complied with as contemplated by this Section 7.04.
SECTION 7.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 7.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 7.05, the
"Trustee") pursuant to Section 7.04 hereof in respect of the outstanding
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities 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 Securities of all
sums due and to become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 7.04 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
Securities.
Anything in this Article 7 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the Company's
request any money or non-callable Government Securities held by it as provided
in Section 7.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
7.04(i) hereof), are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 7.06. REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Security 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 written request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the NEW YORK TIMES and THE
WALL STREET JOURNAL National edition), notice that such
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money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 7.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any U.S. Dollars or
non-callable Government Securities in accordance with Section 7.02 or 7.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 7.02 or 7.03 hereof until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance with Section 7.02 or
7.03 hereof, as the case may be; PROVIDED, HOWEVER, that, if the Company makes
any payment of principal of, premium, if any, or interest on any Security
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Security to receive such payment from the
money held by the Trustee or Paying Agent.
ARTICLE 8
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 8.01. WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee may amend or supplement this Indenture or
the Securities without the consent of any Holder:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(iii) to provide for any supplemental indenture required pursuant
to Section 3.15 hereof;
(iv) to provide for the assumption of the Company's obligations to the
Holders of the Securities in the case of a merger, consolidation or sale of
assets pursuant to Article 4 hereof;
(v) to make any change that would provide any additional rights or
benefits to the Holders of the Securities or that does not adversely affect
the legal rights hereunder of any such Holder; or
(vi) to comply with requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such supplemental indenture,
and upon receipt by the Trustee of the documents described in Section 8.06
hereof, the Trustee shall join with the Company in the execution of any
supplemental indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations which may be
therein contained, but
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the Trustee shall not be obligated to enter into such supplemental indenture
which affects its own rights, duties or immunities under this Indenture or
otherwise.
SECTION 8.02. WITH CONSENT OF HOLDERS.
Except as provided in the next succeeding paragraphs, this Indenture
or the Securities may be amended or supplemented with the consent of the Holders
of at least a majority in principal amount of the Securities then outstanding
(including consents obtained in connection with a tender offer or exchange offer
for such Securities), and any existing default or compliance with any provision
of this Indenture or the Securities may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Securities
(including consents obtained in connection with a tender offer or exchange offer
for such Securities).
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence satisfactory to the Trustee of
the consent of the Holders as aforesaid, and upon receipt by the Trustee of the
documents described in Section 8.06 hereof, the Trustee shall join with the
Company in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section 8.02 to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.
Subject to Sections 5.04 and 5.07 hereof, the Holders of a majority in aggregate
principal amount of the Securities then outstanding may waive compliance in a
particular instance by the Company with any provision of this Indenture or the
Securities. Without the consent of each Holder affected, however, an amendment
or waiver may not (with respect to any Security held by a non-consenting
Holder):
(i) reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed maturity of any
Security;
(iii) reduce the rate of or change the time for payment of
interest on any Security;
(iv) waive a Default or Event of Default in the payment of principal
of or premium, if any, or interest on the Securities (except a rescission
of acceleration of the Securities by the Holders of at least a majority in
aggregate principal amount thereof and a waiver of the payment default that
resulted from such acceleration);
(v) make any Security payable in money other than that stated in the
Securities;
(vi) make any change in Section 5.04 or 5.07 hereof; or
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(vii) make any change in this sentence of this Section 8.02.
SECTION 8.03. COMPLIANCE WITH ▇▇▇.
Every amendment to this Indenture or the Securities- shall be set
forth in a supplemental indenture that complies with the TIA as then in effect.
SECTION 8.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the consenting
▇▇▇▇▇▇'s Security, even if notation of the consent is not made on any Security.
However, any such Holder or subsequent Holder may revoke the consent as to its
Security if the Trustee receives written notice of revocation before the date
the waiver or amendment becomes effective. An amendment or waiver becomes
effective in accordance with its terms and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record date for
determining which Holders must consent to such amendment or waiver. If the
Company fixes a record date, the record date shall be fixed at (i) the later of
30 days prior to the first solicitation of such consent or the date of the most
recent list of Holders furnished to the Trustee prior to such solicitation
pursuant to Section 2.06 hereof or (ii) such other date as the Company shall
designate.
