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EXHIBIT 10.5
ADVANCE PARADIGM, INC.
$200,000,000
SENIOR SUBORDINATED NOTES DUE 2010
INDENTURE
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Dated as of October 2, 2000
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Trustee
U.S. Trust Company of Texas, N.A.
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TRUST INDENTURE ACT CROSS-REFERENCE TABLE*
Trust Indenture Act Section Indenture Section
310(a)(1)................................................................................7.10
(a)(2)...................................................................................7.10
(a)(3)...................................................................................N.A.
(a)(4)...................................................................................N.A.
(a)(5)...................................................................................7.10
(b) .....................................................................................7.10
(c) .....................................................................................N.A.
311(a)...................................................................................7.11
(b)......................................................................................7.11
(i)(c)...................................................................................N.A.
312(a)...................................................................................2.05
(b)......................................................................................13.03
(c)......................................................................................13.03
313(a)...................................................................................7.06
(b)(2)...................................................................................7.07
(c)......................................................................................7.06; 13.02
(d)......................................................................................7.06
314(a)...................................................................................4.03; 13.02
(c)(1)...................................................................................13.04
(c)(2)...................................................................................13.04
(c)(3)...................................................................................N.A.
(e)......................................................................................13.05
(f)......................................................................................N.A.
315(a)...................................................................................7.01
(b) .....................................................................................7.05; 13.02
(A)(c)...................................................................................7.01
(d)......................................................................................7.01
(e)......................................................................................6.11
316(a)(last sentence)....................................................................2.09
(a)(1)(A)................................................................................6.05
(a)(1)(B)................................................................................6.04
(a)(2)...................................................................................N.A.
(b) .....................................................................................6.07
(c)......................................................................................2.12
317(a)(1)................................................................................6.08
(a)(2)...................................................................................6.09
(b) .....................................................................................2.04
318(a)...................................................................................13.01
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(b)......................................................................................N.A.
(c)......................................................................................12.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
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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 .......................................... 36
Section 1.03. TRUST INDENTURE ACT DEFINITIONS ............................ 36
Section 1.04. RULES OF CONSTRUCTION ...................................... 38
ARTICLE 2
THE NOTES
Section 2.01. FORM AND DATING ............................................ 38
Section 2.02. EXECUTION AND AUTHENTICATION ............................... 39
Section 2.03. REGISTRAR AND PAYING AGENT ................................. 40
Section 2.04. PAYING AGENT TO HOLD MONEY IN TRUST ........................ 41
Section 2.05. HOLDER LISTS ............................................... 41
Section 2.06. TRANSFER AND EXCHANGE ...................................... 42
Section 2.07. REPLACEMENT NOTES .......................................... 58
Section 2.08. OUTSTANDING NOTES .......................................... 59
Section 2.09. TREASURY NOTES ............................................. 59
Section 2.10. TEMPORARY NOTES ............................................ 60
Section 2.11. CANCELLATION ............................................... 60
Section 2.12. DEFAULTED INTEREST ......................................... 60
Section 2.13. CUSIP NUMBERS .............................................. 61
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. NOTICES TO TRUSTEE ......................................... 61
Section 3.02. SELECTION OF NOTES TO BE REDEEMED .......................... 61
Section 3.03. NOTICE OF REDEMPTION ....................................... 62
Section 3.04. EFFECT OF NOTICE OF REDEMPTION ............................. 63
Section 3.05. DEPOSIT OF REDEMPTION PRICE ................................ 63
Section 3.06. NOTES REDEEMED IN PART ..................................... 63
Section 3.07. OPTIONAL REDEMPTION ........................................ 64
Section 3.08. MANDATORY REDEMPTION ....................................... 65
Section 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS......... 65
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ARTICLE 4
COVENANTS
Section 4.01. PAYMENT OF NOTES ........................................... 67
Section 4.02. MAINTENANCE OF OFFICE OR AGENCY ............................ 68
Section 4.03. REPORTS .................................................... 68
Section 4.04. COMPLIANCE CERTIFICATE ..................................... 69
Section 4.05. TAXES ...................................................... 70
Section 4.06. STAY, EXTENSION AND USURY LAWS ............................. 70
Section 4.07. RESTRICTED PAYMENTS ........................................ 70
Section 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES ............................................... 76
Section 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED
STOCK....................................................... 79
Section 4.10. ASSET SALES ................................................ 82
Section 4.11. TRANSACTIONS WITH AFFILIATES ............................... 85
Section 4.12. LIENS ...................................................... 89
Section 4.13. CORPORATE EXISTENCE ........................................ 89
Section 4.14. OFFER TO REPURCHASE UPON CHANGE OF CONTROL ................. 90
Section 4.15. NO SENIOR SUBORDINATED DEBT ................................ 91
Section 4.16. SUBSIDIARY GUARANTEES ...................................... 92
Section 4.17. BUSINESS ACTIVITIES ........................................ 92
Section 4.18. DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES..... 93
ARTICLE 5
SUCCESSORS
Section 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS ................... 93
Section 5.02. SUCCESSOR CORPORATION SUBSTITUTED .......................... 95
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. EVENTS OF DEFAULT .......................................... 95
Section 6.02. ACCELERATION ............................................... 98
Section 6.03. OTHER REMEDIES ............................................. 98
Section 6.04. WAIVER OF PAST DEFAULTS .................................... 99
Section 6.05. CONTROL BY MAJORITY ........................................ 99
Section 6.06. LIMITATION ON SUITS ........................................ 99
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Section 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT .............. 100
Section 6.08. COLLECTION SUIT BY TRUSTEE ................................. 100
Section 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM ........................... 101
Section 6.10. PRIORITIES ................................................. 101
Section 6.11. UNDERTAKING FOR COSTS ...................................... 102
ARTICLE 7
TRUSTEE
Section 7.01. DUTIES OF TRUSTEE .......................................... 102
Section 7.02. RIGHTS OF TRUSTEE .......................................... 103
Section 7.03. INDIVIDUAL RIGHTS OF TRUSTEE ............................... 105
Section 7.04. TRUSTEE'S DISCLAIMER ....................................... 105
Section 7.05. NOTICE OF DEFAULTS ......................................... 105
Section 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES ................. 105
Section 7.07. COMPENSATION AND INDEMNITY ................................. 106
Section 7.08. REPLACEMENT OF TRUSTEE ..................................... 107
Section 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC. .......................... 108
Section 7.10. ELIGIBILITY; DISQUALIFICATION .............................. 108
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY........... 109
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.... 109
Section 8.02. LEGAL DEFEASANCE AND DISCHARGE ............................. 109
Section 8.03. COVENANT DEFEASANCE ........................................ 110
Section 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE ................. 110
Section 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS.................... 112
Section 8.06. REPAYMENT TO COMPANY ....................................... 113
Section 8.07. REINSTATEMENT .............................................. 113
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES ........................ 113
Section 9.02. WITH CONSENT OF HOLDERS OF NOTES ........................... 115
Section 9.03. COMPLIANCE WITH TRUST INDENTURE ACT ........................ 116
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Section 9.04. REVOCATION AND EFFECT OF CONSENTS .......................... 117
Section 9.05. NOTATION ON OR EXCHANGE OF NOTES ........................... 117
Section 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC. ........................... 117
ARTICLE 10
SUBORDINATION
Section 10.01. AGREEMENT TO SUBORDINATE .................................. 118
Section 10.02. [Intentionally left blank] ................................ 118
Section 10.03. LIQUIDATION; DISSOLUTION; BANKRUPTCY ...................... 118
Section 10.04. DEFAULT ON DESIGNATED SENIOR DEBT ......................... 119
Section 10.05. ACCELERATION OF NOTES ..................................... 120
Section 10.06. WHEN DISTRIBUTION MUST BE PAID OVER ....................... 120
Section 10.07. NOTICE BY COMPANY ......................................... 121
Section 10.08. SUBROGATION ............................................... 121
Section 10.09. RELATIVE RIGHTS ........................................... 121
Section 10.10. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY .............. 122
Section 10.11. DISTRIBUTION OR NOTICE TO REPRESENTATIVE .................. 122
Section 10.12. RIGHTS OF TRUSTEE AND PAYING AGENT ........................ 123
Section 10.13. AUTHORIZATION TO EFFECT SUBORDINATION ..................... 123
Section 10.14. AMENDMENTS ................................................ 123
ARTICLE 11
SUBSIDIARY GUARANTEES
Section 11.01. SUBSIDIARY GUARANTEE ...................................... 124
Section 11.02. SUBORDINATION OF SUBSIDIARY GUARANTEE ..................... 125
Section 11.03. LIMITATION ON GUARANTOR LIABILITY ......................... 126
Section 11.04. NOTATION OF SUBSIDIARY GUARANTEE .......................... 126
Section 11.05. RELEASES FOLLOWING SALE ................................... 127
ARTICLE 12
SATISFACTION AND DISCHARGE
Section 12.01. SATISFACTION AND DISCHARGE OF INDENTURE ................... 128
Section 12.02. APPLICATION OF TRUST MONEY ................................ 129
ARTICLE 13
MISCELLANEOUS
Section 13.01. TRUST INDENTURE ACT CONTROLS .............................. 129
Section 13.02. NOTICES ................................................... 129
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Section 13.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS
OF NOTES .................................................. 131
Section 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT......... 131
Section 13.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION ............. 132
Section 13.06. RULES BY TRUSTEE AND AGENTS ............................... 132
Section 13.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES
AND SHAREHOLDERS........................................... 133
Section 13.08. GOVERNING LAW ............................................. 133
Section 13.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS ............. 133
Section 13.10. SUCCESSORS ................................................ 133
Section 13.11. SEVERABILITY .............................................. 134
Section 13.12. COUNTERPART ORIGINALS ..................................... 134
Section 13.13. TABLE OF CONTENTS, HEADINGS, ETC. ......................... 134
EXHIBIT A - Form of Senior Subordinated Notes due 2010
EXHIBIT B - Form of Certificate of Transfer
EXHIBIT C - Form of Certificate of Exchange
EXHIBIT D - Form of Certificate from Acquiring Institutional Accredited
Investor
EXHIBIT E - Form of Notation of Subsidiary Guarantee on Note
EXHIBIT F - Form of Supplemental Indenture to be Delivered by Subsequent
Guarantors
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INDENTURE dated as of October 2, 2000 by and among Advance Paradigm, Inc., a
Delaware corporation, the Guarantors from time to time parties hereto and U.S.
Trust Company of Texas, N.A., a national banking association, as trustee.
The Company, the Guarantors and the Trustee (as such terms are defined herein)
agree as follows for the benefit of each other and for the equal and ratable
benefit of the Holders of $200 million aggregate principal amount of Senior
Subordinated Notes due 2010, initially bearing interest at the rate of 11% per
annum, which rate will increase to 12% per annum 18 months after the Issue Date,
and which rate will increase to 13% per annum 24 months after the Issue Date
(the "Notes" which term shall include any Series B Senior Subordinated Notes
issued pursuant to a registered exchange offer, as set forth in the Registration
Rights Agreement, as defined herein).
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 DEFINITIONS.
"144A Global Note" means a Global Note in the Form of Exhibit
A hereto bearing the Global Note Legend and the Private Placement Legend, if
applicable, and deposited with or on behalf of, and registered in the name of
the Depositary or its nominee that will be issued in a denomination equal to the
amount of Definitive Notes exchanged into Global Notes, less any amounts
exchanged into IAI Global Notes and Regulation S Global Notes.
"Acquired Debt" means, with respect to any specified Person:
(i) Indebtedness of any other Person existing at the time such
other Person is merged or consolidated with or into or became a Subsidiary of
such specified Person, whether or not such Indebtedness is incurred in
connection with, or in contemplation of, such other Person merging with or into,
or becoming a Subsidiary of, such specified Person; and
(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," 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 Stock of a Person shall be deemed to be control.
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For purposes of this definition, the terms "controlling," "controlled by" and
"under common control with" shall have correlative meanings. No Person (other
than the Company or any Subsidiary of the Company) in whom a Receivables
Subsidiary makes an Investment in connection with a Qualified Receivables
Transaction will be deemed to be an Affiliate of the Company or any of its
Subsidiaries solely by reason of such Investment.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Cedelbank that apply to such
transfer or exchange.
"Asset Sale" means:
(i) the sale, lease, conveyance or other disposition (together
with any issuance or sale pursuant to clause (ii) below, a "disposition") of any
assets or rights; provided that the disposition of all or substantially all of
the assets of the Company and its Restricted Subsidiaries taken as a whole shall
be governed by the provisions of Section 4.14 hereof and/or the provisions of
Section 5.01 hereof and not by the provisions of Section 4.10 hereof; and
(ii) the issuance of Equity Interests by any of the Company's
Restricted Subsidiaries or the sale of Equity Interests in any of the Company's
Subsidiaries.
Notwithstanding the preceding, the following items shall not
be deemed to be Asset Sales:
(a) any single transaction or series of related transactions that
involves assets, rights or Equity Interests having a fair market value
of less than the greater of (1) $1.5 million and (2) 1% of Consolidated
Cash Flow;
(b) a disposition of assets, rights or Equity Interests between or
among the Company and any Restricted Subsidiary;
(c) an issuance of Equity Interests by a Restricted Subsidiary to the
Company or to another Restricted Subsidiary;
(d) the disposition of equipment, inventory, accounts receivable or
other assets in the ordinary course of business;
(e) the disposition of cash or Cash Equivalents;
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(f) a Restricted Payment or Permitted Investment that is permitted by
the provisions of Section 4.07 hereof or any transaction that is
specifically excluded from the definition of "Restricted Payment" set
forth in Section 4.07(i)(A), (i)(B) and (i)(C);
(g) the disposition of (a) the Capital Stock of or any Investment in
any Unrestricted Subsidiary or (b) Permitted Investments made pursuant
to clause (xiii) of the definition thereof;
(h) surrender or waiver of contract rights or the settlement, release
or surrender of contract, tort or other claims of any kind;
(i) the licensing of intellectual property in the ordinary course of
business;
(j) granting of Liens not otherwise prohibited by this Indenture and
exercises of rights thereunder and transfers in lieu of foreclosures in
connection therewith;
(k) leases or subleases to third persons in the ordinary course of
business that do not interfere in any material respect with the
business of the Company or any of its Restricted Subsidiaries;
(l) dispositions of accounts receivable and related assets of the type
specified in the definition of Qualified Receivables Transaction to a
Receivables Subsidiary for the fair market value of those accounts
receivable and related assets, less amounts required to be established
as reserves and customary discounts pursuant to contractual agreements
with entities that are not Affiliates of the Company entered into as
part of a Qualified Receivables Transaction;
(m) dispositions of accounts receivable and related assets of the type
specified in the definition of Qualified Receivables Transaction (or a
fractional undivided interest therein) by a Receivables Subsidiary in a
Qualified Receivables Transaction;
(n) the substantially contemporaneous sale and leaseback of an asset
acquired after the Issue Date; provided that such sale and leaseback
occurs within 180 days after the date of the acquisition of such asset
by the Company and its Restricted Subsidiaries;
(o) the disposition of the PCS headquarters and related real estate
acquired as part of the PCS Acquisition;
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(p) the disposition of the Richardson, Texas mail service facility;
(q) leases and subleases (and licenses and sublicenses) of assets in
the ordinary course of business that are not treated as capitalized
leases on the books and records of the Company and its Restricted
Subsidiaries;
(r) any disposition of defaulted receivables that arose in the ordinary
course of business for collection; and
(s) the disposition of assets received in settlement of obligations
(including, without limitation, under any bankruptcy or similar
proceeding) owing to the Company or any Restricted Subsidiary, which
obligations were incurred in the ordinary course of business.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in
Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that, in the case of
Principals or any of their Related Parties, in calculating the beneficial
ownership of any particular "person" (as that term is used in Section 13(d)(3)
of the Exchange Act), such "person" shall be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition, and the term
Beneficial Owner shall not include any Person acting in the capacity of an
underwriter or a placement agent in connection with any offering of Capital
Stock of the Company. For purposes of this definition, the terms "Beneficially
Owns" and "Beneficially Owned" shall have corresponding meanings.
"Board of Directors" means:
(i) with respect to a corporation, the board of directors of
the corporation;
(ii) with respect to a partnership, the Board of Directors of
the general partner of the partnership;
(iii) with respect to any other Person, the board or committee
of such Person serving a similar function; and
(iv) when no Person is specified, the Board of Directors of
the Company.
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"Board Resolution" means, as to any Person, a copy of a
resolution certified pursuant to an Officers' Certificate to have been duly
adopted by the Board of Directors of such Person, and to be in full force and
effect, and if required hereunder, delivered to the Trustee.
"Broker-Dealer" has the meaning set forth in the Registration
Rights Agreement.
"Business Day" means any day other than a Legal Holiday.
"Business Guarantee" means any manufacturer rebate or
reimbursement or similar agreement, any managed pharmaceutical benefit
agreement, any retail pharmacy network contract or any customer contract under
which the Company or any of its Subsidiaries assumes a portion of the risk
associated with claims experience or guarantees a specific savings level, or any
similar or related agreement, in the case of each of the foregoing, entered into
the ordinary course of business.
"Capital Lease Obligation" means, at the time any
determination of Capital Lease Obligations is to be made, the amount of the
liability in respect of a capital lease that would at that time be required to
be capitalized on a balance sheet in accordance with GAAP.
"Capital Stock" means:
(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 of corporate
stock;
(iii) in the case of a partnership or limited liability
company, partnership or membership 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.
"Cash Equivalents" means:
(i) United States dollars;
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(ii) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or instrumentality thereof
(provided that the full faith and credit of the United States is pledged in
support of the securities) having maturities of not more than one year from the
date of acquisition;
(iii) certificates of deposit, demand and time deposits (or
with respect to foreign banks, similar instruments), eurodollar time deposits,
bankers' acceptances with maturities not exceeding one year and overnight bank
deposits, in each case, with any lender party to the Credit Agreement or with
any domestic commercial bank or any U.S. branch of a foreign bank having capital
and surplus in excess of $500.0 million or any commercial bank organized under
the laws of any other country having total assets in excess of $500.0 million
with a maturity date not more than two years from the date of acquisition;
(iv) repurchase obligations with a term of not more than one
year for underlying securities of the types described in clauses (ii) and (iii)
above entered into with any financial institution meeting the qualifications
specified in clause (iii) above;
(v) commercial paper having one of the two highest ratings
obtainable from ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") or Standard & Poor's
Rating Services ("S&P") and in each case maturing within one year after the date
of acquisition;
(vi) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or any
public instrumentality thereof having one of the two highest ratings obtainable
from Moody's and S&P and maturing within one year from the date of acquisition
thereof; and
(vii) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (i) through (vi)
of this definition.
"Cedelbank" means Cedelbank, a limited liability company ( a
societe anonyme) organization under Luxembourg law.
"Change of Control" means the occurrence of any of the
following:
(i) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a series
of related transactions, of all or substantially all of the properties or assets
of the Company and its Restricted Subsidiaries taken as a whole to any "person"
or "group" (as such terms are used in Section 13(d)(3) and 14(d) of the Exchange
Act) other than to a Principal or a Related Party of a Principal;
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(ii) the adoption of a plan relating to the liquidation or
dissolution of the Company;
(iii) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" or "group" (as defined above), other than the Principals and their
Related Parties, becomes the Beneficial Owner, directly or indirectly, of more
than 40% of the Capital Stock or Voting Stock of the Company, measured by voting
power rather than number of shares; or
(iv) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Non-Class B Directors
(together with any new Non-Class B Directors whose election by the Board of
Directors or whose nomination for election by the stockholders of the Company
was approved by a vote of a majority of the Non-Class B Directors then still in
office who were either Non-Class B Directors at the beginning of such period or
whose election or nomination for election was previously approved) cease to
constitute a majority of the Non-Class B Directors then in office.
"Company" means Advance Paradigm, Inc., a Delaware
corporation, and any and all successors thereto.
"Consolidated Cash Flow" means, with respect to any specified
Person for any period, the Consolidated Net Income of such Person for such
period plus:
(i) an amount equal to any extraordinary gain or loss and any
net gain or loss realized by such Person or any of its Restricted Subsidiaries
in connection with an Asset Sale, to the extent that such gains or losses were
utilized in computing such Consolidated Net Income; plus
(ii) provision for taxes based on income or profits of such
Person and its Restricted Subsidiaries for such period, to the extent that
provision for taxes was deducted in computing such Consolidated Net Income; plus
(iii) consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued and whether or
not capitalized (including, without limitation, amortization of debt issuance
costs and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of all
payments associated with Capital Lease Obligations, commissions, discounts and
other fees and charges incurred in respect of letter of credit or bankers'
acceptance or receivables financings and net of the effect of all payments made
or received pursuant to Hedging Obligations), to the extent that any such
expense was deducted in computing Consolidated Net Income; plus
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(iv) fees, costs, charges and expenses incurred in connection
with the PCS Acquisition; plus
(v) depreciation, amortization (including amortization of
goodwill and other intangibles but excluding amortization of prepaid cash
expenses that were paid in a prior period) and other non-cash expenses and items
(excluding any such non-cash expense to the extent that it represents an accrual
of or reserve for cash expenses in any future period or amortization of a
prepaid cash expense that was paid in a prior period) of such Person and its
Restricted Subsidiaries for such period to the extent that such depreciation,
amortization and other non-cash expenses and items were deducted in computing
such Consolidated Net Income; minus
(vi) non-cash items increasing such Consolidated Net Income
for such period, other than the accrual of revenue in the ordinary course of
business;
in each case, on a consolidated basis and determined in
accordance with GAAP.
Notwithstanding the foregoing, the provision for taxes based
on the income or profits of, the interest expense of, and the depreciation and
amortization and other non-cash items of, a Restricted Subsidiary of a Person
shall be added to Consolidated Net Income to compute Consolidated Cash Flow only
to the extent and in the same proportion that Net Income of that Restricted
Subsidiary was included in calculating the Consolidated Net Income of that
Person.
"Consolidated Net Income" means, with respect to any specified
Person for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP (before dividends on Preferred Stock); provided that:
(i) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions that were paid in cash to the specified Person or a Restricted
Subsidiary thereof;
(ii) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at the
date of determination permitted without any prior governmental approval (that
has not been obtained) or, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to that Subsidiary or its stockholders;
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(iii) solely for purposes of determining the aggregate amount
available for Restricted Payments under Section 4.07(ii)(C)(1) hereof, 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;
(iv) the cumulative effect of a change in accounting
principles shall be excluded;
(v) the fees, costs and expenses of the PCS Acquisition and
the other Transactions shall be excluded;
(vi) income or losses attributable to discontinued operations
(including, without limitation, operations disposed of during such period
whether or not such operations were classified as discontinued) shall be
excluded;
(vii) all extraordinary gains and losses, non-recurring
cumulative effects of accounting changes and, without duplication, non-recurring
or unusual gains and losses and all restructuring charges shall be excluded;
(viii) any non-cash charges attributable to applying the
purchase method of accounting in accordance with GAAP shall be excluded;
(ix) non-cash charges relating to employee benefit or other
management compensation plans of the Company or a Restricted Subsidiary
(excluding any non-cash charge to the extent that it represents an accrual of or
reserve for cash expenses in any future period or amortization of a prepaid cash
expense incurred in a prior period) to the extent that such non-cash charges are
deducted in computing such Consolidated Net Income shall be excluded; provided,
further that if the Company or any Restricted Subsidiary of the Company makes a
cash payment in respect of such non-cash charge in any period, such cash payment
shall (without duplication) be deducted from the Consolidated Net Income of the
Company for such period;
(x) all deferred financing costs written off and premiums paid
in connection with any early extinguishment of Indebtedness shall be excluded;
(xi) any unrealized gains or losses in respect of Hedging
Obligations shall be excluded;
(xii) any unrealized foreign currency transaction gains or
losses in respect of Indebtedness of any Person denominated in a currency other
than the functional currency of such Person shall be excluded; and
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(xiii) any non-cash compensation charge arising from any grant
of stock, stock options or other equity-based awards shall be excluded.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 13.02 hereof or such other address
as to which the Trustee may give notice to the Company.
"Credit Agreement" means the $825 million Credit Agreement, to
be dated as of October 2, 2000, among the Company, as borrower thereunder, the
subsidiary guarantors from time to time parties thereto, and Bank of America,
N.A., as administrative agent on behalf of itself and the other agents and
lenders named therein, and any one or more deferrals, renewals, extensions,
replacements, refinancings or refundings thereof from time to time, in whole or
in part, or amendments, modifications or supplements thereto or replacements
thereof from time to time, in whole or in part, (including, without limitation,
any amendments increasing the amount that may be borrowed thereunder) and any
agreements providing therefor whether by or with the same or any other agents,
lenders, creditors, or group of creditors (or any combination thereof) and
including related notes, Guarantee agreements, security agreements and other
instruments and agreements executed in connection therewith.
"Credit Facilities" means one or more debt facilities
(including, without limitation, the Credit Agreement) or commercial paper
facilities, in each case with banks or other institutional lenders providing for
revolving credit loans, term loans, receivables financing (including through the
sale of receivables to such lenders or to special purpose entities formed to
borrow from such lenders against such receivables) or letters of credit, in each
case, as amended, restated, modified, renewed, refunded, replaced, or refinanced
in whole or in part from time to time.
"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.
"Definitive Note" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.06 hereof, in
the form of Exhibit A hereto that does not bear the Global Note Legend and shall
not have the "Schedule of Exchanges of Interests in the Global Note" attached
thereto.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Notes, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
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"Designated Preferred Stock" means Preferred Stock (not
constituting Disqualified Stock) of the Company (excluding any Preferred Stock
issued prior to the Issue Date and any Preferred Stock issued in exchange or
substitution therefor) that is designated as Designated Preferred Stock on or
after the date of issuance thereof pursuant to an Officers' Certificate
delivered to the Trustee on the designation thereof, the cash proceeds of which
are excluded from the calculation set forth in Section 4.07(ii)(C)(2) hereof.
"Designated Senior Debt" means:
(i) any Indebtedness under or in respect of the Credit
Agreement; and
(ii) any other Senior Debt permitted under this Indenture the
principal amount of which is $25.0 million or more and that has been designated
by the Company in the instrument or agreement relating to the same as
"Designated Senior Debt."
"Disinterested Director" means, with respect to any Affiliate
Transaction, a member of the Board of Directors of the Company having no
material direct or indirect financial interest in or with respect to such
Affiliate Transaction. A member of the Board of Directors shall not be deemed to
have such a financial interest solely by reason of any member's holding Capital
Stock of the Company or any options, warrants or other rights in respect of such
Capital Stock.
"Disqualified Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible, or for
which it is exchangeable, in each case at the option of the holder thereof), or
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or redeemable at the option of the
holder thereof, in whole or in part, on or prior to the date that is 91 days
after the date on which the Notes mature (other than for Capital Stock which is
not Disqualified Stock). Notwithstanding the preceding sentence, (a) any Capital
Stock that would constitute Disqualified Stock solely because the holders
thereof have the right to require the Company to repurchase such Capital Stock
upon the occurrence of a change of control or an asset sale shall not constitute
Disqualified Stock if the terms of such Capital Stock provide that the Company
may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with Section 4.07 hereof, and (b)
any Capital Stock that would constitute Disqualified Stock solely because such
Capital Stock is issued pursuant to any plan for the benefit of employees of the
Company or Subsidiaries of the Company or by any such plan to such employees and
may be required to be repurchased by the Company in order to satisfy applicable
statutory or regulatory obligations shall not constitute Disqualified Stock. The
amount of Disqualified Stock shall be its mandatory maximum redemption price or
liquidation preference, as applicable, plus accrued dividends.
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"Domestic Subsidiary" means any Restricted Subsidiary that was
formed under the laws of the United States or any state thereof or the District
of Columbia or that guarantees or otherwise provides direct credit support for
any Indebtedness of the Company or any Guarantor.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means a sale by the Company of shares of its
Capital Stock (however designated and whether voting or non-voting) (other than
Disqualified Stock) and any and all rights, warrants or options to acquire such
Capital Stock.
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means the Notes issued in the Exchange Offer
pursuant to Section 2.06(vi) hereof.
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set
forth in the Registration Rights Agreement.
"Existing Indebtedness" means Indebtedness of the Company and
its Subsidiaries (other than Indebtedness under the Credit Agreement) in
existence on the Issue Date.
"Fixed Charges" means, with respect to any specified Person
for any period, the sum, without duplication, of:
(i) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued, including,
without limitation, 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 letter of credit or
bankers' acceptance financings and net of interest income and
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of the effect of all payments made or received pursuant to Hedging Obligations
and excluding amortization of deferred financing costs; plus
(ii) the consolidated interest of such Person and its
Restricted Subsidiaries that was capitalized during such period; plus
(iii) any interest expense on Indebtedness of another Person
that is Guaranteed by such Person or one of its Restricted Subsidiaries or
secured by a Lien on assets of that Person or one of its Restricted
Subsidiaries, whether or not such Guarantee or Lien is called upon, provided,
that such interest expense has been paid or accrued in accordance with GAAP;
plus
(iv) all dividends paid (whether or not in cash), on any
series of Disqualified Stock or Designated Preferred Stock of such Person or any
of its Restricted Subsidiaries, other than dividends on Equity Interests payable
solely in Equity Interests of the Company (other than Disqualified Stock) or to
the Company or a Restricted Subsidiary of the Company,
in each case, on a consolidated basis and in accordance with
GAAP.
"Fixed Charge Coverage Ratio" means with respect to any
specified Person for any period, the ratio of the Consolidated Cash Flow of such
Person and its Restricted Subsidiaries for such period to the Fixed Charges of
such Person and its Restricted Subsidiaries for such period. In the event that
the specified Person or any of its Restricted Subsidiaries incurs, assumes,
Guarantees, repays, repurchases or redeems any Indebtedness (other than ordinary
working capital borrowings) or issues, repurchases or redeems Preferred Stock
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated and on or prior to the date on which the event for
which the calculation of the Fixed Charge Coverage Ratio is made (the
"Calculation Date"), then the Fixed Charge Coverage Ratio shall be calculated
giving pro forma effect to such incurrence, assumption, Guarantee, repayment,
repurchase or redemption of Indebtedness, or such issuance, repurchase or
redemption of Preferred Stock, and the use of the proceeds therefrom as if the
same had occurred at the beginning of the applicable four-quarter reference
period.
In addition, for purposes of calculating the Fixed Charge
Coverage Ratio:
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(i) acquisitions that have been made by the specified Person
or any of its Restricted Subsidiaries, including through mergers or
consolidations and including any related financing transactions, during the
four-quarter reference period or subsequent to such reference period and on or
prior to the Calculation Date shall be given pro forma effect as if they had
occurred on the first day of the four-quarter reference period and Consolidated
Cash Flow for such reference period shall be calculated on a pro forma basis in
accordance with Regulation S-X under the Securities Act, but without giving
effect to clause (iii) of the proviso set forth in the definition of
Consolidated Net Income;
(ii) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, shall be excluded; and
(iii) the 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, but only to the
extent that the obligations giving rise to such Fixed Charges will not be
obligations of the specified Person or any of its Restricted Subsidiaries
following the Calculation Date.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on the Issue Date.
"Global Note" means a global note in the form of Exhibit A
hereto bearing the Global Note Legend, and the Private Placement Legend, if
applicable, and deposited with or on behalf of, and registered in the name of,
the Depositary or its nominee that will be issued in a denomination equal to the
amount of Definitive Notes exchanged into Global Notes.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America, and the payment for
which the United States pledges its full faith and credit.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, by way of a
pledge of assets or through letters of credit or reimbursement agreements in
respect thereof), of all or any part of any Indebtedness. The term "Guarantee"
used as a verb shall have a corresponding meaning.
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"Guarantors" means each Restricted Subsidiary that makes a
Subsidiary Guarantee in accordance with the provisions of this Indenture and
their respective successors and assigns; provided that upon the release of such
Subsidiary Guarantee pursuant to this Indenture, such Person shall cease to be a
Guarantor.
"Hedging Obligations" means, with respect to any specified
Person, the obligations of such Person under:
(i) interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements; and
(ii) other agreements or arrangements designed to protect such
Person against fluctuations in interest rates, currency exchange rates or
commodity prices.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means the Global Note in the form of Exhibit
A hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of and registered in the name of the Depositary or
its nominee that will be issued in a denomination equal to the amount of
Definitive Notes exchange into Global Notes, less any amounts exchanged into
144A Global Notes and Regulation S Global Notes.
"Indebtedness" means, without duplication with respect to any
specified Person, any indebtedness of such Person, whether or not contingent:
(i) in respect of borrowed money;
(ii) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in respect of
letters of credit or banker's acceptances), provided that, solely with respect
to the Company or any of its Subsidiaries, any obligations, the sole obligees of
which are the United States or any state government, or any agency or
instrumentality thereof in settlement of, or fines or other obligations imposed
under, any governmental proceedings existing on the Issue Date or arising
therefrom or related thereto, shall not be deemed Indebtedness for so long as
the United States or any state government, or any agency or instrumentality
thereof are the sole obligees with respect to such obligations. If any such
obligation is sold, disposed or otherwise transferred to any person that is not
the United States or any state government, or any agency or instrumentality
thereof, then such obligation shall be deemed in each case, to constitute an
incurrence of Indebtedness by the Company or such Restricted Subsidiary, as the
case may be to the extent such obligation would otherwise constitute
Indebtedness hereunder;
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(iii) representing Capital Lease Obligations;
(iv) representing the balance deferred and unpaid of the
purchase price of any property (which purchase price is due more than one year
after the date of placing such property in final service or taking final
delivery and title thereto), except any balance that constitutes an accrued
expense or trade payable; or
(v) representing the net obligations under any Hedging
Obligations,
if and to the extent any of the preceding items (other than
letters of credit and Hedging Obligations) would appear as a liability upon a
balance sheet of the specified Person prepared in accordance with GAAP.
In addition, the term "Indebtedness" includes (a) all
Indebtedness of others secured by a Lien on any asset of the specified Person
(whether or not such Indebtedness is assumed by the specified Person) (provided,
that the amount of Indebtedness of such Person shall be the lesser of (1) the
fair market value of such asset at such date of determination, and if the fair
market value is in excess of $5.0 million, such value shall be determined by the
Board of Directors and (2) the amount of such Indebtedness of such other Person)
and, (b) to the extent not otherwise included, the Guarantee by the specified
Person of any Indebtedness of any other Person, but excluding any Business
Guarantee.
The amount of any Indebtedness outstanding as of any date
shall be:
(i) the accreted value thereof, in the case of any
Indebtedness issued with original issue discount; or
(ii) the principal amount thereof in the case of all other
Indebtedness.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Initial Purchaser" means Rite Aid Corp., a Delaware
corporation.
"Institutional Accredited Investor" or "IAI" means an
institution that is an "accredited investor" as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act, who is not also a QIB.
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"Insurance Subsidiary" means any Subsidiary established by the
Company or any other Subsidiary of the Company, the sole function and purpose of
which is to provide insurance or reinsurance to the Company and/or any
Subsidiary or assume insurance related risk of the Company or any Subsidiary.
"Interest Payment Date" means April 15 and October 15 of each
year, or if any such day is not a Business Day, on the next succeeding Business
Day.
"Investments" means, with respect to any Person, all direct or
indirect investments by a Person in other Persons (including Affiliates) in the
forms of loans, including Guarantees or other obligations, advances or capital
contributions (but excluding commission, travel, relocation, payroll,
entertainment and similar advances to directors, officers and employees made in
the ordinary course of business), purchases or other acquisitions for
consideration of Indebtedness, Equity Interests or other securities, together
with all items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP, but excluding any Business Guarantee.
If the Company or any Subsidiary of the Company directly or
indirectly sells or otherwise disposes of any Equity Interests of any direct or
indirect Restricted Subsidiary of the Company so that, after giving effect to
such sale or disposition, that Person is no longer a Restricted Subsidiary of
the Company, the Company shall be deemed to have made an Investment on the date
of any such sale or disposition equal to the fair market value of the Equity
Interests of such Person not sold or disposed of in an amount determined as
provided in the second to last paragraph of Section 4.07 hereof. The outstanding
amount of any Investment shall be the original cost of the Investment, reduced
by all returns on the Investment (including dividends, interest, distributions,
returns of principal and profits on sale).
"Issue Date" means the closing for the sale and original
issuance of the Notes to the Initial Purchaser.
"JLL" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Levy, Inc., investment funds
managed, sponsored or advised by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc., general and
limited partners of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Levy, Inc. and co-investors with ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc. in the Company.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue on such payment for the intervening period.
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"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by such
Holders in connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law, including any conditional sale or other title retention agreement, any
lease, any option or other agreement to sell or give a security interest in and,
except in connection with any Qualified Receivables Transaction, any filing of
or agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction.
"Liquidated Damages" means all liquidated damages then owing
pursuant to the Registration Rights Agreement.
"Net Income" means, with respect to any specified Person, the
net income (loss) of such Person, determined in accordance with GAAP and before
any reduction in respect of Preferred Stock dividends, excluding, however:
(i) any gain or loss, together with any related provision for
taxes on such gain or loss, realized in connection with: (A) any Asset Sale; or
(B) the disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries; and
(ii) any extraordinary gain or loss, together with any related
provision for taxes on such extraordinary gain or loss.
"Net Proceeds" means the aggregate cash proceeds received by
the Company or any Restricted Subsidiary of the Company in respect of any Asset
Sale, including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale, net of
(without duplication) (w) the direct costs relating to such Asset Sale,
including, without limitation, legal, accounting and investment banking fees,
and sales commissions, and any relocation expenses incurred as a result thereof,
(x) taxes paid or payable as a result thereof, in each case, after taking into
account any available tax credits or deductions and any tax sharing
arrangements, (y) amounts required to be applied to the repayment of
Indebtedness secured by a Lien on the asset or assets that were the subject of
such Asset Sale, and any reserve for adjustment in respect of the sale price of
such asset or assets established in accordance with GAAP and any reserve in
accordance with GAAP against any liabilities associated with the assets disposed
of in such Asset Sale and (z) provision for amounts required to be paid to
minority interest holders in any Restricted Subsidiary or in any asset subject
to such Asset Sale as a result of such Asset Sale.
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"Non-Class B Director" means any Director who is not
designated or elected solely by the holders of Class B-1 Common Stock, Class B-2
Common Stock, Series A-2 Preferred Stock or Series B Preferred Stock of the
Company.
"Non-Recourse Debt" means Indebtedness:
(i) as to which neither the Company nor any Restricted
Subsidiary of the Company (A) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness) (other
than the pledge of stock of an Unrestricted Subsidiary; provided that such
pledge otherwise constitutes Non-Recourse Debt), (B) is directly or indirectly
liable as a guarantor or otherwise, or (C) constitutes the lender;
(ii) no default with respect to which (including any rights
that the holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit (upon notice, lapse of time or both) any
holder of any other Indebtedness (other than the Notes) of the Company or any
Restricted Subsidiary of the Company to declare a default on other Indebtedness
or cause the payment thereof to be accelerated or payable prior to its stated
maturity; and
(iii) as to which the lenders of such Indebtedness have been
notified in writing or have agreed in writing (in the agreement relating to the
Indebtedness or otherwise) that they will not have any recourse to the stock or
assets of the Company or any of its Restricted Subsidiaries (other than as
permitted by clause (i)(A) above).
"Non-US Person" means a Person who is not a U.S. Person.
"Note Custodian" means the Trustee, as custodian with respect
to the Notes in global form, or any successor entity thereto.
"Notes" has the meaning assigned to it in the preamble to this
Indenture.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf
of the Company by two Officers of the Company, one of whom must be the principal
executive
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officer, the principal financial officer or the principal accounting officer of
the Company, that meets the requirements of Section 13.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who
is reasonably acceptable to the Trustee, that meets the requirements of Section
13.05 hereof. The counsel may be an employee of or counsel to the Company, any
Subsidiary of the Company or the Trustee.
"Other Hedging Agreements" means any foreign exchange
contracts, currency swap agreements, commodity agreements or other similar
agreements or arrangements designed to protect against the fluctuations in
currency or commodity values.
"Participant" means with respect to the Depositary, Euroclear,
Cedelbank, or a Person who has an account with the Depositary, Euroclear or
Cedelbank, respectively (and, with respect to the Depositary Trust Company,
shall include Euroclear and Cedelbank).
"PCS Acquisition" means the Company's acquisition of 100% of
the equity of PCS Holding Corporation from Rite Aid.
"Permitted Business" means any line of business (i) which is
the same or similar, ancillary or related to any of the businesses that, after
giving effect to the PCS Acquisition, the Company and its Restricted
Subsidiaries are engaged in on the Issue Date, including, without limitation,
the providing of health benefit management services; (ii) in the healthcare
industry; or (iii) constituting a logical extension of any of the foregoing,
including without limitation, lines of business utilizing the Company's
marketing, distribution, delivery, customer information and information systems
infrastructure.
"Permitted Investments" means:
(i) any Investment in (including Guarantees of the obligations
of) the Company or a Restricted Subsidiary of the Company;
(ii) any Investment in Cash Equivalents;
(iii) any Investment by the Company or any Restricted
Subsidiary of the Company in a Person, if as a result of such Investment (A)
such Person becomes a Restricted Subsidiary of the Company or (B) such Person is
merged, consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or a
Restricted Subsidiary of the Company;
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(iv) any Investment made as a result of the receipt of
non-cash consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.10 hereof;
(v) any acquisition of assets (including Equity Interests)
solely in exchange for Equity Interests (other than Disqualified Stock of the
Company);
(vi) Hedging Obligations;
(vii) loans and advances made to and Guarantees provided for
the benefit of officers, directors and employees of the Company and its
Restricted Subsidiaries in the ordinary course of business not to exceed $5.0
million in the aggregate at any one time outstanding;
(viii) Investments in prepaid expenses, negotiable instruments
held for collection and lease, utility and workers compensation, performance and
similar deposits entered into as a result of the operations of the business in
the ordinary course of business;
(ix) Investments in securities of trade debtors or customers
received pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade debtors or customers or in good faith
settlement of delinquent obligations of such trade debtors or customers and
securities or other investments received in settlement of delinquent obligations
or other disputes with respect to debts created in the ordinary course of
business, or as a result of foreclosure, perfection or enforcement of any Lien
or in satisfaction of judgments (including in connection with any bankruptcy
proceedings);
(x) obligations of one or more officers or other employees of
the Company or any of its Restricted Subsidiaries in connection with such
officer's or employee's acquisition of shares of common stock of the Company so
long as no cash or other assets are paid by the Company or any of its Restricted
Subsidiaries to such officers or employees in connection with the acquisition of
any such obligations;
(xi) Investments in any of the Notes;
(xii) receivables owing to the Company or any Restricted
Subsidiary created in the ordinary course of business;
(xiii) the acquisition by a Receivables Subsidiary in
connection with a Qualified Receivables Transaction of Equity Interests of a
trust or other Person
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established by such Receivables Subsidiary to effect such Qualified Receivables
Transaction; and any other Investment by the Company or a Subsidiary of the
Company in a Receivables Subsidiary or any Investment by a Receivables
Subsidiary in any other Person in connection with a Qualified Receivables
Transaction customary for the transactions;
(xiv) any Investment in an Insurance Subsidiary;
(xv) any Investment in existence, or made pursuant to legally
binding written commitments in existence, on the Issue Date;
(xvi) any Investment in a joint venture or similar entity that
is not a Restricted Subsidiary and that is engaged in a Permitted Business, in
an aggregate amount not to exceed $50.0 million; and
(xvii) other Investments in any Person having an aggregate
fair market value (as measured on the date each such Investment was made and
without giving effect to subsequent changes in value), when taken together with
all other Investments made pursuant to this clause (xvi) that are at the time
outstanding not to exceed an amount equal to $50.0 million, which amount will
increase to $62.5 million 12 months after the Issue Date, which amount will
increase to $75.0 million 24 months after the Issue Date, which amount will
increase to $87.5 million 36 months after the Issue Date, which amount will
increase to $100.0 million 48 months after the Issue Date, and which amount will
increase to $112.5 million 60 months after the Issue Date.