SECTION 8.05. NOTATION ON OR EXCHANGE OF SECURITIES.
The Trustee may place an appropriate notation about an amendment or
waiver on any Security thereafter authenticated. The Company in exchange for
all Securities may issue and the Trustee shall authenticate new Securities that
reflect the amendment or waiver.
Failure to make the appropriate notation or issue a new Security shall
not affect the validity and effect of such amendment or waiver.
SECTION 8.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article 8 if the amendment does not adversely affect
the rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing or refusing to sign such
amendment or supplemental indenture, the Trustee shall be entitled to receive
and, subject to Section 6.01, shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that such
amendment or Supplemental Indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it shall be valid and
binding upon the Company in accordance with its terms. The Company may not sign
an amendment or supplemental indenture until the Board of Directors approves it.
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ARTICLE 9
MISCELLANEOUS
SECTION 9.01. TIA CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), the imposed duties shall control.
SECTION 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), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the other's address:
If to the Company:
▇▇▇▇▇ Healthcare Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Treasurer
With a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
If to the Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Trustee Administration
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Unless otherwise set forth above, 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
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guaranteeing next day delivery to its address shown on the register kept by the
Registrar. Any notice or communication shall also be so mailed to any Person
described in TIA Section 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it shall not affect
its sufficiency with respect to other Holders.
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 WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
SECTION 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 this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 9.05 hereof) stating that, in the opinion of the signers,
all conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been satisfied; and
(2) an Opinion of Counsel (which shall include the statements set
forth in Section 9.05 hereof) stating that, in the opinion of such counsel,
all such conditions precedent and covenants have been satisfied.
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 Section 314(a)(4)) shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
satisfied; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been satisfied; PROVIDED, HOWEVER, that with
respect to matters of fact, an Opinion of Counsel may rely on an Officers'
Certificate or certificates of public officials.
-45-
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. LEGAL HOLIDAYS.
A "LEGAL HOLIDAY" is a Saturday, a Sunday or a day on which banking
institutions in The City of New York or at a place of payment are authorized or
obligated by law, regulation or executive order to remain closed. 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 for the intervening period.
SECTION 9.08. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
SHAREHOLDERS.
No director, officer, employee, incorporator or shareholder of the
Company, as such, shall have any liability for any obligations of the Company
under the Securities, the Indenture or for any claim based on, in respect of, or
by reason of, such obligations or their creation. Each Holder of the Securities
by accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Securities. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is against public
policy.
SECTION 9.09. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture. One
signed copy is enough to prove this Indenture.
SECTION 9.10. GOVERNING LAW.
The internal law of the State of New York, shall govern and be used to
construe this Indenture and the Securities, without regard to the conflict of
laws provisions thereof.
SECTION 9.11. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or its Subsidiaries. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 9.12. SUCCESSORS.
All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successor.
SECTION 9.13. SEVERABILITY.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any
-46-
way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
SECTION 9.14. 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 9.15. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
-47-
SIGNATURES
Dated as of January 15, 1997 ▇▇▇▇▇ HEALTHCARE CORPORATION
By:___________________________
Name:
Title:
Attest:
___________________________ (SEAL)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Dated as of January 15, 1997 THE BANK OF NEW YORK,
as Trustee
By:___________________________
Name:
Title:
Attest:
___________________________ (SEAL)
By:________________________
Authorized Signatory
-48-
EXHIBIT A
(Face of Security)
__% Senior Note
due January 15, 2003
CUSIP:
No. $____________
▇▇▇▇▇ HEALTHCARE CORPORATION
promises to pay to
______________________________________________________________
or its registered assigns, the principal sum of_______________ Dollars on
January 15, 2003.
Interest Payment Dates: January 15 and July 15, commencing July 15, 1997.
Record Dates: January 1 and July 1 (whether or not a Business Day).