"Permitted Junior Securities" means debt or equity securities
of the Company or any successor corporation issued pursuant to a plan of
reorganization or readjustment of the Company that are subordinated to the
payment of all then outstanding Senior Debt of the Company at least to the same
extent that the Notes are subordinated to the payment of all Senior Debt of the
Company on the Issue Date, so long as:
(i) the effect of the use of this defined term in Article 10
hereof is not to cause the Notes to be treated as part of:
(A) the same class of claims as the Senior Debt of the
Company; or
(B) any class of claims pari passu with, or senior to, the
Senior Debt of the Company for any payment or distribution in
any case or proceeding or similar event relating to the
liquidation, insolvency, bankruptcy, dissolution, winding up
or reorganization of the Company; and
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(ii) to the extent that any Senior Debt of the Company
outstanding on the date of consummation of any such plan of reorganization or
readjustment is not paid in full in cash or Cash Equivalents (other than Cash
Equivalents of the type referred to in clauses (iii) and (iv) of the definition
thereof) on such date, either:
(A) the holders of any Senior Debt not so paid in full in cash
or Cash Equivalents (other than Cash Equivalents of the type
referred to in clauses (iii) and (iv) of the definition
thereof) have consented to the terms of such plan of
reorganization or readjustment; or
(B) such holders receive securities which constitute Senior
Debt of the Company (which are guaranteed pursuant to
guarantees constituting Senior Debt of each Guarantor) and
which have been determined by the relevant court to constitute
satisfaction in full in money or money's worth of any Senior
Debt of the Company (and any related Senior Debt of the
Guarantors) not paid in full in cash or Cash Equivalents
(other than Cash Equivalents of the type referred to in
clauses (iii) and (iv) of the Cash Equivalents definition).
"Permitted Liens" means:
(i) [Intentionally left blank];
(ii) Liens in favor of the Company or any Restricted
Subsidiary;
(iii) Liens on property or Equity Interests of a Person
existing at the time such Person is merged with or into or consolidated with, or
is acquired by, the Company or any of its Subsidiaries or such Person is
designated to be a Restricted Subsidiary; provided that such Liens were in
existence prior to the contemplation of such merger, consolidation, acquisition
or designation and do not extend to any assets other than those of the Person
merged into, consolidated with or acquired by the Company or such Subsidiary or
so designated;
(iv) Liens on property existing at the time of acquisition of
such property by the Company or any of its Subsidiaries, provided that such
Liens were in existence prior to the contemplation of such acquisition;
(v) Liens to secure the performance of statutory obligations,
surety or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business;
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(vi) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clause (iv) of the second paragraph of Section 4.09
hereof covering only the assets acquired, constructed or improved with such
Indebtedness;
(vii) Liens existing on the Issue Date;
(viii) Liens for taxes, assessments or governmental charges or
claims that (A) are not yet delinquent or (B) are being contested in good faith
by appropriate proceedings promptly instituted and diligently conducted,
provided that in the case of clause (B) any reserve or other appropriate
provision as shall be required in conformity with GAAP shall have been made;
(ix) Liens incurred in the ordinary course of business of the
Company or any of its Subsidiaries with respect to obligations that do not
exceed $5.0 million at any one time outstanding;
(x) security for the payment of workers' compensation,
unemployment insurance, other social security benefits or other
insurance-related obligations (including, but not limited to, in respect of
deductibles, self-insured retention amounts and premiums and adjustments to
those amounts) entered into in the ordinary course of business;
(xi) deposits or pledges in connection with bids, tenders,
leases and contracts (other than contracts for the payment of money) entered
into in the ordinary course of business;
(xii) zoning restrictions, easements, licenses, reservations,
provisions, covenants, conditions, waivers, restrictions on the use of property
or minor irregularities of title (and with respect to leasehold interests,
mortgages, obligations, liens and other encumbrances incurred, created, assumed
or permitted to exist and arising by, through or under a landlord or owner of
the leased property, with or without consent of the lessee), none of which
interferes in any material respect with the ordinary conduct of the business of
the Company or any of its Subsidiaries or materially impairs the use of any
parcel of property;
(xiii) deposits or pledges to secure public or statutory
obligations, progress payments, surety and appeal bonds or other obligations of
like nature incurred in the ordinary course of business;
(xiv) survey title exceptions, title defects, encumbrances,
easements, reservations of, or rights of others for, rights of way, sewers,
electric lines, telegraph or telephone lines and other similar purposes or
zoning or other restrictions as to the use of
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real property not materially interfering with the ordinary conduct of the
business of the Company and its Subsidiaries taken as a whole;
(xv) Liens arising by operation of law or reasonable and
customary Liens arising by contract in favor of landlords, mechanics, carriers,
warehousemen, materialmen, laborers, employees, suppliers or the like, incurred
in the ordinary course of business for sums which are not yet delinquent or are
being contested in good faith by negotiations or by appropriate proceedings
which suspend the collection thereof;
(xvi) leases, subleases, licenses or sublicenses to third
parties entered into in the ordinary course of business;
(xvii) Liens securing any Permitted Refinancing Indebtedness
so long as the Lien securing such Permitted Refinancing Indebtedness is limited
to all or part of the same property or assets that secured (or under such
written arrangements could secure) the original Indebtedness; or incurred in
respect of any Indebtedness secured by, or securing any refinancing, refunding,
extension, renewal or replacement (in whole or in part) and related costs of any
other obligation secured by, any other Permitted Liens, provided that any new
Lien of this type is limited to all or part of the same property or assets that
secured (or, under the written arrangements under which the original Lien arose
could secure) the obligations to which such Liens of this type relate;
(xviii) Liens securing Hedging Obligations;
(xix) Liens arising out of judgments, decrees, orders or
awards not constituting an Event of Default;
(xx) Liens on Equity Interests of an Unrestricted Subsidiary
that secure Indebtedness or other obligations of such Unrestricted Subsidiary;
(xxi) Liens incurred in connection with a Qualified
Receivables Transaction (which in the case of the Company and its Restricted
Subsidiaries (other than Receivables Subsidiaries) shall be limited to
receivables and related assets referred to in the definition of Qualified
Receivables Transaction);
(xxii) Liens securing reimbursement obligations under
commercial letters of credit, but only in or upon the goods the purchase of
which was financed by such letters of credit;
(xxiii) Liens arising under this Indenture in favor of the
Trustee for its own benefit and similar Liens in favor of other trustees, agents
and representatives arising under instruments governing Indebtedness permitted
to be incurred under this Indenture,
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provided, that such Liens are solely for the benefit of the trustees, agents, or
representatives, in their capacities as such and not for the benefit of the
holders of such Indebtedness;
(xxiv) set-off, chargeback and other rights of depositary and
collection banks and other regulated financial institutions with respect to
money or instruments of the Company or its Restricted Subsidiaries on deposit
with or in the possession of such institutions; and
(xxv) Liens arising from the deposit of funds or securities in
trust for the purpose of decreasing or defeasing Indebtedness so long as such
deposit of funds or securities and such decreasing or defeasing of Indebtedness
are permitted under Section 4.07 hereof.
In each case set forth above, notwithstanding any stated
limitation on the properties or assets that may be subject to such Lien, a
Permitted Lien on a specified property or asset or group or type of properties
or assets may include Liens on all improvements, additions and accessions
thereto and all product, proceeds, dividends, distributions and increases in
respect thereof.
"Permitted Refinancing Indebtedness" means any Indebtedness of
the Company or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to refinance other Indebtedness of the Company or
any of its Restricted Subsidiaries (other than intercompany Indebtedness);
provided that:
(i) the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness so refinanced (plus all
accrued interest thereon and the amount of all fees, commissions, discounts,
costs, expenses and premiums incurred in connection with such Indebtedness);
(ii) if such Indebtedness is not Senior Debt, either (a) 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
refinanced or (b) all scheduled payments on or in respect of such Permitted
Refinancing Indebtedness (other than interest payments) shall be on or after the
date that is 91 days after the date on which the Notes mature; and if such
Indebtedness is Senior Debt and has a final stated maturity later than the final
stated maturity of the Notes, such Permitted Refinancing Indebtedness has a
final stated maturity later than the final stated maturity of the Notes;
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(iii) if such Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is subordinated in right of payment to
the Notes, such Permitted Refinancing Indebtedness is subordinated in right of
payment to, the Notes on terms at least as favorable to the Holders of Notes as
those contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and
(iv) such Indebtedness is incurred either by the Company or
any Guarantor or by the Restricted Subsidiary who is the obligor on the
Indebtedness being refinanced.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.
"Preferred Stock" means any Equity Interests of a Person,
however designated, which entitles the holder thereof to a preference with
respect to dividends, distributions, or liquidation proceeds of such Person over
the holders of any other Equity Interests of such Person.
"Principals" means JLL, Rite Aid and any entity controlled by
any of the foregoing and/or by a trust of the type described hereafter, and/or a
trust for the benefit of any of the foregoing.
"Private Placement Legend" means the legend set forth in
Section 2.06(vii)(A)(1) to be placed on all Notes issued under this Indenture
except where otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Qualified Receivables Transaction" means any transaction or
series of transactions entered into by the Company or any of its Subsidiaries
under which the Company or any of its Subsidiaries sells, conveys or otherwise
transfers to (i) a Receivables Subsidiary (in the case of a transfer by the
Company or any of its Subsidiaries, which transfer may be effected through the
Company or one or more Subsidiaries) and (ii) any other Person (in the case of a
transfer by a Receivables Subsidiary), or grants a security interest in, any
accounts receivable, instruments, chattel paper, general intangibles and similar
assets (whether now existing or arising in the future, the "Receivables") of the
Company or any of its Subsidiaries, and any assets related thereto including,
without limitation, all collateral securing such Receivables, all contracts,
contract rights and all guarantees or other obligations in respect of the
Receivables, proceeds of the Receivables and any other assets which are
customarily transferred or in respect of which security interests are
customarily granted in connection with asset
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securitization transactions of this type; provided that a Receivables Subsidiary
participating in a Qualified Receivables Transaction shall meet the requirements
set forth in the definition of "Receivables Subsidiary."
"Receivables Subsidiary" means a Subsidiary of the Company
which engages in no activities other than in connection with the financing of
accounts receivable and that is designated by the Board of Directors of the
Company (as provided below) as a Receivables Subsidiary, no portion of the
Indebtedness or any other Obligations (contingent or otherwise) of which:
(i) is guaranteed by the Company or any Subsidiary of the
Company (excluding guarantees of Obligations (other than the principal of, and
interest on, Indebtedness) pursuant to representations, warranties, covenants
and indemnities entered into in the ordinary course of business in connection
with a Qualified Receivables Transaction);
(ii) is recourse to or obligates the Company or any Subsidiary
of the Company in any way other than pursuant to representations, warranties,
covenants and indemnities customarily entered into in connection with a
Qualified Receivables Transaction;
(iii) subjects any property or asset of the Company or any
Subsidiary of the Company (other than accounts receivable and related assets as
provided in the definition of "Qualified Receivables Transaction"), directly or
indirectly, contingently or otherwise, to the satisfaction of such Indebtedness,
other than pursuant to the representations, warranties, covenants and
indemnities customarily entered into in connection with a Qualified Receivables
Transaction; or
(iv) with which neither the Company nor any Subsidiary of the
Company has any material contract, agreement, arrangement or understanding other
than on terms no less favorable to the Company or such Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of the
Company, other than as may be customary in a Qualified Receivables Transaction
including for fees payable in the ordinary course of business in connection with
servicing accounts receivable; and with which neither the Company nor any
Subsidiary of the Company has any obligation to maintain or preserve such
Subsidiary's financial condition or cause such Subsidiary to achieve certain
levels of operating results.
"refinance" means extend, refinance, renew, replace, defease
or refund, pay, purchase, redeem or otherwise acquire or retire for value.
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"Refinancing Disqualified Stock" means any Disqualified Stock
of the Company issued in exchange for, upon conversion of, or the net proceeds
of which are used to, refinance, other Disqualified Stock of the Company;
provided that:
(i) the amount of such Refinancing Disqualified Stock does not
exceed the amount of the Disqualified Stock so, refinanced (plus all accrued
dividends thereon and the amount of all fees, commissions, discounts, costs,
expenses and premiums incurred in connection therewith); and
(ii) either (A) such Refinancing Disqualified Stock by its
terms, or upon the happening of any event, does not mature and is not
mandatorily redeemable pursuant to a sinking fund obligation or otherwise at the
option of the holder thereof, in whole or in part, prior to the corresponding
maturity or redemption date, of the Disqualified Stock being refinanced or (B)
all scheduled payments on or in respect of such Refinancing Disqualified Stock
(other than dividend payments) shall be on or after the date that is 91 days
after the date on which the Notes mature.
"Refinancing Subsidiary Preferred Stock" means any Preferred
Stock of any Restricted Subsidiary of the Company issued in exchange for, upon
conversion of, or the net proceeds of which are used to refinance other
Preferred Stock of the Restricted Subsidiary; provided that:
(i) the amount of such Refinancing Subsidiary Preferred Stock
does not exceed the amount of the Preferred Stock so refinanced (plus all
accrued dividends thereon and the amount of all fees, commissions, discounts,
costs, expenses and premiums incurred in connection therewith); and
(ii) such Refinancing Subsidiary Preferred Stock is not
Disqualified Stock.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date hereof, by and between the Company, the
Guarantors named therein and Rite Aid, as such agreement may be amended,
modified or supplemented from time to time.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" means a Global Note in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of and registered in the name of the Depositary
or its nominee, issued in the principal amount of Definitive Notes exchanged
into Global Notes, less any amounts exchanged into 144A Global Notes and IAI
Global Notes.
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"Related Party" means:
(i) any controlling stockholder, 80% (or more) owned
Subsidiary or immediate family member (in the case of an individual) of any
Principal; or
(ii) any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons beneficially holding an
80% or more controlling interest of which consist of any one or more Principals
and/or such other Persons referred to in the immediately preceding clause (i).
"Representative" means the indenture trustee or other trustee,
agent or representative in respect of any Designated Senior Debt; provided that
if, and for so long as, any Designated Senior Debt lacks such a representative,
then the Representative for such Designated Senior Debt shall at all times
constitute the holders of a majority in outstanding principal amount of such
Designated Senior Debt in respect of any Designated Senior Debt.
"Responsible Officer" means, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Definitive Note" means a Definitive Note bearing
the Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the
Private Placement Legend.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Period" means the 40 day restricted period as
defined in Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of
the Person referred to that is not an Unrestricted Subsidiary.
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"Rite Aid" means Rite Aid Corporation.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Rule 903" means Rule 903 promulgated under the Securities
Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means:
(i) all Indebtedness outstanding under all Credit Facilities
and all Hedging Obligations (including guarantees thereof) with respect to the
Credit Facilities of the Company and the Guarantors, whether outstanding on the
date of Issue Date or thereafter incurred;
(ii) any other Indebtedness incurred by the Company and the
Guarantors, unless the instrument under which such Indebtedness is incurred
expressly provides that it is on a parity with or subordinated in right of
payment to the Notes or the Subsidiary Guarantees, as the case may be; and
(iii) all Obligations with respect to the items listed in the
preceding clauses (i) and (ii) (including any interest accruing subsequent to
the filing of a petition of bankruptcy at the rate provided for in the
documentation with respect to the Obligation, whether or not such interest is an
allowed claim under applicable law).
Notwithstanding anything to the contrary in the preceding,
Senior Debt will not include:
(i) any liability for federal, state, local or other taxes
owed or owing by the Company or the Guarantors;
(ii) any Indebtedness of the Company or any Guarantor to any
of its Subsidiaries;
(iii) any trade payables;
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(iv) any Capital Stock of the Company; or
(v) the portion of any Indebtedness that is incurred in
violation of this Indenture (but, as to any such obligation, no such violation
shall be deemed to exist for the purposes of this clause (v) if the Trustee
shall have received an Officers' Certificate of the Company at the time of such
incurrence to the effect that the incurrence of such Indebtedness does not (or,
in the case of revolving credit indebtedness, that the incurrence of the entire
committed amount thereof at the date on which the initial borrowing thereunder
is made would not) violate this Indenture.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Act, as such Regulation is in effect on the Issue
Date.
"Stated Maturity" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which such
payment of interest or principal was scheduled to be paid in the original
documentation governing such Indebtedness, and shall not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior
to the date originally scheduled for the payment of principal or interest.
"Subordinated Indebtedness" means any Indebtedness of the
Company or a Guarantor that is subordinated to the Notes or the Subsidiary
Guarantee, as applicable.
"Subsidiary" means, with respect to any specified Person:
(i) any corporation, association, partnership, or other
business entity of which more than 50% of the total voting power of shares of
Capital Stock or other Equity Interests (including partnership interests)
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 that Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and
(ii) without in any way limiting clause (i) of this
definition, any partnership (A) the sole general partner or the managing general
partner of which is that Person or a Subsidiary of that Person or (B) the only
general partners of which is that Person or one or more Subsidiaries of that
Person (or any combination thereof).
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"Subsidiary Guarantee" means the senior subordinated Guarantee
of the Notes by a Guarantor.
"Tangible Assets" means the total amount of assets (less
applicable reserves and other properly deductible items), which under GAAP would
be included on a consolidated balance sheet of the Company and its Restricted
Subsidiaries after deducting therefrom (i) copyrights, patents, trademarks,
trade names, licenses, computer programs, (ii) goodwill, (iii) capitalized
advertising costs, research and development costs, amortization of capital
assets, organization costs, leases, franchises, exploration permits or import
and export permits, and (iv) any other assets deemed intangible on the Company's
balance sheet.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Section
Section 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA, except as provided in Section 9.03.
"Transactions" means the PCS Acquisition, any merger effected
in connection therewith, the initial equity investment by the Principals, the
exchange of Common Stock issued to the Principals for Series B Preferred Stock
and the subsequent conversion thereof, into Class B Common Stock, the issuance
of the Notes and the Warrants and the performance of the obligations set forth
therein, and the execution and performance of the Registration Rights Agreement,
and all other transactions relating to the PCS Acquisition or the financing
thereof, including, but not limited to any payments required to be made by the
Company as a result of the failure of the Board of Directors of the Company to
recommend or support any event or other happening required to be so recommended
or supported as set forth in the agreements or other documentation governing the
Transactions.
"Trustee" means the party named as such in the preamble of
this Indenture above until a successor replaces it in accordance with the
applicable provisions of this Indenture and thereafter means the successor
serving hereunder.
"Unrestricted Definitive Note" means one or more Definitive
Notes that do not bear or are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a permanent global Note in
the form of Exhibit A attached hereto that bears the Global Note Legend and that
has the "Schedule of Exchanges of Interests in the Global Note" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing a series of Notes that do not bear the Private
Placement Legend.
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"Unrestricted Subsidiary" means any Subsidiary of the Company
that is designated by the Board of Directors as an Unrestricted Subsidiary
pursuant to a Board Resolution, but only to the extent that such Subsidiary:
(i) has no Indebtedness other than Non-Recourse Debt;
(ii) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or understanding
are no less favorable to the Company or such Restricted Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of the
Company;
(iii) is a Person with respect to which neither the Company
nor any of its Restricted Subsidiaries has any direct or indirect obligation (A)
to subscribe for additional Equity Interests; (B) to maintain or preserve such
Person's financial condition or to cause such Person to achieve any specified
levels of operating results; or (C) on any Guarantee of any obligation of such
Person; and
(iv) has not Guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the Company or any of its
Restricted Subsidiaries;
except in the case of clause (i), (iii) or (iv), to the extent
(A) that the Company or such Restricted Subsidiary could
otherwise provide such guarantee or incur such Indebtedness
pursuant to Section 4.09 hereof, and
(B) the provision of such guarantee, the incurrence of such
Indebtedness, the making of such loan or the acquisition of
additional Equity Interests and any other Investment would
otherwise would be permitted under Section 4.07 hereof and the
other provisions contained herein.
Any designation of a Subsidiary of the Company as an
Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the
Trustee a certified copy of the Board Resolution giving effect to the
designation and an Officers' Certificate certifying that the designation
complied with the preceding conditions and was permitted under Section 4.07
hereof.
If, at any time, any Unrestricted Subsidiary would fail to
meet the preceding requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture
and any Indebtedness of such Subsidiary shall be deemed to be incurred by a
Restricted Subsidiary of the Company as
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of such date and, if such Indebtedness is not permitted to be incurred as of
such date under Section 4.09 hereof, (calculated on a pro forma basis as if such
Unrestricted Subsidiary had been designated a Restricted Subsidiary as of the
first day of the applicable four-quarter reference period), the Company shall be
in default of Section 4.09.
The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (x) such
Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma
basis as if such designation had occurred at the beginning of the four-quarter
reference period and (y) no Default or Event of Default would be in existence
following such designation.
"U.S. Person" means a U.S. person as defined in Rule 902(o)
under the Securities Act.
"Voting Stock" of any Person as of any date means the Capital
Stock of the Person that is at the time entitled to vote in the election of the
Board of Directors of the Person.
"Warrants" means warrants to purchase shares of the Company's
Class A Common Stock issued in connection with the Transactions.
"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, by
(B) the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of the payment; by
(ii) the then outstanding principal amount of the
Indebtedness.
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Section 1.02 OTHER DEFINITIONS.
Defined in
Term Section
---- ----------
"Acceleration Notice" 6.02
"Affiliate Transaction" 4.11
"Asset Sale Offer" 3.09
"Authentication Order" 2.02
"Change of Control Offer" 4.14
"Change of Control Payment" 4.14
"Change of Control Payment Date" 4.14
"Covenant Defeasance" 8.03
"DTC" 2.03
"Event of Default" 6.01
"Excess Proceeds" 4.10
"Global Note Legend" 2.06(vii)(B)
"incur" 4.09
"Initial Lien" 4.12
"Legal Defeasance" 8.02
"Material Subsidiary" 6.01(vii)
"Offer Amount" 3.09
"Offer Period" 3.09
"Paying Agent" 2.03
"Payment Blockage Notice" 10.04
"Payment Default" 6.01
"Permitted Debt" 4.09
"Purchase Date" 3.09
"Registrar" 2.03
"Restricted Payments" 4.07
Section 1.03 TRUST INDENTURE ACT DEFINITIONS.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
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45
The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes or the Subsidiary Guarantees means the Company
and the Guarantors, respectively and any successor obligor upon the
Notes and the Subsidiary Guarantees, respectively.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
Section 1.04 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and in the
plural include the singular;
(v) provisions apply to successive events and transactions;
and
(vi) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement of successor sections or
rules adopted by the SEC from time to time.
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ARTICLE 2
THE NOTES
Section 2.01 FORM AND DATING.
(i) General.
The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Notes will initially
be issued in the form of a certificated Definitive Note. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes shall
be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company, the Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
(ii) Global Notes.