[(If Security is a Global Security--) This Security is a Global Security within
the meaning of the Indenture hereinafter referred to and is registered in the
name of a Depositary or a nominee thereof. This Security may not be exchanged
in whole or in part for a Security registered, and no transfer of this Security
in whole or in part may be registered, in the name of any person other than such
Depositary or a nominee thereof, except in the limited circumstances described
in the Indenture.]
▇▇▇▇▇ HEALTHCARE CORPORATION
By: _________________________
Dated: __________, ____
(SEAL)
Trustee's Certificate of Authentication:
This is one of the Securities referred
to in the within-mentioned Indenture:
The Bank of New York, as Trustee
By: ___________________________
Authorized Signatory
A-1
(Back of Security)
__% SENIOR NOTE
due January 15, 2003
Capitalized terms used herein have the meanings assigned to them in
the Indenture (as defined below) unless otherwise indicated.
1. INTEREST. ▇▇▇▇▇ Healthcare Corporation, a Nevada corporation (the
"COMPANY"), promises to pay interest on the principal amount of this Security at
the rate and in the manner specified below.
The Company shall pay interest in cash on the principal amount of this
Security at the rate per annum of __%. The Company shall pay interest
semiannually in arrears on January 15 and July 15 of each year, commencing July
15, 1997 to Holders of record on the immediately preceding January 1 and July 1,
respectively, or if any such date of payment is not a Business Day on the next
succeeding Business Day (each an "INTEREST PAYMENT DATE").
Interest shall be computed on the basis of a 360-day year comprised of
twelve 30-day months. Interest shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of the
original issuance of the Securities. To the extent lawful, the Company shall
pay interest on overdue principal at the rate of 1% per annum in excess of the
interest rate then applicable to the Securities; it shall pay interest on
overdue installments of interest (without regard to any applicable grace
periods) at the same rate to the extent lawful.
2. METHOD OF PAYMENT. The Company shall pay interest on the Securities
(except defaulted interest) to the Persons who are registered Holders of
Securities at the close of business on the record date next preceding the
Interest Payment Date, even if such Securities are cancelled after such record
date and on or before such Interest Payment Date. The Holder hereof must
surrender this Security to a Paying Agent to collect principal payments. The
Company shall pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts.
Principal, premium, if any, and interest shall be payable at the office or
agency of the Company maintained for such purpose within the City and State of
New York or, at the option of the Company, payment of interest may be made by
check mailed to the Holder's registered address. Notwithstanding the foregoing,
all payments with respect to Securities, the Holders of which have given wire
transfer instructions, on or before the relevant record date, to the Paying
Agent shall be made by wire transfer of immediately available funds to the
accounts specified by such Holders.
3. PAYING AGENT AND REGISTRAR. Initially, the Trustee shall act as
Paying Agent and Registrar. The Company may change any Paying Agent or Registrar
or co-registrar without prior notice to any Holder. The Company and any of its
Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Securities under an Indenture,
dated as of January 15, 1997 (the "INDENTURE"), between the Company and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code Sections 77aaa-77bbbb) (the "TIA") as in effect
on the date of the Indenture. The Securities are subject to all such terms, and
Holders are referred to the Indenture and such act for a statement of such
terms. The terms of the Indenture shall govern any inconsistencies between the
Indenture and the Securities. The Securities are unsecured
A-2
general obligations of the Company. The Securities are limited to $200,000,000
in aggregate principal amount.
5. MANDATORY REDEMPTION. Subject to the Company's obligation to make an
offer to repurchase Securities under certain circumstances pursuant to Sections
3.10 and 3.13 of the Indenture (as described in paragraph 6 below), the Company
shall have no mandatory redemption or sinking fund obligations with respect to
the Securities.
6. REPURCHASE AT OPTION OF HOLDER. If there is a Change of Control
Triggering Event, the Company shall offer to repurchase on the Change of Control
Payment Date all outstanding Securities at 101% of the aggregate principal
amount thereof plus accrued and unpaid interest thereon to the Change of Control
Payment Date. Holders that are subject to an offer to purchase shall receive a
Change of Control Offer from the Company prior to any related Change of Control
Payment Date and may elect to have such Securities purchased by completing the
form entitled "Option of Holder to Elect Purchase" appearing below.
7. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in registered
form without coupons, and in denominations of $1,000 and integral multiples of
$1,000. The transfer of Securities may be registered and Securities 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 to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not exchange or register the transfer of any
Securities between a record date and the corresponding Interest Payment Date.
8. PERSONS DEEMED OWNERS. Prior to due presentment to the Trustee for
registration of the transfer of this Security, the Trustee, any Agent and the
Company may deem and treat the Person in whose name this Security is registered
as its absolute owner for the purpose of receiving payment of principal of,
premium, if any, and interest on this Security and for all other purposes
whatsoever, whether or not this Security is overdue, and neither the Trustee,
any Agent nor the Company shall be affected by notice to the contrary. The
registered Holder of a Security shall be treated as its owner for all purposes.
9. AMENDMENT, SUPPLEMENT AND WAIVERS. Except as provided in the next
succeeding paragraphs, the Indenture or the Securities may be amended or
supplemented with the consent of the Holders of at least a majority in principal
amount of the Securities then outstanding (including consents obtained in
connection with a tender offer or exchange offer for Securities) and any
existing default or compliance with any provision of the Indenture or the
Securities may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Securities (including consents obtained
in connection with a tender offer or exchange offer for Securities).
Without the consent of each Holder affected, an amendment or waiver
may not (with respect to any Security held by a non-consenting Holder of
Securities): (i) reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver, (ii) reduce the principal of or
change the fixed maturity of any Security, (iii) reduce the rate of or change
the time for payment of interest on any Security, (iv) waive a Default or Event
of Default in the payment of principal of or premium, if any, or interest on the
Securities, (except a rescission of acceleration of the Securities by the
Holders of at least a majority in aggregate principal amount thereof and a
waiver of the payment default that resulted from such acceleration), (v) make
any Security payable in money other than that stated in the Securities, (vi)
make any change in the provisions of the Indenture relating to waivers of past
Defaults or the rights of Holders of Securities to receive payments of
A-3
principal of or premium, if any, or interest on the Securities or (vii) make any
change in the foregoing amendment and waiver provisions.
Notwithstanding the foregoing, without the consent of any Holder of
Securities, the Company and the Trustee may amend or supplement the Indenture or
the Securities to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Securities in addition to or in place of certificated Securities,
to provide for any supplemental indenture required pursuant to Section 3.15 of
the Indenture, to provide for the assumption of the Company's obligations to
Holders of the Securities in the case of a merger, consolidation or sale of
assets, to make any change that would provide any additional rights or benefits
to the Holders of the Securities or that does not adversely affect the legal
rights under the Indenture of any such Holder, or to comply with requirements of
the Securities and Exchange Commission (the "COMMISSION") in order to effect or
maintain the qualification of the Indenture under the TIA.
10. DEFAULTS AND REMEDIES. Events of Default under the Indenture include:
(i) a default for 30 days in the payment when due of interest on the Securities;
(ii) a default in payment when due of the principal of or premium, if any, on
the Securities, at maturity or otherwise; (iii) a failure by the Company to
comply with the provisions described under the covenants "Limitations on
Restricted Payments," "Limitations on Incurrence of Indebtedness and Issuance of
Preferred Stock," and "Change of Control;" (iv) a failure by the Company for 60
days after notice to comply with any of its other agreements in the Indenture or
the Securities; (v) any default that occurs 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
Significant Subsidiaries (or the payment of which is Guaranteed by the Company
or any of its Significant Subsidiaries) whether such Indebtedness or Guarantee
exists on the date of the Indenture, or is created after the date of the
Indenture, which default (a) constitutes 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 that has been so accelerated, aggregates $25.0 million or more; (vi)
failure by the Company or any of its Significant Subsidiaries to pay a final
judgment or final judgments aggregating in excess of $25.0 million entered by a
court or courts or competent jurisdiction against the Company or any of its
Significant Subsidiaries if such final judgment or judgments remain unpaid or
undischarged for a period (during which execution shall not be effectively
stayed) of 60 days after their entry; and (vii) certain events of bankruptcy or
insolvency with respect to 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 aggregate principal amount of the then outstanding
Securities by written notice to the Company and the Trustee, may declare all the
Securities to be due and payable immediately (plus, in the case of an Event of
Default that is the result of willful actions (or inactions) by or on behalf of
the Company intended to avoid prohibitions on redemptions of the Securities
contained in the Indenture or the Securities, an amount of premium applicable
pursuant to the Indenture). Notwithstanding the foregoing, in the case of an
Event of Default arising from certain events of bankruptcy or insolvency with
respect to the Company or any of its Significant Subsidiaries, all outstanding
Securities shall become due and payable without further action or notice.