Notes issued in global form shall be substantially in the form
of Exhibit A attached hereto (including the Global Note Legend thereon and the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Notes
issued in definitive form shall be substantially in the form of Exhibit A
attached hereto (but without the Global Note Legend thereon and without the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Each
Global Note shall represent such of the outstanding Notes as shall be specified
therein and each shall provide that it shall represent the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby shall be made by the Trustee or the Note Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06 hereof.
(iii) Temporary Global Notes
Notes offered and sold in reliance on Regulation S shall be
issued initially in the form of the Regulation S Temporary Global Note, which
shall be deposited on
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behalf of the purchasers of the Notes represented thereby with the Trustee, at
its New York office, as custodian for the Depositary, and registered in the name
of the Depositary or the nominee of the Depositary for the accounts of
designated agents holding on behalf of Euroclear or Cedelbank, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
Restricted Period shall be terminated upon the receipt by the Trustee of (i) a
written certificate from the Depositary, together with copies of certificates
from Euroclear and Cedelbank certifying that they have received certification of
non-United States beneficial ownership of 100% of the aggregate principal amount
of the Regulation S Temporary Global Note (except to the extent of any
beneficial owners thereof who acquired an interest therein during the Restricted
Period pursuant to another exemption from registration under the Securities Act
and who will take delivery of a beneficial ownership interest in a 144A Global
Note or an IAI Global Note bearing a Private Placement Legend, all as
contemplated by Section 2.06(ii)(A) hereof), and (ii) an Officers' Certificate
from the Company. Following the termination of the Restricted Period, beneficial
interests in the Regulation S Temporary Global Note shall be exchanged for
beneficial interests in Regulation S Permanent Global Notes pursuant to the
Applicable Procedures. Simultaneously with the authentication of Regulation S
Permanent Global Notes, the Trustee shall cancel the Regulation S Temporary
Global Note. The aggregate principal amount of the Regulation S Temporary Global
Note and the Regulation S Permanent Global Notes may from time to time be
increased or decreased by adjustments made on the records of the Trustee and the
Depositary or its nominee, as the case may be, in connection with transfers of
interest as hereinafter provided.
(iv) Euroclear and Cedelbank Procedures Applicable.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the "General
Terms and Conditions of Cedelbank" and "Customer Handbook" of Cedelbank shall be
applicable to transfers of beneficial interests in the Regulation S Temporary
Global Note and the Regulation S Permanent Global Notes that are held by
Participants through Euroclear or Cedelbank.
Section 2.02 EXECUTION AND AUTHENTICATION.
One Officer shall sign the Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, such Note shall nevertheless be
valid.
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A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed
by one Officer (an "Authentication Order"), authenticate Notes for original
issue up to the aggregate principal amount of $200 million. The aggregate
principal amount of Notes outstanding at any time may not exceed such amount
except as provided in Section 2.07 hereof. The Authentication Order shall
specify the amount of Notes to be authenticated and the date on which the Notes
are to be authenticated.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. Unless otherwise provided in the appointment,
an authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with Holders or an Affiliate of the Company.
Section 2.03 REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company shall notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
In connection with the issuance of any Global Notes, the
Company agrees to appoint The Depository Trust Company ("DTC") to act as
Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Note Custodian with respect to the
Global Notes. The Corporate Trust Office of the Trustee and the Trustee's office
at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, are each designated
as a place of payment.
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In connection with the issuance of any Global Notes, the
Trustee is authorized to enter into a letter of representations with DTC in a
form to be provided to the Trustee by the Company and to act in accordance with
such letter.
Section 2.04 PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium or Liquidated Damages, if any, or interest on the
Notes, and will promptly notify the Trustee in writing 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
and to account for all money disbursed. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and to account for all
money disbursed. Upon payment over to the Trustee, the Paying Agent (if other
than the Company or a Subsidiary) shall have no further liability for the money.
If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold
in a separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.
Section 2.05 HOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA Section 312(a). If
the Trustee is not the Registrar, the Company shall furnish to the Trustee at
least seven Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of the
Holders (which list may be conclusively relied upon by the Trustee) of Notes and
the Company shall otherwise comply with TIA Section 312(a).
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Section 2.06 TRANSFER AND EXCHANGE.
(i) Transfer and Exchange of Global Notes.
A Global Note may not be transferred as a whole except by the
Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary. All
Global Notes will be exchanged by the Company for Definitive Notes if (A) the
Company delivers to the Trustee written notice from the Depositary that it is
unwilling or unable to continue to act as Depositary or that it is no longer a
clearing agency registered under the Exchange Act and, in either case, a
successor Depositary is not appointed by the Company within 120 days after the
date of such notice from the Depositary or (B) the Company in its sole
discretion determines that the Global Notes (in whole but not in part) should be
exchanged for Definitive Notes and delivers a written notice to such effect to
the Trustee; provided that in no event shall the Regulation S Temporary Global
Note be exchanged by the Company for Definitive Notes prior to (x) the
expiration of the Restricted Period and (y) the receipt by the Registrar of any
certificates determined by the Company to be required pursuant to Rule
903(c)(3)(ii)(B) under the Securities Act. Upon the occurrence of either of the
preceding events in (A) or (B) above, Definitive Notes shall be issued in such
names as the Depositary shall instruct the Trustee. Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu
of, a Global Note or any portion thereof, pursuant to this Section 2.06 or
Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form
of, and shall be, a Global Note. A Global Note may not be exchanged for another
Note other than as provided in this Section 2.06(i), however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.06(ii), (iii) or (vi) hereof.
(ii) Transfer and Exchange of Beneficial Interests in the
Global Notes.
The transfer and exchange of beneficial interests in the
Global Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial interests
in the Restricted Global Notes shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (A) or (B) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(A) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be
transferred to Persons who
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take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the
transfer restrictions set forth in the Private Placement
Legend; provided, however, that prior to the expiration of the
Restricted Period, transfers of beneficial interests in the
Temporary Regulation S Global Note may not be made to a U.S.
Person or for the account or benefit of a U.S. Person (other
than an Initial Purchaser). Beneficial interests in any
Unrestricted Global Note may be transferred to Persons who
take delivery thereof in the form of a beneficial interest in
an Unrestricted Global Note. No written orders or instructions
shall be required to be delivered to the Registrar to effect
the transfers described in this Section 2.06(ii)(A).
(B) All Other Transfers and Exchanges of Beneficial Interests
in Global Notes. In connection with all transfers and
exchanges of beneficial interests that are not subject to
Section 2.06(ii)(A) above, the transferor of such beneficial
interest must deliver to the Depositary either (A) (1) a
written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Note in an
amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the
Participant account to be credited with such increase or (B)
(1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be
issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive
Note shall be registered to effect the transfer or exchange
referred to in (1) above, provided that in no event shall
Definitive Notes be issued upon the transfer or exchange of
beneficial interests in the Regulation S Temporary Global Note
prior to (x) the expiration of the Restricted Period and (y)
the receipt by the Registrar of any certificates determined by
the Company to be required pursuant to Rule 903 under the
Securities Act. Upon consummation of an Exchange Offer by the
Company in accordance with Section 2.06(vi) hereof, the
requirements of this Section 2.06(ii)(B) shall be deemed to
have been satisfied upon receipt by the Registrar of the
instructions contained in the Letter of Transmittal delivered
by the Holder of such beneficial interests in the Restricted
Global Notes. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Notes
contained in this Indenture and the Notes or otherwise
applicable under the Securities Act, the Trustee shall adjust
the principal
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amount of the relevant Global Note(s) pursuant to Section
2.06(viii) hereof.
(C) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global
Note may be transferred to a Person who takes delivery thereof
in the form of a beneficial interest in another Restricted
Global Note if the transfer complies with the requirements of
Section 2.06(ii)(B) above and the Registrar receives the
following:
(1) if the transferee will take delivery in the form
of a beneficial interest in the 144A Global Note,
then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the
certifications in item (1) thereof;
(2) if the transferee will take delivery in the form
of a beneficial interest in the Regulation S
Temporary Global Note or the Regulation S Global
Note, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(3) if the transferee will take delivery in the form
of a beneficial interest in the IAI Global Note, then
the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications and
certificates and Opinion of Counsel required by item
(3) thereof, if applicable.
(D) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the
Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any holder thereof
for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note if the
exchange or transfer complies with the requirements of Section
2.06(ii)(B) above and:
(1) such exchange or transfer is effected pursuant to
an Exchange Offer in accordance with the Registration
Rights Agreement and the holder of the beneficial
interest to be exchanged, in the case of an exchange,
or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal or
via the Depositary's book-entry system that it is not
(1) a broker-dealer, (2) a Person participating in
the distribution of the Exchange Notes or (3) a
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Person who is an affiliate (as defined in Rule 144)
of the Company;
(2) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the
Registration Rights Agreement;
(3) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement
in accordance with the Registration Rights Agreement;
or
(4) the Registrar receives the following:
(a) if the holder of such beneficial
interest in a Restricted Global Note
proposes to exchange such beneficial
interest for a beneficial interest in an
Unrestricted Global Note, a certificate from
such holder in the form of Exhibit C hereto,
including the certifications in item (1)(a)
thereof; or
(b) if the holder of such beneficial
interest in a Restricted Global Note
proposes to transfer such beneficial
interest to a Person who shall take delivery
thereof in the form of a beneficial interest
in an Unrestricted Global Note, a
certificate from such holder in the form of
Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph
(4), if the Registrar so requests or if the
Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer
required in order to maintain compliance with the
Securities Act.
If any such transfer is effected pursuant to subparagraph (2)
or (4) above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (2) or (4) above.
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Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
(iii) Transfer or Exchange of Beneficial Interests for
Definitive Notes.
(A) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial
interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note or to
transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Restricted Definitive Note,
then, upon receipt by the Registrar of the following
documentation:
(1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note,
a certificate from such holder in the form of Exhibit
C hereto, including the certifications in item (2)(a)
thereof;
(2) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A, a certificate
to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
(3) if such beneficial interest is being transferred
to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904, a certificate
to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(4) if such beneficial interest is being transferred
pursuant to an exemption from the registration
requirements of the Securities Act in accordance with
Rule 144, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in
item (3)(a) thereof;
(5) if such beneficial interest is being transferred
to an Institutional Accredited Investor in reliance
on an exemption from the registration requirements of
the Securities Act other than those listed in
subparagraphs (2) through (4) above, a certificate to
the effect set forth in Exhibit B hereto, including
the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable;
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(6) if such beneficial interest is being transferred
to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(b)
thereof; or
(7) if such beneficial interest is being transferred
pursuant to an effective registration statement under
the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to
Section 2.06(viii) hereof, and the Company shall execute and
the Trustee shall authenticate and deliver to the Person
designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in
exchange for a beneficial interest in a Restricted Global Note
pursuant to this Section 2.06(iii) shall be registered in such
name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall
instruct the Registrar through written instructions from the
Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Notes to the Persons in
whose names such Notes are so registered. Any Definitive Note
issued in exchange for a beneficial interest in a Restricted
Global Note pursuant to this Section 2.06(iii)(A) shall bear
the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
Notwithstanding Sections 2.06(iii)(A)(1) and (3) hereof, a
beneficial interest in the Regulation S Temporary Global Note
may not be exchanged for a Definitive Note or transferred to a
Person who takes delivery thereof in the form of a Definitive
Note prior to (x) the expiration of the Restricted Period and
(y) the receipt by the Registrar of any certificates
determined by the Company to be required pursuant to Rule
903(c)(3)(ii)(B) under the Securities Act, except in the case
of a transfer pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule
904.
(B) Beneficial Interests in Restricted Global Notes to
Unrestricted Definitive Notes. A holder of a beneficial
interest in a Restricted Global Note may exchange such
beneficial interest for an Unrestricted Definitive Note or may
transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive
Note only if:
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(1) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of such
beneficial interest, in the case of an exchange, or
the transferee, in the case of a transfer, certifies
in the applicable Letter of Transmittal that it is
not (1) a broker-dealer, (2) a Person participating
in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144)
of the Company;
(2) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the
Registration Rights Agreement;
(3) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement
in accordance with the Registration Rights Agreement;
or
(4) the Registrar receives the following:
(a) if the holder of such beneficial
interest in a Restricted Global Note
proposes to exchange such beneficial
interest for a Definitive Note that does not
bear the Private Placement Legend, a
certificate from such holder in the form of
Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(b) if the holder of such beneficial
interest in a Restricted Global Note
proposes to transfer such beneficial
interest to a Person who shall take delivery
thereof in the form of a Definitive Note
that does not bear the Private Placement
Legend, a certificate from such holder in
the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (B), if
the Registrar so requests or if the Applicable Procedures so
require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
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(C) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial
interest in an Unrestricted Global Note proposes to exchange
such beneficial interest for a Definitive Note or to transfer
such beneficial interest to a Person who takes delivery
thereof in the form of a Definitive Note, then, upon
satisfaction of the conditions set forth in Section
2.06(ii)(B) hereof, the Trustee shall cause the aggregate
principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(viii) hereof, and the
Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 2.06(iii)(C) shall be registered in
such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall
instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Notes to the Persons in
whose names such Notes are so registered. Any Definitive Note
issued in exchange for a beneficial interest pursuant to this
Section 2.06(iii)(C) shall not bear the Private Placement
Legend.
(iv) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(A) Restricted Definitive Notes to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted
Definitive Note proposes to exchange such Note for a
beneficial interest in a Restricted Global Note or to transfer
such Restricted Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in a
Restricted Global Note, then, upon receipt by the Registrar of
the following documentation:
(1) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial
interest in a Restricted Global Note, a certificate
from such Holder in the form of Exhibit C hereto,
including the certifications in item (2)(b) thereof;
(2) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1)
thereof;
(3) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore
transaction in accordance with
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Rule 903 or Rule 904, a certificate to the effect set
forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(4) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the
registration requirements of the Securities Act in
accordance with Rule 144, a certificate to the effect
set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(5) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor
in reliance on an exemption from the registration
requirements of the Securities Act other than those
listed in subparagraphs (2) through (4) above, a
certificate to the effect set forth in Exhibit B
hereto, including the certifications, certificates
and Opinion of Counsel required by item (3) thereof,
if applicable;
(6) if such Restricted Definitive Note is being
transferred to the Company or any of its
Subsidiaries, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in
item (3)(b) thereof; or
(7) if such Restricted Definitive Note is being
transferred pursuant to an effective registration
statement under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including
the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note,
increase or cause to be increased the aggregate principal
amount of, in the case of clause (iv)(A)(1) above, the
appropriate Restricted Global Note, in the case of clause
(iv)(A)(2) above, the 144A Global Note, in the case of clause
(iv)(A)(3) above, the Regulation S Global Note, and in all
other cases, the IAI Global Note.
(B) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Definitive
Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Restricted
Definitive Note to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note
only if:
(1) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the
Registration Rights Agree-
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ment and the Holder, in the case of an exchange, or
the transferee, in the case of a transfer, certifies
in the applicable Letter of Transmittal that it is
not (1) a broker-dealer, (2) a Person participating
in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144)
of the Company;
(2) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the
Registration Rights Agreement;
(3) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement
in accordance with the Registration Rights Agreement;
or
(4) the Registrar receives the following:
(a) if the Holder of such Definitive Notes
proposes to exchange such Notes for a
beneficial interest in the Unrestricted
Global Note, a certificate from such Holder
in the form of Exhibit C hereto, including
the certifications in item (1)(c) thereof;
or
(b) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person
who shall take delivery thereof in the form
of a beneficial interest in the Unrestricted
Global Note, a certificate from such Holder
in the form of Exhibit B hereto, including
the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph
(B), if the Registrar so requests or if the
Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer
required in order to maintain compliance with the
Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(iv)(B), the
Trustee shall cancel the Definitive Notes and
increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note;
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(C) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted
Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such
Definitive Notes to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note
at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Unrestricted
Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global
Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest in a Global Note is effected pursuant to
subparagraphs (iv)(B)(2), (iv)(B)(4) or (iv)(C) above at a
time when an appropriate Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication
Order in accordance with Section 2.02 hereof, the Trustee
shall authenticate one or more appropriate Global Notes in an
aggregate principal amount equal to the principal amount of
Definitive Notes so transferred.
(v) Transfer and Exchange of Definitive Notes for Definitive
Notes.
Upon request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.06(v), the Registrar shall
register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Notes duly endorsed or accompanied by
a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly authorized in writing. In
addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following
provisions of this Section 2.06(v).
(A) Restricted Definitive Notes to Restricted Definitive
Notes. Any Restricted Definitive Note may be transferred to
and registered in the name of Persons who take delivery
thereof in the form of a Restricted Definitive Note if the
Registrar receives the following:
(1) if the transfer will be made pursuant to Rule
144A, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(2) if the transfer will be made pursuant to Rule 903
or Rule 904, then the transferor must deliver a
certificate in the form of
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Exhibit B hereto, including the certifications in
item (2) thereof; and
(3) if the transfer will be made pursuant to any
other exemption from the registration requirements of
the Securities Act, then the transferor must deliver
a certificate in the form of Exhibit B hereto,
including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if
applicable.
(B) Restricted Definitive Notes to Unrestricted Definitive
Notes. Any Restricted Definitive Note may be exchanged by the
Holder thereof for an Unrestricted Definitive Note or
transferred to a Person or Persons who take delivery thereof
in the form of an Unrestricted Definitive Note if:
(1) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the
case of an exchange, or the transferee, in the case
of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a
Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(2) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(3) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement
in accordance with the Registration Rights Agreement;
or
(4) the Registrar receives the following:
(a) if the Holder of such Restricted
Definitive Notes proposes to exchange such
Notes for an Unrestricted Definitive Note, a
certificate from such Holder in the form of
Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
(b) if the Holder of such Restricted
Definitive Notes proposes to transfer such
Notes to a Person who shall take delivery
thereof in the form of an Unrestricted
Definitive
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Note, a certificate from such Holder in the
form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (B), if
the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such
exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in
the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
(C) Unrestricted Definitive Notes to Unrestricted Definitive
Notes. A Holder of Unrestricted Definitive Notes may transfer
such Notes to a Person who takes delivery thereof in the form
of an Unrestricted Definitive Note. Upon receipt of a request
to register such a transfer, the Registrar shall register the
Unrestricted Definitive Notes pursuant to the instructions
from the Holder thereof.
(vi) Exchange Offer.
Upon the occurrence of an Exchange Offer in accordance with
the Registration Rights Agreement, the Company shall issue and, upon receipt of
an Authentication Order in accordance with Section 2.02 hereof, the Trustee
shall authenticate (i) one or more Unrestricted Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial interests in
the Restricted Global Notes tendered for acceptance by Persons that certify in
the applicable Letters of Transmittal or via the Depositary's book-entry system
that (x) they are not broker-dealers, (y) they are not participating in a
distribution of the Exchange Notes and (z) they are not affiliates (as defined
in Rule 144) of the Company, and accepted for exchange in the Exchange Offer and
(ii) Definitive Notes in an aggregate principal amount equal to the principal
amount of the Restricted Definitive Notes accepted for exchange in the Exchange
Offer. Concurrently with the issuance of such Notes, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company shall execute and the Trustee shall
authenticate and make available for delivery to the Persons designated by the
Holders of Definitive Notes so accepted Definitive Notes in the appropriate
principal amount.
(vii) Legends. The following legends shall appear on the face
of all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
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(A) Private Placement Legend.
(1) Except as permitted by subparagraph (2) below,
each Global Note and each Definitive Note (and all
Notes issued in exchange therefor or substitution
thereof) shall bear the legend in substantially the
following form:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT OR IN ACCORDANCE WITH AN APPLICABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (SUBJECT TO THE DELIVERY OF SUCH EVIDENCE, IF
ANY, REQUIRED UNDER THE INDENTURE PURSUANT TO WHICH THIS NOTE IS ISSUED) AND IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER JURISDICTION. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER
OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(a) TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (d)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), SUBJECT TO THE RECEIPT BY THE REGISTRAR OF A CERTIFICATION OF THE
TRANSFEROR AND AN OPINION OF COUNSEL TO THE EFFECT THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (2) TO THE COMPANY OR (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL AND
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EACH SUBSEQUENT HOLDER IS REQUIRED TO NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTION SET FORTH IN (A) ABOVE."
(2) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs
(ii)(D), (iii)(B), (iii)(C), (iv)(B), (iv)(C),
(v)(B), (v)(C) or (vi) of this Section 2.06 (and all
Notes issued in exchange therefor or substitution
thereof) shall not bear the Private Placement Legend.
(B) Global Note Legend. Each Global Note shall bear a legend
in substantially the following form (the "Global Note
Legend"):
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(i) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
THE COMPANY."
(C) Regulation S Temporary Global Note Legend. The Regulation
S Temporary Global Note shall bear a legend in substantially
the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON."
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(viii) Cancellation and/or Adjustment of Global Notes.
At such time as all beneficial interests in a particular
Global Note have been exchanged for Definitive Notes or a particular Global Note
has been redeemed, repurchased or canceled in whole and not in part, such Global
Note shall be returned to or retained and canceled by the Trustee in accordance
with Section 2.11 hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note or for Definitive Notes, the principal amount of Notes represented
by such Global Note shall be reduced accordingly and an endorsement shall be
made on such Global Note by the Trustee or by the Depositary at the direction of
the Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
(ix) General Provisions Relating to Transfers and Exchanges.
(A) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate
Global Notes and Definitive Notes upon the Company's order or
at the Registrar's request.
(B) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a
Definitive Note for any registration of transfer or exchange,
but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer
pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.14 and 9.05
hereof).
(C) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in
whole or in part, except the unredeemed portion of any Note
being redeemed in part.
(D) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or
Definitive Notes shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Global Notes or
Definitive Notes surrendered upon such registration of
transfer or exchange.
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(E) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a
period beginning at the opening of business 15 days before the
day of the mailing of notice of redemption under Section 3.03
hereof and ending at the close of business on such day, (B) to
register the transfer of or to exchange any Note so selected
for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part or (c) to register
the transfer of or to exchange a Note between a record date
and the next succeeding Interest Payment Date.
(F) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company
may deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for the purpose
of receiving payment of principal of and interest on such
Notes and for all other purposes, and none of the Trustee, any
Agent or the Company shall be affected by notice to the
contrary.
(G) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02
hereof.
(H) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this
Section 2.06 to effect a registration of transfer or exchange
may be submitted by facsimile.