Holders of the Securities may not enforce the Indenture or the Securities except
as provided in the Indenture. Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding Securities may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of the Securities notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal or
interest) if it determines that withholding notice is in such Holders' interest.
A-4
The Holders of not less than a majority in aggregate principal amount
of the Securities then outstanding by written notice to the Trustee may on
behalf of the Holders of all of the Securities 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 premium on, or the
principal of, the Securities.
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.
The above description of Events of Default and remedies is qualified
by reference, and subject in its entirety, to the more complete description
thereof contained in the Indenture.
11. RESTRICTIVE COVENANTS. The Indenture imposes certain limitations on
the ability of the Company and its Subsidiaries to incur additional indebtedness
and issue preferred stock, pay dividends or make other distributions, repurchase
Equity Interests or subordinated indebtedness, create certain liens, enter into
certain transactions with affiliates, issue or sell Equity Interests of the
Company's Subsidiaries, issue Guarantees of Indebtedness by the Company's
Subsidiaries and enter into certain mergers and consolidations.
12. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the Indenture, in
its individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company or its Affiliates, and may otherwise deal
with the Company or its Affiliates, as if it were not Trustee.
13. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
SHAREHOLDERS. No director, officer, employee, incorporator or shareholder of
the Company, as such, shall have any liability for any obligations of the
Company under the Securities, the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is against public
policy.
14. AUTHENTICATION. This Security shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
15. 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).
16. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Securities and has directed the Trustee to
use CUSIP numbers as a convenience to Holders. No representation is made as to
the accuracy of such numbers either as printed on the Securities and reliance
may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Request may be made to:
A-5
▇▇▇▇▇ Healthcare Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
A-6
ASSIGNMENT FORM
To assign this Security, fill in the form below: For value received
(I) or (we) hereby sell, assign and transfer this Security to
_____________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Print or type assignee's name, address and zip code)
and do hereby irrevocably constitute and appoint ____________________________
Attorney to transfer this Security on the books of the Company with full power
of substitution in the premises.
_____________________________________________________________________________
Date: ____________________________
Your Signature:______________________________
(Sign exactly as your name appears on the face of
this Security)
Signature Guarantee.*
_____________________________
*Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
A-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Security
purchased by the Company pursuant to Section 3.12 of the Indenture, check the
box below:
/ / Section 3.12
(Change of Control)
If you want to have only part of the Security purchased by the Company
pursuant to Section 3.12 of the Indenture, state the amount you elect to have
purchased:
$ _______________
Date:____________
Your Signature:_________________________
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee.*
-----------------------------------
*Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
A-8
EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
________________, between __________________ (the "Guarantor"), a subsidiary of
▇▇▇▇▇ Healthcare Corporation (or its successor), a Nevada corporation (the
"Company"), and The Bank of New York, as trustee under the indenture referred to
below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of January 15, 1997, providing
for the issuance of an aggregate principal amount of $200,000,000 of __% Senior
Notes due 2003 (the "Securities");
WHEREAS, Section 3.15 of the Indenture provides that under certain
circumstances the Company is required to cause the Guarantor to execute and
deliver to the Trustee a supplemental indenture pursuant to which the Guarantor
shall guarantee the payment of the Securities pursuant to a Guarantee on the
terms and conditions set forth herein; and
WHEREAS, pursuant to Section 8.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor and the Trustee mutually covenant and agree for the equal and ratable
benefit of the holders of the Securities as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guarantor hereby unconditionally
guarantees to each Holder of a Security authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of the Indenture, the Securities or the Obligations
of the Company hereunder and thereunder, that: (a) the principal of, premium, if
any, and interest on the Securities will be promptly paid in full when due,
whether at maturity, by acceleration, redemption or otherwise, and interest on
the overdue principal, premium, if any, and (to the extent permitted by law)
interest on any interest on the Securities and all other payment Obligations of
the Company to the Holders or the Trustee hereunder or thereunder will be
promptly paid in full, all in accordance with the terms hereof and thereof; and
(b) in case of any extension of time of payment or renewal of any Securities or
any of such other payment Obligations, that 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, redemption or otherwise. Failing
payment when due of any amount so guaranteed for whatever reason the Guarantor
shall be obligated to pay the same immediately. An Event of Default under the
Indenture or the Securities shall constitute an event of default under this
Guarantee, and shall entitle the Holders of Securities to accelerate the
Obligations of the Guarantor hereunder in the same manner and to the same extent
as the Obligations of the Company. The Guarantor hereby agrees that its
Obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Securities or the Indenture, the absence
B-1
of any action to enforce the same, any waiver or consent by any Holder of the
Securities with respect to any provisions hereof or thereof, the recovery of any
judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of the Guarantor. The Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenant that this
Guarantee will not be discharged except by complete performance of the
Obligations contained in the Securities and the Indenture. If any Holder or the
Trustee is required by any court or otherwise to return to the Company, the
Guarantor, or any Custodian, Trustee, liquidator or other similar official
acting in relation to either the Company or the Guarantor, any amount paid by
either to the Trustee or such Holder, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. The Guarantor agrees
that it shall not be entitled to, and hereby waives, any right of subrogation in
relation to the Holders in respect of any Obligations guaranteed hereby. The
Guarantor further agrees that, as between the Guarantor, on one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity of the Obligations
guaranteed hereby may be accelerated as provided in Article 5 of the Indenture
for the purposes of this Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such Obligations as provided in Article 5 of the Indenture, such Obligations
(whether or not due and payable) shall forthwith become due and payable by the
Guarantor for the purpose of this Guarantee.
3. EXECUTION AND DELIVERY OF GUARANTEE. To evidence its Guarantee set
forth in Section 2, the Guarantor hereby agrees that a notation of such
Guarantee substantially in the form of EXHIBIT A shall be endorsed by an officer
of such Guarantor on each Security authenticated and delivered by the Trustee
and that this Supplemental Indenture shall be executed on behalf of such
Guarantor, by manual or facsimile signature, by its President or one of its Vice
Presidents.
The Guarantor hereby agrees that its Guarantee set forth in Section 2
shall remain in full force and effect notwithstanding any failure to endorse on
each Security a notation of such Guarantee.
If an Officer whose signature is on this Supplemental Indenture or on
the Guarantee no longer holds that office at the time the Trustee authenticates
the Security on which a Guarantee is endorsed, the Guarantee shall be valid
nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of the Guarantors.
4. GUARANTORS MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) Except as set forth in Articles 3 and 4 of the Indenture, nothing
contained in this Supplemental Indenture or in the Securities shall prevent any
consolidation or merger of the Guarantor with or into the Company or any
Subsidiary of the Company that has executed and delivered a supplemental
indenture substantially in the form hereof or shall prevent any sale or
conveyance of the property of the Guarantor as an entirety or substantially as
an entirety, to the Company or any such Subsidiary of the Company.