Section 2.07 REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon receipt of an Authentication Order, shall authenticate a replacement Note
if the Trustee's requirements are met. An indemnity bond must be supplied by the
Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Note is replaced. The Company may
charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
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Section 2.08 OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest in a Global Note effected
by the Trustee in accordance with the provisions hereof, and those described in
this Section as not outstanding. Except as set forth in Section 2.09 hereof, a
Note does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note; however, Notes held by the Company or a Subsidiary of
the Company shall not be deemed to be outstanding for purposes of Section
3.07(i), (ii) and (iii) hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser or protected purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 2.09 TREASURY NOTES.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that a Responsible Officer of the
Trustee actually knows are so owned shall be so disregarded.
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Section 2.10 TEMPORARY NOTES.
Until certificates representing Notes are ready for delivery,
the Company may prepare and the Trustee, upon receipt of an Authentication
Order, shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of certificated Notes but may have variations that the
Company considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate definitive Notes in exchange for temporary
Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
Section 2.11 CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall dispose of
the canceled Notes in its customary manner (subject to the record retention
requirements of the Exchange Act). The Company may not issue new Notes to
replace Notes that it has paid or that have been delivered to the Trustee for
cancellation.
Section 2.12 DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.01 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment. The Company shall fix or cause to be fixed
each such special record date and payment date, provided that no such special
record date shall be less than 10 days prior to the related payment date for
such defaulted interest. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name
and at the expense of the Company) shall mail or cause to be mailed to Holders a
notice that states the special record date, the related payment date and the
amount of such interest to be paid.
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Section 2.13 CUSIP NUMBERS.
The Company in issuing the Notes may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use CUSIP numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or the
omission of such numbers. The Company will promptly notify the Trustee of any
change in the CUSIP numbers.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 30 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Notes to be redeemed, (iv) the redemption price and (v) the CUSIP
numbers, if any, of the Notes to be redeemed; provided that if less than all
Notes are to be redeemed or purchased, the Company shall furnish the Officers'
Certificate at least 45 days before the redemption date.
Section 3.02 SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed or purchased
in an offer to purchase at any time, the Trustee shall select the Notes to be
redeemed or purchased among the Holders of the Notes in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot
or in accordance with any other method the Trustee considers fair and
appropriate. No Notes of $1,000 or less shall be redeemed in part. In the event
of partial redemption by lot, the particular Notes to be redeemed shall be
selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption date by the Trustee from the outstanding Notes not
previously called for redemption.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Notes of a
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Holder are to be redeemed, the entire outstanding amount of Notes held by such
Holder, even if not a multiple of $1,000, shall be redeemed. Except as provided
in the preceding sentence, provisions of this Indenture that apply to Notes
called for redemption also apply to portions of Notes called for redemption.
Section 3.03 NOTICE OF REDEMPTION.
Subject to the provisions of Section 3.09 hereof, at least 30
days but not more than 60 days before a redemption date, the Company shall mail
or cause to be mailed, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes (including CUSIP
number(s), if any), to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price and the amount of accrued but unpaid
interest;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption date
upon surrender of such Note, a new Note or Notes in principal amount equal to
the unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to accrue on
and after the redemption date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being redeemed;
and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the
Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense; provided,
however, that the
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Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
Section 3.04 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price and the amount of accrued but unpaid
interest. A notice of redemption may not be conditional.
Section 3.05 DEPOSIT OF REDEMPTION PRICE.
Prior to 10:00 a.m. Eastern Time on the redemption date, the
Company shall deposit with the Paying Agent (other than the Company or any of
its Subsidiaries) money sufficient to pay the redemption price of and accrued
interest on all Notes to be redeemed on that date. The Paying Agent shall
promptly return to the Company any money deposited with the Paying Agent by the
Company in excess of the amounts necessary to pay the redemption price of, and
accrued interest on, all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest and, if then accruing
pursuant to the Registration Rights Agreement, Liquidated Damages, shall cease
to accrue on the Notes or the portions of Notes called for redemption. If a Note
is redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest and Liquidated
Damages, if any, shall be paid to the Person in whose name such Note was
registered at the close of business on such record date. If any Note called for
redemption shall not be so paid upon surrender for redemption because of the
failure of the Company to comply with the preceding paragraph, Liquidated
Damages, if any, shall continue to accrue if so required by the Registration
Rights Agreement and interest shall be paid on the unpaid principal, from the
redemption date until such principal is paid, and to the extent lawful on any
interest not paid on such unpaid principal, in each case at the rate provided in
the Notes and in Section 4.01 hereof.
Section 3.06 NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon receipt of an Authentication Order, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
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Section 3.07 OPTIONAL REDEMPTION.
(i) Except as provided below and in the Registration Rights Agreement, the Notes
shall not be redeemable at the Company's option prior to October 2, 2005.
Thereafter, the Company may redeem all or a part of the Notes upon not less than
30 nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the applicable redemption
date, if redeemed during the twelve-month period beginning on October 2 of the
years indicated below:
Year Percentage
---- ----------
2005 106.500%
2006 104.333%
2007 102.167%
2008 and thereafter 100.000%
(i) Notwithstanding the foregoing, at any time prior to
October 2, 2002, the Company may redeem the Notes at its option, in whole or in
an aggregate principal amount not to exceed $75 million (less any amounts
redeemed pursuant to Section 3.07(iii) below) at a redemption price of 100.00%
of the principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages thereon, if any.
(ii) In addition to the foregoing, at any time prior to
October 2, 2003, the Company may on any one or more occasions redeem up to $75
million of the aggregate principal amount of Notes (less any amounts redeemed
pursuant to Section 3.07(ii) above) issued under this Indenture at a redemption
price of 113.000% of the principal amount thereof, plus accrued and unpaid
interest and Liquidated Damages thereon, if any, with the net cash proceeds of
one or more Equity Offerings; provided that: (A) at least $125 million of the
aggregate principal amount of Notes issued under this Indenture remains
outstanding immediately after the occurrence of any such redemption (excluding
Notes held by the Company and its Subsidiaries); and (B) the redemption must
occur within 90 days of the date of the closing of such Equity Offering.
(iii) Any redemption pursuant to this Section 3.07 shall be
made pursuant to the provisions of Section 3.01 through 3.06 hereof.
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Section 3.08 MANDATORY REDEMPTION.
The Company shall not be required to make mandatory redemption
or sinking fund payments with respect to the Notes.
Section 3.09 OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
In the event that, pursuant to Section 4.10 hereof, the
Company shall be required to commence an offer to all Holders to purchase Notes
(an "Asset Sale Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law or for no longer than 20
additional Business Days as the Company in good ▇▇▇▇▇ ▇▇▇▇▇ desirable and in the
interests of the Holders of the Notes (the "Offer Period"). No later than five
Business Days after the termination of the Offer Period (the "Purchase Date"),
the Company shall purchase the principal amount of Notes required to be
purchased pursuant to Section 4.10 hereof (the "Offer Amount") or, if less than
the Offer Amount has been tendered, all Notes tendered in response to the Asset
Sale Offer. Payment for any Notes so purchased shall be made in the same manner
as interest payments are made.
If the Purchase Date is on or after an interest record date
and on or before the related interest payment date, any accrued and unpaid
interest shall be paid to the Person in whose name a Note is registered at the
close of business on such record date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company
shall send, or cause to be sent, by first class mail, a notice to the Trustee
and each of the Holders. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Asset Sale
Offer. The Asset Sale Offer shall be made to all Holders. The notice, which
shall govern the terms of the Asset Sale Offer, shall state:
(i) that the Asset Sale Offer is being made pursuant to this
Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer
shall remain open;
(ii) the Offer Amount, the purchase price and accrued but
unpaid interest and the Purchase Date;
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(iii) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(iv) that, unless the Company defaults in making such payment,
any Note accepted for payment pursuant to the Asset Sale Offer shall cease to
accrue interest after the Purchase Date;
(v) that Holders electing to have a Note purchased pursuant to
an Asset Sale Offer may only elect to have all of such Note purchased and may
not elect to have only a portion of such Note purchased;
(vi) that Holders electing to have a Note purchased pursuant
to any Asset Sale Offer shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, or transfer the Note by book-entry transfer, to the Company, a
Depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Purchase Date;
(vii) that Holders shall be entitled to withdraw their
election if the Company, the Depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Note purchased;
(viii) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Company shall select the
Notes to be purchased on a pro rata basis (with such adjustments as may be
deemed appropriate by the Company so that only Notes in denominations of $1,000,
or integral multiples thereof, shall be purchased); and
(ix) that Holders whose Notes were purchased only in part
shall be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered (or transferred by book-entry transfer).
On or before 10:00 a.m. on the Purchase Date, the Company
shall, to the extent lawful, accept for payment, on a pro rata basis to the
extent necessary, the Offer Amount or portions thereof tendered pursuant to the
Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes
tendered, and shall deliver to the Trustee an Officers' Certificate stating that
such Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.09. The Company, the Depositary or
the Paying Agent, as the case may be, shall promptly (but in
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any case not later than five days after the Purchase Date) mail or deliver to
each tendering Holder an amount equal to the purchase price of the Notes
tendered by such Holder and accepted by the Company for purchase, and the
Company shall promptly issue a new Note, and the Trustee, upon written request
from the Company shall authenticate and mail or deliver such new Note to such
Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered. Any Note not so accepted shall be promptly mailed or delivered by
the Company to the Holder thereof. The Company shall publicly announce the
results of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the provisions
of Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01 PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest and Liquidated Damages, if any, on the Notes on
the dates and in the manner provided in the Notes. Principal, premium, if any,
and interest and Liquidated Damages, if any, shall be considered paid on the
date due if the Paying Agent, if other than the Company or a Subsidiary thereof,
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 and Liquidated Damages, if any,
then due. The Company shall pay all Liquidated Damages, if any, in the same
manner on the dates and in the amounts set forth in the Registration Rights
Agreement.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the then applicable interest rate on the
Notes to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Liquidated Damages (without regard to any applicable grace period)
at the same rate to the extent lawful.
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Section 4.02 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 Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
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 office of the Trustee at ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as one such office or agency of
the Company in accordance with Section 2.03 hereof.
Section 4.03 REPORTS.
Whether or not required by the SEC, so long as any Notes are
outstanding, the Company shall furnish to the Trustee (for provision to the
Holders of Notes) within the time periods specified in the SEC's rules and
regulations: (i) all quarterly and annual financial information that would be
required to be contained in a filing with the SEC on Forms 10-Q and 10-K if the
Company were required to file such Forms, including a "Management's Discussion
and Analysis of Financial Condition and Results of Operations" and, with respect
to the annual information only, a report on the annual financial statements by
the Company's certified independent accountants; and (ii) all current reports
that would be required to be filed with the SEC on Form 8-K if the Company were
required to file such reports.
In addition, whether or not required by the SEC, the Company
shall file a copy of all the information and reports referred to in clauses (i)
and (ii) above with the
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SEC for public availability within the time periods specified in the SEC's rules
and regulations (unless the SEC will not accept such a filing) and make such
information available to securities analysts and prospective investors upon
request. In addition, the Company and the Subsidiary Guarantors (for so long as
any Notes remain outstanding) shall furnish to the Holders and to securities
analysts and prospective investors, upon their request, the information required
to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 4.04 COMPLIANCE CERTIFICATE.
(i) The Company and each Guarantor shall (to the extent that
such Guarantor is so required under the TIA) deliver to the Trustee within 90
days after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge and
what action the Company is taking or proposes to take with respect thereto) and
that to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto. For purposes of this paragraph, such compliance shall
be determined without regard to any period of grace or requirement of notice
provided under this Indenture.
(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 4.03 hereof shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such
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financial statements, nothing has come to their attention that would lead them
to believe that the Company has violated any provisions of Article 4 or Article
5 hereof or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants shall not
be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(iii) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.
Section 4.05 TAXES.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
Section 4.06 STAY, EXTENSION AND USURY LAWS.
The Company and each of the Guarantors 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 and each of the Guarantors (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it shall not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been enacted.
Section 4.07 RESTRICTED PAYMENTS.
(i) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly:
(A) declare or pay any dividend or make any other payment or
distribution on account of the Company's or any of its
Restricted Subsidiaries' Equity Interests (including, without
limitation, any payment in connection with any merger or
consolidation involving the Company or any of its Restricted
Subsidiaries) or to the direct or indirect holders of the
Company's or any of its Restricted Subsidiaries' Equity
Interests in their capacity as such (other than dividends or
distributions payable in Equity Interests
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(other than Disqualified Stock) of the Company or payable to
the Company or a Restricted Subsidiary of the Company);
(B) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger
or consolidation involving the Company) any Equity Interests
of the Company or any direct or indirect parent of the Company
other than Equity Interests owned by the Company or a
Restricted Subsidiary of the Company;
(C) make any payment on or with respect to the purchase,
redemption, defeasance or other acquisition or retirement for
value, except a payment of interest or principal at or after
the Stated Maturity thereof, of any Subordinated Indebtedness;
or
(D) make any Restricted Investment
(all such payments and other actions set forth in clauses (i)(A) through (i)(D)
above being collectively referred to as "Restricted Payments"),
(ii) unless, at the time of and after giving effect to such
Restricted Payment:
(A) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence of the Restricted
Payment; and
(B) the Company would, at the time of such Restricted Payment
and after giving pro forma effect to such Restricted Payment
as if such Restricted Payment had been made at the beginning
of the applicable four-quarter period, have been permitted to
incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.09 hereof; and
(C) the Restricted Payment, together with the aggregate amount
of all other Restricted Payments made by the Company and its
Restricted Subsidiaries after the Issue Date (excluding
Restricted Payments permitted by clauses (iii)(B) through
(iii)(S) is less than the sum, without duplication, of:
(1) 50% of the Consolidated Net Income of the Company
for the period (taken as one accounting period) from
the beginning of the first fiscal quarter ending
after the Issue Date to the end of the Company's most
recently ended fiscal quarter for which internal
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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 the
deficit), plus
(2) 100% of the aggregate net cash proceeds received
by the Company since the Issue Date as a contribution
to its equity capital, or from the issue or sale of
Equity Interests of the Company (excluding all
proceeds of the Equity Interests initially issued and
upon exercise, exchange or conversion of the Equity
Interests initially issued to JLL approximately
contemporaneously with the Issue Date in connection
with the PCS Acquisition), other than Disqualified
Stock and Designated Preferred Stock, or from the
issue or sale of convertible or exchangeable
Disqualified Stock or convertible or exchangeable
debt securities of the Company that have been
converted into or exchanged for such Equity Interests
(other than Equity Interests (or Disqualified Stock
or debt securities) sold to a Subsidiary of the
Company), plus
(3) the lesser of (x) all cash returns (including
dividends, interest, distributions, returns of
principal and profits on sale) on Restricted
Investments that were made after the Issue Date (less
the cost of disposition, if any); provided that the
amount of cash return on the Restricted Investment
shall be excluded from Consolidated Net Income for
purposes of calculating clause (ii)(C)(1) above on an
after tax basis to the extent included in
Consolidated Net Income, and (y) the initial amount
of such Restricted Investment, plus
(4) upon redesignation of an Unrestricted Subsidiary
as a Restricted Subsidiary not in violation of this
Indenture, the fair market value of the net assets of
such Subsidiary.
(iii) The preceding provisions shall not prohibit:
(A) the payment of any dividend within 60 days after the date
of declaration thereof, if at said date of declaration such
payment would have complied with the provisions of this
Indenture;
(B) any principal payment on or with respect to the
redemption, purchase, retirement, defeasance or other
acquisition or retirement of any Subordinated Indebtedness,
any purchase, redemption or other acquisition or retirement
for value of any Equity Interests of the Company or any direct
or
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indirect parent of the Company or to the direct or indirect
holders of the Company's or any Restricted Subsidiary's Equity
Interests, in their capacity as such, by conversion into or by
exchange for, or out of the net cash proceeds of the
substantially concurrent sale (other than to a Subsidiary of
the Company) of, Equity Interests of the Company (other than
Disqualified Stock); provided, that the amount of any such net
cash proceeds that are utilized for any such redemption,
repurchase, retirement, defeasance or other acquisition shall
be excluded from clause (ii)(C)(2) of the preceding paragraph;
(C) any payment on or with respect to or the defeasance,
redemption, purchase or other acquisition or retirement of
Subordinated Indebtedness with the net cash proceeds from an
incurrence of Permitted Refinancing Indebtedness;
(D) the declaration and payment of any dividend or
distribution by a Restricted Subsidiary of the Company to the
holders of any class of its Equity Interests on a pro rata
basis;
(E) the declaration and payment of dividends and distributions
to holders of any class or series of Disqualified Stock of the
Company issued after the Issue Date in accordance with Section
4.09 hereof;
(F) the declaration and payment of regularly accruing
dividends to holders of any class or series of Designated
Preferred Stock of the Company issued on or after the Issue
Date; provided that at the time of the designation of such
Preferred Stock as Designated Preferred Stock, and after
giving effect to such designation on a pro forma basis (for
purposes of making determinations on a pro forma basis
pursuant to this clause (iii)(F), treating all dividends which
will accrue on such Designated Preferred Stock during the four
full fiscal quarters immediately following such issuance, as
well as all other Designated Preferred Stock then outstanding,
as if the same will in fact be, or have in fact been, paid in
cash), the Company would have been able to incur at least
$1.00 of additional Indebtedness (other than Permitted Debt)
in accordance with Section 4.09 hereof;
(G) the purchase, redemption or other acquisition or
retirement of any shares of Disqualified Stock of the Company
by conversion into, or by exchange for, shares of Refinancing
Disqualified Stock of the Company, or out of the Net Proceeds
of the substantially concurrent sale (other than to a
Subsidiary of the Company) of Refinancing Disqualified Stock
of the Company; and
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(H) the purchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company or
any Restricted Subsidiary of the Company held by any then
current or former member of the Company's (or any of its
Restricted Subsidiaries') management or Board of Directors (or
the estate, heirs or legatees of any such individual) pursuant
to any management or directors' equity subscription agreement
or stock option agreement; provided that the aggregate price
paid (excluding the cancellation of debt owing by such
management member or other individual) for all such purchased,
redeemed, acquired or retired Equity Interests, net of
proceeds received from or as a capital contribution from the
issuance or sale to management investors of Capital Stock of
the Company (including any options, warrants or other rights
in respect thereof), shall not exceed $2.0 million in any
twelve-month period or $15.0 million in the aggregate.
(I) payment or performance under the terms of the Company's
Series A Preferred Stock or the Company's Series B Preferred
Stock or any agreement or instrument related thereto;
(J) the Transactions, including any payments (whether
severance, bonus or otherwise) to management of the Company or
any Restricted Subsidiary (including, without limitation PCS
Holding Corporation and its Subsidiaries) contemplated by the
Transactions, and all expenses related to the Transactions;
(K) payment to any Principal or its Related Party under any
tax sharing or tax indemnification arrangement;
(L) any payment, purchase, redemption, defeasance or other
acquisition or retirement for value of any Subordinated
Indebtedness if (1) such payment or other action is required
by the indenture or other agreement or instrument pursuant to
which such Subordinated Indebtedness was issued as the result
of a Change of Control or similar event, (2) such Change of
Control or similar event requires the Company to make a Change
of Control Offer or the Company has voluntarily made an offer
to purchase all Notes then outstanding on terms at least as
favorable to the Holders as would be required for a Change of
Control Offer to purchase Notes in connection with a Change of
Control; and (3) the Company has purchased all Notes, if any,
properly tendered pursuant to any Change of Control Offer that
resulted from such event or any such offer;
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(M) any Restricted Investment made with the net cash proceeds
from a substantially concurrent sale of Equity Interests of
the Company (other than Disqualified Stock), provided, that
the amount of any such net cash proceeds shall be excluded
from clause (ii)(C)(2) of this Section 4.07;
(N) the payment of cash in lieu of fractional shares of Common
Stock under the Warrants;
(O) payments to JLL or any of its Related Parties, to the
extent considered a Restricted Payment, in an annual amount
not to exceed $500,000 to pay or reimburse its administrative
expenses;
(P) payments to Rite Aid or any of its Affiliates in the
ordinary course of business;
(Q) the redemption or cancellation of the Warrants in
accordance with their terms;
(R) payments to JLL, to the extent considered a Restricted
Payment, in an annual amount not to exceed $1,000,000, for
payment of management consulting or financial advisory
services provided to the Company or any of its Subsidiaries;
and
(S) other Restricted Payments not to exceed $5.0 million at
any one time outstanding.
The amount of all Restricted Payments (other than cash) shall
be the fair market value on the date of the Restricted Payment of the asset(s)
or securities proposed to be transferred or issued to or by the Company or such
Restricted Subsidiary, as the case may be, in accordance with the Restricted
Payment. If the fair market value of any assets or securities that are required
to be valued by this Section 4.07 is in excess of $5.0 million, such value shall
be determined by the Board of Directors.
For purposes of determining compliance with this Section 4.07,
in the event that a Restricted Payment meets the criteria of more than one of
the types of Restricted Payments described in the above clauses, the Company, in
its sole discretion, may order and classify, and from time to time may reorder
and reclassify, such Restricted Payment if it would have been permitted at the
time such Restricted Payment was made and at the time of any such
reclassification.
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Section 4.08 DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.
(i) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or permit to exist or
become effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(A) pay dividends or make any other distributions on its
Capital Stock to the Company or any of its Restricted
Subsidiaries, or with respect to any other interest or
participation in, or measured by, its profits, or pay any
indebtedness owed to the Company or any of its Restricted
Subsidiaries;
(B) make loans or advances to the Company or any of its
Restricted Subsidiaries; or
(C) transfer any of its properties or assets to the Company or
any of its Restricted Subsidiaries.
(ii) However, the preceding restrictions shall not apply to
encumbrances or restrictions existing under or by reason of:
(A) Existing Indebtedness, Equity Interests or other
agreements or instruments as in effect on the Issue Date and
any one or more amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements,
extensions or refinancings thereof, from time to time, in
whole or in part, provided that any such amendment,
modification, restatement, renewal, increase, supplement,
refunding, replacement, extension or refinancing is not
materially more restrictive, taken as a whole, with respect to
such encumbrances and restrictions than those contained in
such Existing Indebtedness, Equity Interest or other agreement
or instrument as in effect on the Issue Date;
(B) this Indenture, the Notes and the Subsidiary Guarantees;
(C) applicable law;
(D) any contract or Equity Interest of a Person acquired
(whether by merger or otherwise) by the Company or any of its
Restricted Subsidiaries as in effect at the time of such
acquisition (except to the extent such contract was entered
into in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not
applicable to any such
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Person, or the properties or assets of any Person, other than
such Person and its Subsidiaries, or the property or assets of
such Person and its Subsidiaries, so acquired, provided that,
in the case of any such contract evidencing Indebtedness, such
Indebtedness was permitted by the terms of this Indenture to
be incurred;
(E) customary non-assignment provisions in leases, licenses
and other agreements entered into in the ordinary course of
business and consistent with past practices;
(F) customary restrictions in agreements, governing Liens
securing obligations of the Company or a Restricted Subsidiary
to the extent such restrictions restrict the transfer of the
property subject to such Liens;
(G) any agreement for the sale or other disposition of a
Restricted Subsidiary that restricts distributions by that
Restricted Subsidiary pending its sale or other disposition;
(H) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such
Permitted Refinancing Indebtedness are not materially more
restrictive, taken as a whole, than those contained in the
agreements governing the Indebtedness being refinanced
(regardless of whether any Indebtedness remains outstanding
and un-refinanced under such agreements);
(I) Liens securing Indebtedness that limit the right of the
debtor to dispose of the assets subject to such Lien;
(J) customary supermajority voting provisions and customary
provisions with respect to the disposition or distribution of
assets or property, each contained in corporate charters,
bylaws, stockholders' agreements, limited liability company
agreements, partnership agreements, joint venture agreements,
asset sale agreements, stock sale agreements and other similar
agreements entered into in the ordinary course of business;
(K) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the
ordinary course of business;
(L) contracts entered into in the ordinary course of business,
not relating to any Indebtedness, and that do not,
individually or in the aggregate, detract from the value of
property or assets of the Company or any Restricted
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Subsidiary in any manner material to the Company or any
Restricted Subsidiary;
(M) customary provisions restricting dispositions of real
property interests set forth in any reciprocal easement
agreements of the Company or any Restricted Subsidiary;
(N) Equity Interests, Indebtedness or other contractual
requirements of a Receivables Subsidiary in connection with a
Qualified Receivables Transaction, provided that such
restrictions apply only to such Receivables Subsidiary;
(O) restrictions on the transfer of property or assets
required by any regulatory authority having jurisdiction over
the Company or any Restricted Subsidiary or any of their
businesses;
(P) restrictions on the transfer of assets contained in any
contract assumed by the Company or any of its Restricted
Subsidiaries as in effect at the time of the acquisition of
such assets (except to the extent such contract was entered
into in connection with or in contemplation of such
acquisition), which restrictions are not applicable to any
assets other than the assets so acquired;
(Q) agreements or instruments governing Indebtedness,
Disqualified Stock or Preferred Stock incurred or issued in
compliance with Section 4.09 of this Indenture if such
encumbrances or restrictions are not materially more
restrictive, taken as a whole, than those contained in this
Indenture; and
(R) any agreement, instrument or Equity Interest that amends,
modifies, restates, renews, increases, supplements, refunds,
replaces, extends or refinances any of the items described in
the preceding clauses of this paragraph (ii), provided that
the encumbrances or restrictions set forth therein are not
materially more restrictive, taken as a whole, than those
contained in the predecessor agreement, instrument or Equity
Interest.
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Section 4.09 INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, Guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur") any
Indebtedness (including Acquired Debt), and the Company shall not issue any
Disqualified Stock and shall not permit any of its Restricted Subsidiaries to
issue any shares of Preferred Stock; provided, however, that the Company may
incur Indebtedness (including Acquired Debt) or issue Disqualified Stock, and
the Guarantors may incur Indebtedness or issue Preferred Stock, if the Fixed
Charge Coverage Ratio for the Company's most recently ended four full fiscal
quarters for which financial statements are available immediately preceding the
date on which such additional Indebtedness is incurred or such Disqualified
Stock or Preferred Stock is issued would have been at least 2.0 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 Preferred
Stock or Disqualified Stock had been issued, as the case may be, and the
proceeds therefrom had been applied, at the beginning of such four-quarter
period.
The first paragraph of this Section 4.09 shall not prohibit
any of the following (collectively, "Permitted Debt"):
(i) the incurrence by the Company and any Guarantor of
additional Indebtedness and letters of credit under Credit Facilities in an
aggregate principal amount at any one time outstanding under this clause (i)
(with letters of credit being deemed to have a principal amount equal to the
face amount thereof) not to exceed $875.0 million;
(ii) the Existing Indebtedness;
(iii) the incurrence by the Company and the Guarantors of
Indebtedness under this Indenture;
(iv) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage
financings or purchase money obligations or the issuance of Preferred Stock or
Disqualified Stock, in each case, incurred or issued for the purpose of
financing all or any part of the purchase price or cost of construction or
improvement of property, plant, equipment, inventory or other tangible assets
used in the business of the Company and its Restricted Subsidiaries and related
financing costs, in an aggregate principal amount, including all Permitted
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Refinancing Indebtedness incurred to refinance any Indebtedness incurred
pursuant to this clause (iv), not to exceed the greater of $65.0 million and 6%
of Tangible Assets;
(v) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to refinance, Indebtedness (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred under the
first paragraph of this Section 4.09 or clauses (ii), (iii), (iv), (v), (xiv),
(xv), (xvii) or (xix) of this Section 4.09;
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and any
of its Restricted Subsidiaries; provided, however, that:
(A) if the Company or any Guarantor is the obligor on such
Indebtedness, unless such Indebtedness is owing to the Company
or another Guarantor, such Indebtedness must be expressly
subordinated to the prior payment in full in cash of all
Obligations with respect to the Notes, in the case of the
Company, or the Subsidiary Guarantee, in the case of a
Guarantor; and
(B) (x) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by
a Person other than the Company or a Restricted Subsidiary
thereof and (y) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a
Restricted Subsidiary thereof; shall be deemed, in each case,
to constitute an incurrence of such Indebtedness by the
Company or such Restricted Subsidiary, as the case may be,
that was not permitted by this clause (vi);
(vii) the issuance by any Restricted Subsidiary of Preferred
Stock to the Company and any of its Restricted Subsidiaries; provided, however,
that (a) any subsequent issuance or transfer of Equity Interests that results in
any such Preferred Stock being held by a Person other than the Company or a
Restricted Subsidiary thereof and (b) any sale or other transfer of any such
Preferred Stock to a Person that is not either the Company or a Restricted
Subsidiary thereof, shall be deemed, in each case, to constitute an issuance of
such Preferred Stock by such Restricted Subsidiary that was not permitted by
this clause (vii);
(viii) the issuance of Refinancing Disqualified Stock and
Refinancing Subsidiary Preferred Stock;
(ix) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing
or hedging (x) interest rate risk with respect to any floating or fixed rate
obligation that is permitted by
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the terms of this Indenture to be outstanding or (y) fluctuations in foreign
currency exchange rates or commodity prices, with respect to currencies or
commodities used by the Company or its Restricted Subsidiaries in the ordinary
course of business;
(x) the Guarantee by the Company or any of the Guarantors of
Indebtedness of the Company or a Restricted Subsidiary of the Company that was
permitted to be incurred by another provision of this Section 4.09;
(xi) the accrual of interest, the accretion or amortization of
original issue discount, the payment of interest on any Indebtedness in the form
of additional Indebtedness with the same terms, and the payment of dividends on
Disqualified Stock or Preferred Stock of Restricted Subsidiaries in the form of
additional shares of the same class of Disqualified Stock or Preferred Stock of
Restricted Subsidiaries shall not be deemed to be an incurrence of Indebtedness
or an issuance of Disqualified Stock or Preferred Stock of Restricted
Subsidiaries for purposes of this Section 4.09; provided, that the amount of
Disqualified Stock is included in Fixed Charges of the Company as accrued;
(xii) Indebtedness of the Company or any Restricted Subsidiary
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of business;
provided, that such Indebtedness is extinguished within five business days of
incurrence;
(xiii) Indebtedness of the Company or any of its Restricted
Subsidiaries represented by letters of credit for the account of the Company or
such Restricted Subsidiary, as the case may be, including, without limitation,
in order to provide security for workers' compensation claims or payment
obligations in connection with self-insurance and other Indebtedness with
respect to workers' compensation claims, self-insurance and similar obligations
of the Company or any Restricted Subsidiary;
(xiv) the incurrence by the Company or any Restricted
Subsidiary of additional Indebtedness, or the issuance of Disqualified Stock or,
in the case of a Restricted Subsidiary, Preferred Stock, in an aggregate
principal amount (or accreted value, redemption price or liquidation preference,
as applicable) (which amount may, but need not be, incurred in whole or in part
under the Credit Facilities) at any time outstanding, including all Permitted
Refinancing Indebtedness and Refinancing Disqualified Stock incurred to
refinance any Indebtedness or Disqualified Stock or Preferred Stock incurred
pursuant to this clause (xiv), not to exceed $65.0 million, provided, that no
more than $30.0 million of which may be incurred or issued by Restricted
Subsidiaries that are not Guarantors;
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(xv) Indebtedness arising from any agreement entered into by
the Company or any of its Restricted Subsidiaries providing for indemnification,
purchase price adjustment, holdback, contingency payment obligations based on
the performance of the acquired or disposed assets or similar obligations (other
than Guarantees of Indebtedness) incurred by any Person in connection with the
acquisition or disposition of assets permitted by this Indenture;
(xvi) trade letters of credit, performance and surety bonds,
completion guarantees or similar arrangements of the Company or any of its
Restricted Subsidiaries in the ordinary course of business;
(xvii) Acquired Debt acquired or assumed by the Company or a
Restricted Subsidiary of the Company, or resulting from the merger or
consolidation of one or more Persons into or with the Company or one or more
Restricted Subsidiaries of the Company; provided, that (a) such Acquired Debt is
not incurred in contemplation of the respective acquisition, merger or
consolidation, and (b) after giving effect to any acquisition related to the
Acquired Debt acquired or assumed pursuant to this clause (xvii), either (I) the
Company would 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 this Section 4.09, or (II) the Fixed Charge Coverage Ratio is
greater than it was immediately prior to giving effect to such acquisition;
(xviii) the incurrence by a Receivables Subsidiary of
Indebtedness in a Qualified Receivables Transaction; and
(xix) Indebtedness not to exceed $50.0 million for the last
event listed on Schedule 4.01(f), as in effect on the Issue Date, of the Credit
Agreement (net of amounts covered by insurance or indemnity agreements provided
by a reputable and credit worthy insurance company or other Person).
For purposes of determining compliance with this Section 4.09,
in the event that an item of proposed Indebtedness or stock meets the criteria
of more than one of the categories of Permitted Debt described in clauses (i)
through (xix) above, or is entitled to be incurred or issued pursuant to the
first paragraph of this Section 4.09, the Company shall be permitted to classify
such item of Indebtedness or stock on the date of its incurrence, or from time
to time reclassify all or a portion of such item of Indebtedness or stock, in
any manner that complies with this Section 4.09.
Section 4.10 ASSET SALES.
(i) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless:
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(A) the Company (or the Restricted Subsidiary, as the case may
be) receives consideration at the time of such Asset Sale at
least equal to the fair market value of the assets or Equity
Interests issued or otherwise disposed of;
(B) if the fair market value of such assets or Equity
Interests is in excess of $5.0 million, such value shall be
determined by the Company's Board of Directors and evidenced
by a resolution of the Board of Directors; and
(C) at least 75% of the consideration therefor received by the
Company or such Restricted Subsidiary is in the form of cash
or Cash Equivalents. For purposes of this clause (C), each of
the following shall be deemed to be cash:
(1) any liabilities (as shown on the Company's or
such Restricted Subsidiary's most recent balance
sheet), of the Company or any Restricted Subsidiary
that are assumed by the transferee of any such assets
or that otherwise cease to be liabilities of the
Company or Restricted Subsidiary pursuant to a
novation or other agreement that releases the Company
or such Restricted Subsidiary from further liability
or such agreement discharges or satisfies such
liability; and
(2) any securities, notes or other obligations
received by the Company or any Restricted Subsidiary
in connection with such disposition that are (subject
to ordinary settlement periods) converted by the
Company or such Restricted Subsidiary into cash or
Cash Equivalents (to the extent of the cash or Cash
Equivalents received in that conversion) within 180
days of the applicable Asset Sale.
Notwithstanding the foregoing, the 75% limitation referred to
in clause (C) shall not apply to any Asset Sale in which the cash or Cash
Equivalents portion of the consideration received therefrom, determined in
accordance with the foregoing provision, is equal to or greater than what the
after-tax proceeds would have been had such Asset Sale complied with the
aforementioned 75% limitation.
(ii) Within 365 days after the receipt of any Net Proceeds
from an Asset Sale, the Company may apply such Net Proceeds at its option:
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(A) to repay Senior Debt or Indebtedness of a Restricted
Subsidiary that is not a Guarantor and, if the Indebtedness
repaid is revolving credit Indebtedness, to correspondingly
reduce commitments with respect to that Indebtedness;
(B) to acquire all or substantially all of the assets of, or
the Voting Stock of, any Person or any division of any Person
that is engaged in any Permitted Business;
(C) to make capital expenditures; or
(D) to acquire other assets that are used or useful in a
Permitted Business;
provided that the requirements of clauses (B) through (D) above shall be deemed
to be satisfied if an agreement (including a lease, whether a capital lease or
an operating lease) committing to make the acquisitions or expenditures referred
to therein is entered into by the Company or its Restricted Subsidiary within
365 days after the receipt of such Net Proceeds and such Net Proceeds are
subsequently applied in accordance with such agreement.
Notwithstanding the previous provision, in the event that a
Restricted Subsidiary that is not a wholly owned Subsidiary effects an Asset
Sale, whether or not such Restricted Subsidiary dividends or distributes to all
of its stockholders (including the Company or another Restricted Subsidiary) on
a pro rata basis any proceeds of such Asset Sale to the Company or another
Restricted Subsidiary, the Company or such Restricted Subsidiary need only apply
its pro rata share of such proceeds in accordance with the preceding clauses (A)
through (D).
Pending the final application of any such Net Proceeds, the
Company and it Restricted Subsidiaries may temporarily reduce revolving credit
borrowings or otherwise invest such Net Proceeds in any manner that is not
prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the preceding paragraph will constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds exceeds $15.0 million,
the Company no later than 365 days after the receipt of the Net Proceeds giving
rise to such Excess Proceeds, shall make an Asset Sale Offer pursuant to Section
3.09 hereof to all Holders of Notes and all holders of other Indebtedness that
is pari passu with the Notes containing provisions similar to those set forth in
this Indenture with respect to offers to purchase or required redemptions with
the proceeds of sales of assets to purchase the maximum principal amount of
Notes and such other pari passu Indebtedness that may be purchased out of the
Excess Proceeds; provided, that the Company may, at its option, make such Asset
Sale
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Offer prior to such 365th day. The offer price in any Asset Sale Offer will be
equal to 100% of principal amount plus accrued and unpaid interest and
Liquidated Damages, if any, to the date of purchase, and will be payable in
cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer,
the Company may use such Excess Proceeds for any purpose not otherwise
prohibited by this Indenture. If the aggregate principal amount of Notes and
such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds
the amount of Excess Proceeds, the Trustee shall select the Notes and such other
pari passu Indebtedness to be purchased on a pro rata basis based on the
principal amount of Notes and such other pari passu Indebtedness tendered. Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds shall be
reset at zero.
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 each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the Asset Sales
provisions of this Indenture, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under the Asset Sale provisions of this Indenture by virtue of such
conflict.
Section 4.11 TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or Guarantee with, or for the
benefit of, any Affiliate (each, an "Affiliate Transaction"), unless:
(i) such Affiliate Transaction or series of Affiliate
Transactions is on terms that are, taken as a whole, no less favorable to the
Company or the relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person; or
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(ii) the Company delivers to the Trustee:
(A) should the aggregate consideration of any Affiliate
Transaction or series of related Affiliate Transactions exceed
$5.0 million, a resolution of the Board of Directors set forth
in an Officers' Certificate certifying that (1) such Affiliate
Transaction or series of related Affiliate Transactions
complies with this Section 4.11, and (2) such Affiliate
Transaction or series of related Affiliate Transactions has
been approved by a majority of the Disinterested Directors,
which shall have determined that such Affiliate Transaction or
series of related Affiliate Transactions is fair to the
Company or such Restricted Subsidiary, as the case may be,
from a financial point of view; and
(B) should the aggregate consideration of any Affiliate
Transaction or series of related Affiliate Transactions exceed
$10.0 million, an opinion as to the fairness to the Company of
such Affiliate Transaction from a financial point of view
issued by an accounting, appraisal or investment banking firm
of national standing.
The following items shall not be deemed to be Affiliate
Transactions and, therefore, will not be subject to the provisions of the prior
paragraph:
(1) reasonable fees and compensation paid to, and
indemnity and similar arrangements provided on behalf
of, officers, directors or employees of the Company
or any Restricted Subsidiary of the Company as
determined in good faith by the Company' Board of
Directors or senior management;
(2) transactions between or among the Company or its
Restricted Subsidiaries or both;
(3) the payment of management fees to any Affiliate
of the Company not to exceed in the aggregate to all
Affiliates, in any twelve-month period, the greater
of (a) $1.0 million and (b) an amount equal to 1% of
Consolidated Cash Flow and the reimbursement of
expenses incurred by Affiliates from time to time in
the course of providing management, investment
banking, commercial banking, or financial advisory
services to, or monitoring their investments in, the
Company;
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(4) a Restricted Payment or Permitted Investment that
is permitted by the provisions of Section 4.07 and
any transaction that is specifically excluded from
the definition of "Restricted Payment" set forth in
Section 4.07(i)(A), (i)(B) and (i)(C);
(5) loans and advances to officers, directors, and
employees of the Company or any of its Restricted
Subsidiaries for bona fide business purposes in the
ordinary course of business;
(6) transactions between the Company and any of its
Affiliates involving investment banking, commercial
banking, financial advisory and related activities;
(7) issuances of securities or payments or
distributions in connection with employment incentive
plans, employee stock plans, employees stock option
plans and similar plans and arrangements approved by
the Board of Directors of the Company;
(8) sales and issuances of Equity Interests of the
Company (other than Disqualified Stock);
(9) transactions between the Company or any
Restricted Subsidiary (including PCS, or any
successor thereto) and Rite Aid or its affiliates
with respect to services provided by Rite Aid to the
Company or any Restricted Subsidiary or by the
Company or any Restricted Subsidiary to Rite Aid, in
each case, in the ordinary course of business;
(10) transactions between the Company or any
Restricted Subsidiary and JLL or any Affiliate of JLL
entered into in the ordinary course of business and
in compliance with the provisions of clause (i) and
(ii)(A) of this Section 4.11;
(11) any agreements or arrangements in effect on, or
entered into on or prior to, the Issue Date, or any
amendment, modification, or supplement thereto or any
replacement thereof, so long as any such amendment,
modification, supplement or replacement agreement is
not materially more disadvantageous to the Holders of
the Notes than the original agreements as in effect
on the Issue Date, and any transactions contemplated
by any of the foregoing agreements or arrangements;
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(12) the existence of, or the performance by the
Company or any of its Restricted Subsidiaries of its
obligations under the terms of, any stockholders
agreement, partnership agreement or limited liability
company members agreement (including any registration
rights agreement or purchase agreement related
thereto) to which it is a party as of the Issue Date
and any similar agreements which it may enter into
thereafter, in each case subject to compliance with
the other provisions of this Indenture; provided,
however, that the existence, or the performance by
the Company or any of its Restricted Subsidiaries of
obligations under any future amendment to any such
existing agreement or under any similar agreement
entered into after the Issue Date shall only be
permitted by this clause (12) to the extent that the
terms (taken as a whole) of any such amendment or new
agreement are not otherwise materially more
disadvantageous to the Holders of the Notes than
those agreements that were in effect on the Issue
Date;
(13) the Transactions including all payments in
respect of fees, costs and expenses incurred in
connection with the Transactions; and
(14) transactions in connection with a Qualified
Receivables Transaction between a Receivables
Subsidiary and any Person in which the Receivables
Subsidiary has an Investment.
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Section 4.12 LIENS.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, assume or suffer or permit
to exist any Lien (other than Permitted Liens) on any of its property or assets
(including Capital Stock of any other Person), whether owned on the Issue Date
or thereafter acquired, securing any Indebtedness of the Company or any
Guarantor that by its terms is expressly subordinated in right of payment to or
ranks pari passu in right of payment with the Notes or such Subsidiary's
Guarantee (the "Initial Lien"), unless contemporaneously therewith effective
provision is made to secure the Indebtedness due under this Indenture and the
Notes or, in respect of Liens on any Restricted Subsidiary's property or assets,
any Guarantee of the Notes by such Restricted Subsidiary, equally and ratably
with such obligation for so long as such obligation is so secured by such
Initial Lien. Any such Lien thereby created in favor of the Notes or any such
Guarantee will be automatically and unconditionally released and discharged upon
(i) the release and discharge of the Initial Lien to which it relates, or (ii)
any sale, exchange or transfer to any Person not an Affiliate of the Company of
the property or assets secured by such Initial Lien, or of all of the Capital
Stock held by the Company or any Restricted Subsidiary in, or all or
substantially all the assets of, any Restricted Subsidiary creating such Lien.
Section 4.13 CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect (i)
its corporate existence, and the corporate, partnership or other existence of
each of its Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Company or any
such 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 of the Notes.
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Section 4.14 OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
If a Change of Control occurs, each Holder of Notes shall have
the right to require the Company to repurchase all or any part (equal to $1,000
or an integral multiple thereof) of that Holder's Notes pursuant to the offer
described below (the "Change of Control Offer") on the terms set forth in this
Section 4.14. In the Change of Control Offer, the Company shall offer payment in
cash equal to 101% of the aggregate principal amount of Notes repurchased plus
accrued and unpaid interest and Liquidated Damages, if any, thereon, to the date
of purchase (the "Change of Control Payment"). Within 30 days following any
Change of Control, the Company shall mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase Notes on the Change of Control Payment Date specified in such
notice (the "Change of Control Payment Date"), which date shall be no earlier
than 30 days and no later than 60 days from the date such notice is mailed,
pursuant to the procedures required by this Indenture and described in such
notice. 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 the Notes as a result of a Change of Control. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of this Section 4.14, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under the provisions of this Section 4.14 by virtue of such
conflict.
On the Change of Control Payment Date, the Company shall, to
the extent lawful:
(i) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer;
(ii) prior to 10:00am Eastern time, deposit with the Paying
Agent an amount equal to the Change of Control Payment in respect of all Notes
or portions thereof so tendered; and
(iii) deliver or cause to be delivered to the Trustee the
Notes so accepted together with an Officers' Certificate stating the aggregate
principal amount of Notes or portions thereof being purchased by the Company.