B-2
(b) Except as provided in Section 4(a) hereof or in a transaction
referred to in Section 5 hereof, the Guarantor shall not consolidate with or
merge with or into, or sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its assets to, another Person unless (1)
either (x) the Guarantor shall be the surviving Person of such merger or
consolidation or (y) the surviving Person or transferee is a corporation,
partnership or trust organized and existing under the laws of the United States,
any state thereof or the District of Columbia and such surviving Person or
transferee shall expressly assume all the obligations of the Guarantor under
this Guarantee and the Indenture pursuant to a supplemental indenture
substantially in the form hereof; (2) immediately after giving effect to such
transaction (including the incurrence of any Indebtedness incurred or
anticipated to be incurred in connection with such transaction) no Default or
Event of Default shall have occurred and be continuing; and (3) the Company has
delivered to the Trustee an Officers' Certificate and Opinion of Counsel, each
stating that such consolidation, merger or transfer complies with the Indenture,
that the surviving Person agrees to be bound thereby, and that all conditions
precedent in the Indenture relating to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of related transactions) of all or
substantially all of the properties and assets of one or more Subsidiaries of
the Guarantor, the Capital Stock of which constitutes all or substantially all
of the properties and assets of the Guarantor, shall be deemed to be the
transfer of all or substantially all of the properties and assets of the
Guarantor.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Guarantor in accordance with this Section 4(b) hereof, the successor
corporation 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
corporation thereupon may cause to be signed any or all of the Guarantees to be
endorsed upon all of the Securities issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Trustee. All
Guarantees so issued shall in all respects have the same legal rank and benefit
under the Indenture as the Guarantees theretofore and thereafter issued in
accordance with the terms of the Indenture as though all of such Guarantees had
been issued at the date of the execution hereof.
5. RELEASES FOLLOWING SALE OF ASSETS. Concurrently with any sale, lease,
conveyance or other disposition (by merger, consolidation or otherwise) of
assets of the Guarantor (including, if applicable, disposition of all of the
Capital Stock of the Guarantor), any Liens in favor of the Trustee in the assets
sold, leased, conveyed or otherwise disposed of shall be released. If the
assets sold, leased, conveyed or otherwise disposed of (by merger, consolidation
or otherwise) include all or substantially all of the assets of the Guarantor or
all of the Capital Stock of the Guarantor in each case, in compliance with the
terms of the Indenture, then the Guarantor shall be automatically and
unconditionally released from and relieved of its Obligations under its
Guarantee. Upon delivery by the Company to the Trustee of an Officers'
Certificate to the effect that such sale, lease, conveyance or other disposition
was made by the Company in accordance with the provisions of the Indenture, the
Trustee shall execute any documents reasonably required in order to evidence the
release of the Guarantor from its Obligations under its Guarantee.
6. LIMITATION ON GUARANTOR LIABILITY. For purposes hereof, the
Guarantor's liability will be that amount from time to time equal to the
aggregate liability of the Guarantor hereunder, but shall be limited to the
lesser of (i) the aggregate amount of the Obligations of the Company under the
Securities and the Indenture and (ii) the amount, if any, which would not have
(A) rendered the Guarantor "insolvent" (as such term is defined in the federal
Bankruptcy Law and in the Debtor and Creditor Law of the State of New York) or
(B) left it with unreasonably small capital at the time its
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Guarantee of the Securities was entered into, after giving effect to the
incurrence of existing Indebtedness immediately prior to such time; PROVIDED
that it shall be a presumption in any lawsuit or other proceeding in which the
Guarantor is a party that the amount guaranteed pursuant to its Guarantee is the
amount set forth in clause (i) 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 such a lawsuit that the aggregate liability
of the Guarantor is limited to the amount set forth in clause (ii). In making
any determination as to the solvency or sufficiency of capital of the Guarantor
in accordance with the previous sentence, the right of the Guarantor to
contribution from other Subsidiaries of the Company that have executed and
delivered a supplemental indenture substantially in the form hereof and any
other rights the Guarantor may have, contractual or otherwise, shall be taken
into account.
7. "TRUSTEE" TO INCLUDE PAYING AGENT. In case at any time any Paying
Agent other than the Trustee shall have been appointed by the Company and be
then acting under the Indenture, the term "Trustee" as used in this Supplemental
Indenture shall in each case (unless the context shall otherwise require) be
construed as extending to and including such Paying Agent within its meaning as
fully and for all intents and purposes as if such Paying Agent were named in
this Supplemental Indenture in place of the Trustee.
8. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Guarantor, as such, shall have any liability
for any obligations of the Company or the Guarantor under the Securities, any
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of the Securities by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Securities. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Commission that such a waiver
is against public policy.
9. NEW YORK LAW TO GOVERN. The internal law of the State of New York
shall govern and be used to construe this Supplemental Indenture.
10. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
11. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: _________________ ___, ____
[Guarantor]
By: ______________________________
Name:
Title:
B-4
The Bank of New York,
as Trustee
By: ______________________________
Name:
Title:
B-5
EXHIBIT A TO SUPPLEMENTAL INDENTURE
GUARANTEE
The Guarantor hereby unconditionally guarantees to each Holder of a
Security authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of the
Indenture, the Securities or the Obligations of the Company to the Holders or
the Trustee under the Securities or under the Indenture, that: (a) the principal
of, and premium, if any, and interest on the Securities will be promptly paid in
full when due, whether at maturity, by acceleration, redemption or otherwise,
and interest on overdue principal, premium, if any, and (to the extent permitted
by law) interest on any interest on the Securities and all other payment
Obligations of the Company to the Holders or the Trustee under the Indenture or
under the Securities will be promptly paid in full, all in accordance with the
terms thereof; and (b) in case of any extension of time of payment or renewal of
any Securities or any of such other payment Obligations, the same will be
promptly paid in full when due in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration, redemption or otherwise.
Failing payment when due of any amount so guaranteed, for whatever reason, the
Guarantor shall be obligated to pay the same immediately.
The obligations of the Guarantor to the Holders of Securities and to
the Trustee pursuant to this Guarantee and the Indenture are expressly set forth
in a Supplemental Indenture, dated as of _________ __, ____ to the Indenture,
and reference is hereby made to the Indenture, as supplemented, for the precise
terms of this Guarantee.
This is a continuing Guarantee and shall remain in full force and
effect and shall be binding upon the Guarantor and its respective successors and
assigns to the extent set forth in the Indenture until full and final payment of
all of the Company's Obligations under the Securities and the Indenture and
shall inure to the benefit of the successors and assigns of the Trustee and the
Holders of Securities and, in the event of any transfer or assignment of rights
by any Holder of Securities or the Trustee, the rights and privileges herein
conferred upon that party shall automatically extend to and be vested in such
transferee or assignee, all subject to the terms and conditions hereof. This a
Guarantee of payment and not a guarantee of collection.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Security upon which this Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized signatories.
For purposes hereof, the Guarantor's liability will be that amount
from time to time equal to the aggregate liability of the Guarantor hereunder,
but shall be limited to the lesser of (i) the aggregate amount of the
Obligations of the Company under the Securities and the Indenture and (ii) the
amount, if any, which would not have (A) rendered the Guarantor "insolvent" (as
such term is defined in the federal Bankruptcy Law and in the Debtor and
Creditor Law of the State of New York) or (B) left it with unreasonably small
capital at the time its Guarantee of the Securities was entered into, after
giving effect to the incurrence of existing Indebtedness immediately prior to
such time; PROVIDED that it shall be a presumption in any lawsuit or other
proceeding in which the Guarantor is a party that the amount guaranteed pursuant
to its Guarantee is the amount set forth in clause (i) 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 such a
lawsuit that the aggregate liability of the Guarantor is limited to the amount
set forth in clause (ii). The Indenture provides that, in making any
determination as to the solvency or sufficiency of capital of a Guarantor in
accordance with the
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previous sentence, the right of the Guarantor to contribution from other
Subsidiaries of the Company that have become Guarantors and any other rights the
Guarantor may have, contractual or otherwise, shall be taken into account.
Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
[GUARANTOR]
By:_________________________
Name:
Title:
B-7