The Paying Agent shall promptly mail to each Holder of Notes
so tendered the Change of Control Payment for such Notes, and the Trustee will
promptly authenticate and mail (or instruct the Registrar to transfer by book
entry) to each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if
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any; provided that each such new Note shall be in a principal amount of $1,000
or an integral multiple thereof.
Prior to complying with any of the provisions of this Section
4.14, but in any event within 90 days following a Change of Control, the Company
shall either repay all outstanding Senior Debt or obtain the requisite consents,
if any, under all agreements governing outstanding Senior Debt to permit the
repurchase of Notes required by this Section 4.14. 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 first comply with the covenant in the first
sentence in the immediately preceding paragraph before it shall be required to
repurchase Notes pursuant to the provisions described above. The Company's
failure to comply with the covenant described in the immediately preceding
sentence may (with notice and lapse of time) constitute an Event of Default
described under clause (ii) under Section 6.01.
The provisions described above that require the Company to
make a Change of Control Offer following a Change of Control will be applicable
regardless of whether any other provisions of this Indenture are applicable.
Except as described above with respect to a Change of Control, this Indenture
does not contain provisions that permit the Holders of the Notes to require that
the Company repurchase or redeem the Notes in the event of a takeover,
recapitalization or similar transaction.
Notwithstanding anything to the contrary in this Section 4.14,
the Company shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Section 4.14 and Section 3.09 hereof and all other provisions of this
Indenture applicable to a Change of Control Offer made by the Company and
purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
Section 4.15 NO SENIOR SUBORDINATED DEBT.
The Company shall not incur, create, issue, assume, Guarantee
or otherwise become liable for any Indebtedness that is subordinate or junior in
right of payment to any Senior Debt of the Company and senior in right of
payment to the Notes. No Guarantor shall incur, create, issue, assume, guarantee
or otherwise become liable for any Indebtedness that is subordinate or junior in
right of payment to the Senior Debt of such Guarantor and senior in right of
payment to such Guarantor's Subsidiary Guarantee.
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Section 4.16 SUBSIDIARY GUARANTEES.
If the Company or any of its Restricted Subsidiaries acquires
or creates another Domestic Subsidiary or if any Restricted Subsidiary becomes a
Domestic Subsidiary of the Company after the Issue Date, or if any Restricted
Subsidiary becomes a guarantor under the Credit Agreement, then that newly
acquired or created Domestic Subsidiary or that Restricted Subsidiary must
become a Guarantor and execute a supplemental indenture and deliver an Opinion
of Counsel to the Trustee; provided that no Subsidiary shall be required to
become or remain a Guarantor, for so long as the Credit Agreement is in effect,
if it is not an obligor thereunder or if it is not required to Guarantee the
Credit Agreement. At such time as the Credit Agreement is no longer in effect,
the Notes will be Guaranteed on a senior subordinated basis by any Restricted
Subsidiary of the Company that becomes an Obligor under any Indebtedness or
Preferred Stock; provided that Subsidiaries that are (a) Obligors with respect
to less than $5 million of Indebtedness and Preferred Stock, individually, and
$30 million in the aggregate, and (b) Receivables Subsidiaries, will not be
required to Guarantee the Notes.
Any Subsidiary that is not required to be or remain a
Guarantor under this Section 4.16 shall be entitled to be released from its
obligations under this Indenture. Upon delivery by the Company to the Trustee of
an Officer's Certificate setting forth the basis for such release and that such
release is in compliance with the requirements of the Section, the Trustee shall
execute any documents reasonably required in order to evidence the release of
such Guarantor from its obligations under this Indenture, including without
limitation, its Subsidiary Guarantee.
Guarantors may also be released pursuant to the procedures set
forth in Section 11.05.
Section 4.17 BUSINESS ACTIVITIES.
The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any business other than Permitted Businesses, except to
such extent as would not be material to the Company and its Restricted
Subsidiaries taken as a whole. Any Receivables Subsidiary and any Subsidiary of
a Receivables Subsidiary may engage in a business related or ancillary to a
Qualified Receivables Transaction.
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Section 4.18 DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES.
The Board of Directors may designate any Restricted Subsidiary
to be an Unrestricted Subsidiary if at the time of and after giving effect to
such designation no Default or Event of Default shall have occurred or be
continuing. If a Restricted Subsidiary is designated as an Unrestricted
Subsidiary, the aggregate fair market value of all outstanding Investments of
the Company and its Restricted Subsidiaries in the Subsidiary so designated will
be deemed to be an Investment made as of the time of such designation and will
either (i) reduce the amount available for Restricted Payments under Section
4.07 hereof, (ii) reduce the amount available for future Investments under one
or more clauses of the definition of Permitted Investments, as the Company shall
determine, or (iii) a combination of the foregoing. That designation will only
be permitted if the Investment would be permitted at that time under Section
4.07 hereof and if such Restricted Subsidiary otherwise meets the definition of
an Unrestricted Subsidiary.
Subject to the last paragraph of the definition of
"Unrestricted Subsidiaries," the Board of Directors may redesignate any
Unrestricted Subsidiary to be a Restricted Subsidiary if at the time of and
after giving effect to such redesignation, no Default or Event of Default shall
have occurred or be continuing.
ARTICLE 5
SUCCESSORS
Section 5.01 MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company may not, directly or indirectly: (a) consolidate
or merge with or into another Person (whether or not the Company is the
surviving corporation); or (b) sell, assign, lease, transfer, convey or
otherwise dispose of all or substantially all of the properties or assets of the
Company and its Restricted Subsidiaries taken as a whole, in one or more related
transactions, to another Person; unless:
(i) either: (A) the Company is the surviving corporation; or
(B) the Person formed by or surviving any such consolidation or merger (if other
than the Company) or to which such sale, assignment, lease, transfer, 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 Person formed by or surviving any such consolidation
or merger (if other than the Company) or the Person to which such sale,
assignment, lease, transfer, conveyance or other disposition shall have been
made assumes all the obligations of the Company under the Notes, this Indenture
and the Registration Rights
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Agreement pursuant to a supplemental indenture and any other required agreements
reasonably satisfactory to the Trustee;
(iii) immediately after such transaction no Default or Event
of Default has occurred and is continuing; and
(iv) either (A) the Company or the Person formed by or
surviving any such consolidation or merger (if other than the Company), or to
which such sale, assignment, lease, transfer, conveyance or other disposition
shall have been made, will, on the date of such transaction after giving pro
forma effect thereto and any related financing transactions as if the same had
occurred at the beginning of the applicable four-quarter period, be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof, or
(B) the Fixed Charge Coverage Ratio of such surviving Person is not less than
the Fixed Charge Coverage Ratio immediately prior to such transaction.
This Section 5.01 shall not apply to (w) any of the
Transactions, (x) a merger, consolidation, sale, assignment, lease, transfer,
conveyance or other disposition of assets between or among the Company and any
Restricted Subsidiary or (y) transfers of accounts receivable and related assets
of the type specified in the definition of "Qualified Receivables Transaction"
(or a fractional undivided interest therein) by a Receivables Subsidiary in a
Qualified Receivables Transaction.
Notwithstanding the foregoing clause (iv), the Company may
merge with an Affiliate incorporated or organized either (A) for the purpose of
reincorporating or reorganizing the Company in another jurisdiction or (B) to
realize tax benefits without complying with the foregoing clause (iv) provided,
that, at the time of and after giving effect to such transaction, no Default or
Event of Default shall have occurred or be continuing or would result from such
merger.
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Section 5.02 SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, 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, lease, conveyance or other
disposition, the provisions of this Indenture referring to the "Company" shall
refer instead to the successor corporation and not to the Company), and may
exercise every right and power of the Company under this Indenture with the same
effect as if such successor Person had been named as the Company herein;
provided, however, that the predecessor Company shall not be relieved from the
obligation to pay the principal of and interest on the Notes except in the case
of a sale, assignment, transfer, conveyance or other disposition of all of the
Company's assets that meets the requirements of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 EVENTS OF DEFAULT.
Each of the following is an Event of Default:
(i) default for 30 days in the payment when due of interest
on, or Liquidated Damages with respect to, the Notes (whether or not such
payment is then prohibited by Article 10 hereof);
(ii) default in payment when due of the principal of, or
premium, if any, on the Notes (whether or not such payment is then prohibited by
Article 10 hereof);
(iii) failure by the Company or any of its Restricted
Subsidiaries to comply with Sections 4.10 and 5.01 hereof;
(iv) failure by the Company or any of its Subsidiaries to
comply with any of the other covenants in this Indenture for a period of 60
consecutive days after written notice by the Trustee or by the Holders of at
least 25% in principal amount of the Notes then outstanding;
(v) default under any mortgage, indenture or instrument under
which there is issued and outstanding any Indebtedness for money borrowed by the
Company or any of its Restricted Subsidiaries (or Indebtedness of an
Unrestricted Subsidiary that is
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Guaranteed by the Company or any of its Restricted Subsidiaries) whether such
Indebtedness or Guarantee now exists, or is created after the Issue Date, if
that default:
(A) is caused by a failure to pay principal at the final
stated maturity of such Indebtedness (a "Payment Default"); or
(B) results in the acceleration of such Indebtedness prior to
its stated maturity,
but only if the principal amount of any such Indebtedness, together with the
principal amount of any other Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $10.0
million or more;
(vi) failure by the Company or any of its Subsidiaries to pay
final judgments aggregating in excess of $10.0 million, or any judgments
aggregating in excess of $20.0 million for the last event listed on Schedule
4.01(f), as in effect on the Issue Date, of the Credit Agreement, (net of any
amounts covered by insurance or indemnity arrangements provided by a reputable
and creditworthy insurance company or other Person), which judgments are not
paid, discharged or stayed for a period of 60 consecutive days after the
judgments become final and non-appealable;
(vii) the Company or any of its Significant Subsidiaries which
is a Restricted Subsidiary ("Material Subsidiary") or any Restricted
Subsidiaries that, if taken together would constitute a Material Subsidiary:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a custodian of it or for
all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) generally is not paying its debts as they become due; or
In each such case, within the meaning of any Bankruptcy Law.
(viii) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
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(A) is for relief against the Company or any of its Material
Subsidiaries or Restricted Subsidiaries that, taken as a
whole, would constitute a Material Subsidiary in an
involuntary case;
(B) appoints a custodian of the Company or any of its Material
Subsidiaries or any Restricted Subsidiaries that, taken as a
whole, would constitute a Material Subsidiary or for all or
substantially all of the property of the Company or any of its
Material Subsidiaries or any Restricted Subsidiaries that,
taken as a whole, would constitute a Material Subsidiary; or
(C) orders the liquidation of the Company or any of its
Material Subsidiaries or any Restricted Subsidiaries that,
taken as a whole, would constitute a Material Subsidiary; and
the order or decree remains unstayed and in effect for 60
consecutive days; and
(ix) Any Subsidiary Guarantee by a Guarantor that is a
Material Subsidiary or Restricted Subsidiaries that if taken together would
constitute a Material Subsidiary, (x) shall be held in any judicial proceeding
to be unenforceable or invalid, or (y) shall cease for any other reason, other
than in accordance with its terms, to be in full force and effect, and for
purposes of this clause (y) only, and such failure shall continue for a period
of three days after written notice by the Trustee or Holders of at least 25% in
principal amount of the Notes then outstanding to such Guarantor, or (z) any
Guarantor that is a Significant Subsidiary, or any Person acting on behalf of
any Guarantor that is a Significant Subsidiary, shall deny or disaffirm its
obligations under its Subsidiary Guaranty.
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Section 6.02 ACCELERATION.
In the case of an Event of Default arising from an Event of
Default specified in clauses (vii) and (viii) of Section 6.01 hereof with
respect to the Company, all outstanding Notes will become due and payable
including in each case accrued and unpaid interest thereon immediately without
further action or notice. If any other Event of Default occurs and is
continuing, the Trustee (upon request of Holders of at least 25% in principal
amount of the Notes then outstanding) or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all the Notes to be
due and payable, including in each case accrued and unpaid interest thereon , by
notice in writing to the Company and the Trustee specifying the respective Event
of Default and that such notice is a "notice of acceleration" (the "Acceleration
Notice"), and the same (i) will become immediately due and payable, or (ii) if
there are any amounts outstanding under the Credit Agreement, will become
immediately due and payable upon the first to occur of an acceleration under the
Credit Agreement or five Business Days after receipt by the Company and the
Representative under the Credit Agreement of such Acceleration Notice, but only
if such Event of Default is then continuing. The Holders of a majority in
aggregate principal amount of the then outstanding Notes by written notice to
the Trustee may on behalf of all of the Holders rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of principal, interest
or premium that has become due solely because of the acceleration or other
provisions as required by the TIA) have been cured or waived.
Section 6.03 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal, premium, if
any, and interest and Liquidated Damages, if any, on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note 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.
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Section 6.04 WAIVER OF PAST DEFAULTS.
Subject to Section 9.02, Holders of not less than a majority
in aggregate principal amount of the then outstanding Notes by notice to the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default or Event of Default and its consequences hereunder, except a continuing
Default or Event of Default in the payment of the principal of, premium and
Liquidated Damages, if any, or interest on, the Notes (including in connection
with an offer to purchase) (provided, however, that the Holders of a majority in
aggregate principal amount of the then outstanding Notes may rescind an
acceleration and its consequences, including any related payment default that
resulted from such acceleration). 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.
In the event of a waiver, the Company shall deliver to the
Trustee an Officers' Certificate stating that the requisite percentage of
Holders have consented to such waiver and attaching copies of such consents.
Section 6.05 CONTROL BY MAJORITY.
Holders of a majority in aggregate principal amount of the
then outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising 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 (i) conflicts with any rule of law or this Indenture, or (ii) the
Trustee determines may be unduly prejudicial to the rights of other Holders of
Notes or (iii) that may involve the Trustee in personal liability. Subject to
Article 7, the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such action.
Section 6.06 LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes or any other remedy 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 aggregate principal amount
of the then outstanding Notes make a written request to the Trustee to pursue
the remedy;
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(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 Notes do not give the Trustee a
direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
Section 6.07 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal, premium and
Liquidated Damages, if any, and interest on the Note, on or after the respective
due dates expressed in the Note (including in connection with an offer to
purchase), or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
Section 6.08 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(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 for the
whole amount of principal of, premium and Liquidated Damages, if any, and
interest remaining unpaid on the Notes and to the extent lawful, interest on
overdue principal and to the extent lawful, interest on overdue installments of
interest and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
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Section 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders of the Notes allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Notes), its creditors or its property and
shall be entitled and empowered to collect, receive and distribute any money or
other property payable or deliverable on any such claims after deduction of the
reasonable compensation, expenses, disbursements and advances to the Trustee, as
agent and counsel, and any other amounts due the Trustee under Section 7.07
hereof to the extent any such charges and expenses are not paid out of the
estate in any such proceeding and any custodian in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the Trustee, and in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation, expense
and liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium and Liquidated Damages, if any, and interest,
ratably, without
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preference or priority of any kind, according to the amounts due and payable on
the Notes for principal, premium and Liquidated Damages, 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 of Notes pursuant to this Section 6.10.
Section 6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees 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 6.11 does not apply to a suit by the Trustee, a
suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders
of more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01 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 its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(ii) Except during the continuance of an Event of Default:
(A) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in
this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and
(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
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case of any certificates or opinions required to be provided
to the Trustee by any provision hereof the Trustee shall
examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture but
need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein.
(A) 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 this paragraph does not
limit the effect of clause (ii) of this Section 7.01;
(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
(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 6.05 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
clauses (i), (ii) and (iii) of this Section 7.01.
(v) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have offered
to the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
(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.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.02 RIGHTS OF TRUSTEE.
(iii) 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.
(iv) 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
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or Opinion of Counsel. The Trustee may consult with counsel of its selection 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.
(v) 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.
(vi) The Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(vii) 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.
(viii) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request,
order, or direction of any of the Holders unless such Holders shall have offered
to the Trustee security or indemnity satisfactory to the Trustee against the
costs, expenses and liabilities that might be incurred by it in compliance with
such request or direction.
(ix) The Trustee shall have no duty to inquire as to the
performance of any of the Company's covenants in Article 4 hereof. The Trustee
shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office of the Trustee, and such notice references
the Notes and this Indenture.
(x) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
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Section 7.03 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the Company or upon the Company's direction under any
provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
Section 7.05 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and
if it is actually known to the Trustee, the Trustee shall mail to Holders of
Notes a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default or Event of Default in payment of
principal of, premium, if any, or interest on any Note, the Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the Holders
of the Notes.
Section 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each September 15 beginning with the
September 15 following the date of this Indenture, and for so long as Notes
remain outstanding, the Trustee shall mail to the Holders of the Notes a brief
report dated as of such reporting date that complies with TIA Section 313(a)
(but if no event described in TIA Section 313(a) has occurred within the twelve
months preceding the reporting date, no report need be transmitted). The Trustee
also shall comply with TIA Section 313(b)(2). The Trustee shall also transmit by
mail all reports as required by TIA Section 313(c).
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A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with the SEC and each
stock exchange on which the Notes are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Notes are listed
on any stock exchange and of any delisting thereof.
Section 7.07 COMPENSATION AND INDEMNITY.
The Company and each Guarantor, jointly and severally,
covenant and agree to pay to the Trustee from time to time such reasonable
compensation as shall be agreed in writing by the Company and the Trustee for
its acceptance of this Indenture and services hereunder. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company and each Guarantor, jointly and severally covenant
and agree to 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, accountants,
experts and counsel, including the expenses of counsel in connection with the
Trustee's acceptance of this Indenture.
The Company and each Guarantor, jointly and severally,
covenant and agree to indemnify each of the Trustee or any predecessor Trustee
and each of their respective officers, directors, employees, attorneys in fact
and agents for, and to hold them harmless against, any and all loss, damage,
claims, liability or expense, including taxes (other than taxes based upon,
measured by or determined by the income, receipts or capital of the Trustee),
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending itself
against any claim (whether asserted by the Company, or any Guarantor, or any
Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent that
such loss, claim, liability or expense is due to negligence or bad faith. 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 or any Guarantor of its obligations hereunder. The Company and each
Guarantor, jointly and severally, covenant and agree to defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel
and the Company and each Guarantor, jointly and severally, covenant and agree to
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 and each Guarantor, jointly and
severally, under this Section 7.07 shall survive the satisfaction and discharge
of this Indenture.
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To secure the Company's and each Guarantor's payment
obligations in this Section, the Trustee shall have a Lien prior to the Notes on
all money or property held or collected by the Trustee, except that held in
trust to pay principal and interest on particular Notes. Such Lien shall survive
the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(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 7.08 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 Notes may
remove the Trustee by so notifying the Trustee and the Company in writing. The
Company may remove the Trustee if:
(iii) the Trustee fails to comply with Section 7.10 hereof;
(iv) 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;
(v) a custodian or public officer takes charge of the Trustee
or its property; or
(vi) 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 Notes 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 Notes may, at the expense of the
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Company, petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder who has
been a Holder for at least six months, fails to comply with Section 7.10 hereof,
such Holder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, provided all sums owing to the
Trustee hereunder have been paid and subject to the Lien provided for in Section
7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
Section 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10 ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus
(together with its holding company and sister companies, if any) of at least $50
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).
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Section 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.02 or 8.03 hereof applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article 8.
Section 8.02 LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from its Obligations with respect to all outstanding Notes
on the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company and the
Guarantors shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes, which shall thereafter be deemed to be
"outstanding" only for the purposes of Section 8.05 hereof and the other
Sections of this Indenture referred to in (i) and (ii) below, and to have
satisfied all of their obligations under such Notes and this Indenture (and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following provisions which
shall survive until otherwise terminated or discharged hereunder:
(iii) the rights of Holders of outstanding Notes to receive
solely from the trust fund described in Section 8.04 hereof, and as more fully
set forth in such Section 8.04, payments in respect of the principal of and
premium, interest and Liquidated Damages, if any, on such Notes when such
payments are due;
(iv) the Company's obligations with respect to such Notes
under Article 2 and Section 4.02 hereof;
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(v) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations in connection therewith; and
(vi) this Article 8.
Subject to compliance with this Article 8, the Company may
exercise its option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 hereof.
Section 8.03 COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Company and each Guarantor shall,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be released from their respective obligations under the covenants contained in
Sections 4.03, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17 and
4.18 hereof with respect to the outstanding Notes on and after the date the
conditions set forth in Section 8.04 are satisfied (hereinafter, "Covenant
Defeasance"), and the Notes shall thereafter be deemed not "outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.01 hereof, but,
except as specified above and below, the remainder of this Indenture and such
Notes shall be unaffected thereby. In addition, upon the Company's exercise
under Section 8.01 hereof of the option applicable to this Section 8.03, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(iii) through 6.01(vii) hereof shall not constitute Events of Default.
Section 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of
either Section 8.02 or 8.03 hereof to the outstanding Notes:
(iii) the Company must irrevocably deposit or cause to be
deposited, with the Trustee, in trust, for the benefit of the Holders, cash in
U.S. dollars, non-callable Government Securities, or a combination thereof, in
amounts as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the
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principal of, interest and premium and Liquidated Damages, if any, on the
outstanding Notes on the stated maturity thereof or on the applicable redemption
date, as the case may be, and the Company must specify whether the Notes are
being defeased to maturity or to a particular redemption date;
(iv) in the case of Legal Defeasance, the Company must deliver
to the Trustee an Opinion of Counsel in the United States reasonably acceptable
to the Trustee confirming that (A) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling, or (B) since the date
of this Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based on that change the Opinion of
Counsel shall confirm that, the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax purposes as a result of
the 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;
(v) in the case of Covenant Defeasance, the Company must
deliver to the Trustee an Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that the Holders of the outstanding Notes
will not recognize income, gain or loss for federal income tax purposes as a
result of such Covenant Defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;
(vi) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than (A) Defaults or Events of
Default resulting from the borrowing of funds to be applied to the deposit)
related to or arising out of incurrences of Indebtedness (and Liens and
customary documentation thereto) the proceeds of which are used to satisfy the
requirement in paragraph (i) above and (B) Defaults or Events of Default arising
under Section 6.01(v) related to Defaults and Events of Default described in
clause (A) of this parenthetical); from bankruptcy or insolvency events are
concerned, at any time in the period ending on the 91st day after the date of
deposit;
(vii) any Legal Defeasance or Covenant Defeasance will 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;
(viii) the Company must deliver to the Trustee an Opinion of
Counsel to the effect that, assuming no intervening bankruptcy of the Company or
any Guarantor between the date of deposit and the 91st day following the deposit
and assuming that no Holder is an "insider" of the Company under applicable
bankruptcy law, after the 91st
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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 and remedies generally;
(ix) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders of the Notes over other creditors of the Company, or
with the intent of defeating, hindering, delaying or defrauding creditors of the
Company or others; and
(x) the Company must deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, stating that all conditions precedent
provided for or relating to the Legal Defeasance or the Covenant Defeasance have
been complied with.
Section 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 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
8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium interest and
Liquidated Damages, if any, but such money need not be segregated from other
funds except to the extent required by law.
The Company and each Guarantor, jointly and severally,
covenant and agree to pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or non-callable Government Securities held by
it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.04(ii) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
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Section 8.06 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,
interest or Liquidated Damages, if any, on any Note and remaining unclaimed for
two years after such principal, premium, or interest or Liquidated Damages 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 Note shall thereafter look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in the New York Times (national edition) and
The Wall Street Journal (national edition), notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such notification or publication, any unclaimed balance
of such money then remaining will be repaid to the Company.
Section 8.07 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance with Section
8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's and each Guarantor's
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of, premium,
interest or Liquidated Damages on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 hereof, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture, the Notes or
the Subsidiary Guarantees without the consent of any Holder of a Note:
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(iii) to cure any ambiguity, defect, error or inconsistency;
(iv) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(v) to provide for the assumption of the Company's or any
Guarantor's obligations to the Holders of the Notes by a successor to the
Company or a Guarantor pursuant to Article 5 or Article 11 hereof;
(vi) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not adversely affect
the legal rights hereunder of any Holder of the Note;
(vii) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA; or
(viii) to allow any Guarantor to execute a supplemental
indenture and/or a Subsidiary Guarantee with respect to the Notes.
Upon the request of the Company and upon request by the
Trustee, upon receipt by the Trustee of the documents described in Section 7.02
hereof, the Trustee shall join with the Company and the Guarantors in the
execution of any amended or supplemental indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
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Section 9.02 WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, the Company,
the Guarantors and the Trustee may amend or supplement this Indenture, the Notes
or the Subsidiary Guarantees with the consent of the Holders of at least a
majority in principal amount of Notes then outstanding voting as a single class
(including consents obtained in connection with a tender offer or exchange offer
for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07 hereof,
any existing Default or Event of Default (other than a Default or Event of
Default in the payment of the principal of, premium, if any, or interest on the
Notes, except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture, the Notes or the
Subsidiary Guarantees may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes voting as a single
class (including consents obtained in connection with a tender offer or exchange
offer for, or purchase of, the Notes). Sections 2.08 and 2.09 hereof shall
determine which Notes are considered to be "outstanding" for purposes of this
Section 9.02.
Upon the request of the Company accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid,
and upon receipt by the Trustee of the documents described in Section 7.02
hereof, the Trustee shall join with the Company in the execution of such amended
or supplemental indenture unless such amended or supplemental indenture directly
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of
Notes under this Section 9.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding voting as a single class may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Notes.
However, without the consent of each Holder affected, an amendment or waiver
under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
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(iii) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(iv) reduce the principal of or change the fixed maturity of
any Note or alter or waive any of the provisions with respect to the redemption
of the Notes (other than provisions relating to Sections 3.09, 4.10 or 4.14
hereof);
(v) reduce the rate of or change the time for payment of
interest, including default interest, on any Note;
(vi) waive a Default or Event of Default in the payment of
principal of or premium or Liquidated Damages, if any, or interest on the Notes
(except a rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes and a
waiver of the payment default that resulted from such acceleration);
(vii) make any Note payable in money other than that stated in
the Notes;
(viii) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of Notes to
receive payments of principal of or premium, interest or Liquidated Damages, if
any, on the Notes;
(ix) waive a redemption payment with respect to any Note
(other than a payment required by Section 3.09, 4.10 or 4.14 hereof);
(x) make any change in the foregoing amendment and waiver
provisions; or
(xi) release any Guarantor from any of its obligations under
its Subsidiary Guarantee or this Indenture, except in accordance with the terms
of this Indenture.
Section 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in a amended or supplemental indenture that complies with the
TIA as then in effect.
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Section 9.04 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05 NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall, upon receipt
of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
In executing any amended or supplemental indenture, the Trustee shall be
entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon an Officers' Certificate and an Opinion of Counsel
together stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture and that such amendment is the legal,
valid and binding obligation of the Company and any Guarantors, enforceable
against them in accordance with their terms, subject to customary exceptions,
and complies with the provisions hereof (including Section 9.03).
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ARTICLE 10
SUBORDINATION
Section 10.01 AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder by accepting a Note
agrees, that the principal of and premium, interest and Liquidated Damages, if
any, and any other Obligations on, under, or relating to the Notes are
subordinated in right of payment, to the extent and in the manner provided in
this Article 10, to the prior payment in full in cash or Cash Equivalents (other
than Cash Equivalents of the type referred to in clauses (iii) and (iv) of the
definition thereof) of all Senior Debt of the Company (whether outstanding on
the Issue Date or hereafter created, incurred, assumed or guaranteed), and that
the subordination is for the benefit of the holders of Senior Debt. The Notes
will rank pari passu in right of payment with other senior subordinated
Indebtedness of the Company, and will be senior in right of payment to all
Subordinated Indebtedness of the Company.
Section 10.02 [Intentionally left blank]
Section 10.03 LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any distribution to creditors of the Company in a
liquidation or dissolution of the Company, in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property, in an assignment for the benefit of creditors or in any marshalling of
the Company's assets and liabilities:
(iii) holders of Senior Debt shall be entitled to receive
payment in full in cash or Cash Equivalents (other than Cash Equivalents of the
type referred to in clauses (iii) and (iv) of the definition thereof) of all
Obligations due in respect of such Senior Debt) before Holders of the Notes
shall be entitled to receive any payment or distribution of any kind or
character with respect to any Obligations on, or relating to, the Notes (except
that Holders may receive and retain (A) Permitted Junior Securities and (B)
payments and other distributions made from any defeasance trust created pursuant
to Article 8 hereof, so long as the trust was created in accordance with all
relevant conditions specified in Article 8 hereof); and
(iv) until all Obligations with respect to Senior Debt (as
provided in subsection (i) above) are paid in full, any distribution to which
Holders would be entitled but for this Article 10 shall be made to holders of
Senior Debt (except that Holders of Notes may receive (A) Permitted Junior
Securities and (B) payments and other distributions made from any defeasance
trust created pursuant to Article 8 hereof), as their interests may appear.
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Section 10.04 DEFAULT ON DESIGNATED SENIOR DEBT.
(iii) The Company may not make any payment or distribution of
any kind or character to the Trustee or any Holder with respect to any
Obligations on, or with respect to, the Notes and may not acquire from the
Trustee or any Holder any Notes for cash or property (other than (x) Permitted
Junior Securities and (y) payments and other distributions made from any
defeasance trust created pursuant to Article 8 hereof, so long as the trust was
created in accordance with all relevant conditions specified in Article 8
hereof) until all principal and other Obligations with respect to the Senior
Debt have been paid in full in cash or Cash Equivalents (other than Cash
Equivalents of the type referred to in clauses (iii) and (iv) of the definition
thereof) if:
(B) a default in the payment when due, whether at maturity,
upon redemption, declaration or otherwise, of any principal
of, interest on, unpaid drawings for letters of credit issued
in respect of, or any other Obligations with respect to any
Designated Senior Debt of the Company occurs and is
continuing; or
(C) a default, other than a default referred to in clause
(i)(A) of this Section 10.04, on Designated Senior Debt of the
Company occurs and is continuing that then permits holders of
such Designated Senior Debt to accelerate its maturity and the
Trustee receives a written notice of such default (a "Payment
Blockage Notice") from the holders or a Representative of such
Designated Senior Debt. If the Trustee receives any such
Payment Blockage Notice, no subsequent Payment Blockage Notice
shall be effective for purposes of this Section 10.04 unless
and until at least 360 days shall have elapsed since the
effectiveness of the immediately prior Payment Blockage
Notice. No nonpayment default that existed or was continuing
on the date of delivery of any Payment Blockage Notice to the
Trustee shall be, or be made, the basis for a subsequent
Payment Blockage Notice unless such default shall have been
cured or waived for a period of not less than 90 consecutive
days.
(iv) The Company may and shall resume payments on and
distributions with respect to any Obligations on, or with respect to, the Notes
and may acquire them upon the earlier of:
(B) in the case of a default referred to in clause (i)(A) of
this Section 10.04, (Payment Default), the date upon which
such default is cured or waived, or
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(C) in the case of a default referred to in clause (i)(B) of
this Section 10.04 (Nonpayment Default), the earliest of (A)
the date on which all nonpayment defaults are cured or waived
or cease to exist, (B) 179 days after the date of delivery of
the applicable Payment Blockage Notice, and (C) the date on
which the Trustee receives notice from the Representative for
the Designated Senior Debt rescinding the Payment Blockage
Notice, unless the maturity of any Designated Senior Debt has
been accelerated.
Section 10.05 ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt of the
acceleration. If any Senior Debt is outstanding under the Credit Agreement, no
payment or distribution (including through a purchase, repurchase or redemption)
by or on behalf of the Company of its Obligations hereunder or under the Notes
may be made until five Business Days after the Company or the Representatives
receives notice of such acceleration and, thereafter, may be made only if not
otherwise prohibited by this Article 10.
Section 10.06 WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder receives any
payment or distribution of any kind or character, whether in cash, properties or
securities, in respect of any Obligations with respect to the Notes (other than
(x) Permitted Junior Securities and (y) payments and other distributions made
from any defeasance trust created pursuant to Article 8 hereof) at a time when
such payment is prohibited by Section 10.03 or 10.04 hereof, such payment shall
be held by the Trustee or such Holder, as the case may be, in trust for the
benefit of, and shall be paid forthwith over and delivered, upon written request
(on a pro rata basis based on the aggregate principal amount of the Senior
Debt), to the holders of Senior Debt or their Representative under the indenture
or other agreement (if any) pursuant to which such Senior Debt may have been
issued for application to the payment of all Obligations with respect to Senior
Debt remaining unpaid to the extent necessary to pay such Obligations in full in
accordance with their terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt.
If any Holder or the Trustee is required by any court or
otherwise to deliver payments it received from the Company or a Guarantor to a
holder of Senior Debt, any amount so paid to the extent theretofore discharged,
shall be reinstated in full force and effect.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this
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Article 10, and no implied covenants or obligations with respect to the holders
of Senior Debt shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Debt, and shall not be liable to any such holders if the Trustee shall pay over
or distribute to or on behalf of Holders or the Company or any other Person
money or assets to which any holders of Senior Debt shall be entitled by virtue
of this Article 10, except if such payment is made as a result of the willful
misconduct or negligence of the Trustee.
Section 10.07 NOTICE BY COMPANY.
The Company shall promptly notify the Trustee and the Paying
Agent in writing of any facts known to the Company that would cause a payment of
any Obligations with respect to the Notes to violate this Article 10, but
failure to give such notice shall not affect the subordination of the Notes to
the Senior Debt as provided in this Article 10.
Section 10.08 SUBROGATION.
(a) After all Senior Debt is paid in full and until the Notes
are paid in full, Holders of Notes shall be subrogated (equally and ratably with
all other Indebtedness pari passu with the Notes) to the rights of holders of
Senior Debt to receive distributions applicable to Senior Debt to the extent
that distributions otherwise payable to the Holders of Notes have been applied
to the payment of Senior Debt. A distribution made under this Article 10 to
holders of Senior Debt that otherwise would have been made to Holders of Notes
is not, as between the Company and Holders, a payment by the Company on the
Notes.
(b) If at any time any payment of any Senior Debt is rescinded
or must otherwise be returned by any holder of Senior Debt upon the insolvency,
bankruptcy or reorganization of the Company or otherwise, then for purposes of
this Section 10.08, such payment shall be treated as not having been made.
Section 10.09 RELATIVE RIGHTS.
This Article 10 defines the relative rights of Holders of
Notes and holders of Senior Debt. Nothing in this Indenture shall:
(iii) impair, as between the Company and Holders of Notes, the
obligation of the Company, which is absolute and unconditional, to pay principal
of and interest and Liquidated Damages, if any, on the Notes in accordance with
their terms;
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(iv) affect the relative rights of Holders of Notes and
creditors of the Company other than their rights in relation to holders of
Senior Debt; or
(v) prevent the Trustee or any Holder of Notes from exercising
its available remedies upon a Default or Event of Default, subject to the rights
of holders and owners of Senior Debt to receive distributions and payments
otherwise payable to Holders of Notes.
If the Company fails because of this Article 10 to pay
principal of or interest on a Note on the due date, the failure shall
nevertheless be a Default or Event of Default.
Section 10.10 SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY.
No right of any holder of Senior Debt to enforce the
subordination of the Indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by the Company or any Holder or by the failure of the
Company or any Holder to comply with this Indenture.
Section 10.11 DISTRIBUTION OR NOTICE TO REPRESENTATIVE.
Whenever a distribution is to be made or a notice given to
holders of Senior Debt, the distribution may be made and the notice given to
their Representative.
Upon any payment or distribution of assets of the Company
referred to in this Article 10, the Trustee and the Holders of Notes shall be
entitled to conclusively rely upon any order or decree made by any court of
competent jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders of Notes for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of the Senior Debt and
other Indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 10.
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Section 10.12 RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least five Business Days prior to the date of such
payment written notice of facts that would cause the payment of any Obligations
with respect to the Notes to violate this Article 10. Only the Company or a
Representative may give the notice. Nothing in this Article 10 shall impair the
claims of, or payments to, the Trustee under or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights.
Section 10.13 AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder of Notes, by the Holder's acceptance thereof,
authorizes and directs the Trustee on such Holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination as provided
in this Article 10, and appoints the Trustee to act as such Holder's
attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 6.09 hereof at least 30 days before the expiration of the
time to file such claim, the Representatives are hereby authorized to file an
appropriate claim for and on behalf of the Holders of the Notes.
Section 10.14 AMENDMENTS.
Without the consent of at least 75% in principal amount of the
Notes then outstanding (including consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes), no waiver or amendment
to this Indenture may make any change in the provisions of this Article 10 that
adversely affects the rights of any Holder of Notes.
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ARTICLE 11
SUBSIDIARY GUARANTEES
Section 11.01 SUBSIDIARY GUARANTEE.
Subject to this Article 11, each of the Guarantors hereby,
jointly and severally, unconditionally Guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of this Indenture,
the Notes or the Obligations of the Company hereunder or thereunder, that:
(iii) the principal of and interest on the Notes will be
promptly paid in full when due, whether at maturity, by acceleration, redemption
or otherwise, and interest on the overdue principal of and interest on the
Notes, if any, if lawful, and all other Obligations of the Company to the
Holders or the Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and
(iv) in case of any extension of time of payment or renewal of
any Notes or any of such other 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 or otherwise.
Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors shall be jointly
and severally obligated to pay the same immediately. Each Guarantor agrees that
this is a Guarantee of payment and not a guarantee of collection. The Guarantors
hereby agree that their Obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and covenants
that, except as provided in this Indenture, this Subsidiary Guarantee shall not
be discharged except by complete performance of the Obligations contained in the
Notes and this Indenture.
If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid by
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either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor agrees that it shall not be entitled to any
right of subrogation in respect of any payments made hereunder until payment in
full of all Obligations Guaranteed hereby. Each Guarantor further agrees that,
as between the Guarantors, on the one hand, and the Holders and the Trustee, on
the other hand, (i) the maturity of the Obligations Guaranteed hereby may be
accelerated as provided in Article 6 hereof for the purposes of this Subsidiary
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (ii) in
the event of any declaration of acceleration of such obligations as provided in
Article 6 hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of this
Subsidiary Guarantee. The Guarantors shall have the right to seek contribution
from any non-paying Guarantor so long as the exercise of such right does not
impair the rights of the Holders under this Subsidiary Guarantee.
Section 11.02 SUBORDINATION OF SUBSIDIARY GUARANTEE.
The Obligations of each Guarantor under its Subsidiary
Guarantee pursuant to this Article 11 shall be junior and subordinated to the
Senior Debt of such Guarantor on the same basis as the Notes are junior and
subordinated to Senior Debt of the Company. For the purposes of the foregoing
sentence, the Trustee and the Holders shall have the right to receive and/or
retain payments by any of the Guarantors only at such times as they may receive
and/or retain payments in respect of the Notes pursuant to this Indenture,
including Article 10 hereof.
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Section 11.03 LIMITATION ON GUARANTOR LIABILITY.
Each Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Subsidiary
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Subsidiary Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that the obligations of such Guarantor under its Subsidiary Guarantee set forth
in this Article 11 shall be limited to the maximum amount as will, after giving
effect to such maximum amount and all other contingent and fixed liabilities of
such Guarantor that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this Article 11, result in the obligations of such Guarantor
under its Subsidiary Guarantee not constituting a fraudulent transfer or
conveyance.
Section 11.04 NOTATION OF SUBSIDIARY GUARANTEE.
To provide notice of its Subsidiary Guarantee, each Guarantor
hereby agrees that a notation of such Subsidiary Guarantee substantially in the
form included in Exhibit E may be endorsed by an Officer of such Guarantor on
each Note authenticated and delivered by the Trustee and that this Indenture or
an appropriate supplemental indenture shall be executed on behalf of such
Guarantor by an Officer thereof.
Each Guarantor hereby agrees that its Subsidiary Guarantee
shall remain in full force and effect notwithstanding any failure to endorse on
each Note a notation of such Subsidiary Guarantee.
If an Officer whose signature is on this Indenture or an
appropriate supplemental indenture no longer holds that office at the time the
Trustee authenticates the Note on which a notation of Subsidiary Guarantee is
endorsed, the Subsidiary Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subsidiary Guarantee set forth in this Indenture on behalf of the Guarantors.
In the event that the Company creates or acquires any other
Domestic Subsidiaries subsequent to the Issue Date, or if any current or future
Subsidiaries become Domestic Subsidiaries subsequent to the Issue Date, if
required by Section 4.16 hereof,
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the Company shall cause such Subsidiaries to execute supplemental indentures to
this Indenture in accordance with Section 4.16 hereof, and this Article 11, to
the extent applicable.
Section 11.05 RELEASES FOLLOWING SALE.
Subject to the provisions of Section 4.16 herein, in the event
of a sale or other disposition of all or substantially all of the assets of any
Guarantor, by way of merger, consolidation or otherwise (other than to the
Company or any Subsidiary), or a sale or other disposition of all of the Capital
Stock of any Guarantor owned by the Company and its Restricted Subsidiaries
(other than to the Company or any Subsidiary), then such Guarantor and its
successors in interest (in the event of a sale or other disposition, by way of
merger, consolidation or otherwise, of all of the Capital Stock of such
Guarantor) or such Guarantor and the Person acquiring the assets (in the event
of a sale or other disposition of all or substantially all of the assets of such
Guarantor) will be released and relieved of any obligations under this
Indenture, including, without limitation, its Subsidiary Guarantee; provided
that the Net Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of this Indenture, including without
limitation Section 4.10 hereof. Upon delivery by the Company to the Trustee of
an Officers' Certificate and an Opinion of Counsel to the effect that such sale
or other disposition was made by the Company in accordance with the applicable
provisions of this Indenture, including without limitation Section 4.10 hereof,
the Trustee shall execute any documents reasonably required in order to evidence
the release of any Guarantor from its obligations under this Indenture,
including, without limitation, its Subsidiary Guarantee.
Any Guarantor not released from its obligations under its
Subsidiary Guarantee shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any Guarantor under this
Indenture as provided in this Article 11.
Guarantors may also be released from their obligations under
this Indenture pursuant to the procedures in Section 4.16 hereof.
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ARTICLE 12
SATISFACTION AND DISCHARGE
Section 12.01 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall be discharged and shall cease to be of
further effect as to all Notes issued hereunder (other than (1) the Company's
obligations with respect to outstanding Notes under Article 2 and Section 4.02
hereof, (2) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company's obligations in connection therewith, and (3) this
Article 12), when
(iii) either:
(B) all Notes that have been authenticated (except lost,
stolen or destroyed Notes that have been replaced or paid and
Notes for whose payment money has theretofore been deposited
in trust and thereafter repaid to the Company) have been
delivered to the Trustee for cancellation; or
(C) all Notes that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the
making of a notice of redemption or otherwise or will become
due and payable within one year and the Company or any
Guarantor has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust solely for the
benefit of the Holders, cash in U.S. dollars, non-callable
Government Securities, or a combination thereof, in such
amounts as will be sufficient without consideration of any
reinvestment of interest, to pay and discharge the entire
indebtedness on the Notes not delivered to the Trustee for
cancellation for principal, premium and Liquidated Damages, if
any, and accrued interest to the date of maturity or
redemption;
(iv) as to Section 12.01(i)(B) only, no Default or Event of
Default shall have occurred and be continuing on the date of the deposit or
shall occur as a result of the deposit (other than Defaults and Events of
Default related to or arising out of incurrences of Indebtedness and Liens and
customary documentation related thereto) and the deposit will not result in a
breach or violation of, or constitute a default under, any other instrument to
which the Company or any Guarantor is a party or by which the Company or any
Guarantor is bound;
(v) the Company or any Guarantor has paid or caused to be paid
all other sums payable by it under the Indenture; and
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(vi) the Company has delivered irrevocable instructions to the
Trustee under the Indenture to apply the deposited money toward the payment of
the Notes at maturity or the redemption date, as the case may be.
In addition, the Company must deliver an Officers' Certificate
and an Opinion of Counsel to the Trustee together stating that all conditions
precedent to satisfaction and discharge have been satisfied.
Section 12.02 APPLICATION OF TRUST MONEY.
Subject to the provisions of Section 8.06 hereof, all money
deposited with the Trustee pursuant to Section 12.01 hereof shall be held in
trust and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may determine, to
Persons entitled thereto, of the principal (and premium, if any), interest and
Liquidated Damages, if any, for whose payment such money has been deposited with
the Trustee.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 12.01 hereof by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Notes shall
be revived and reinstated as though no such deposit had occurred pursuant to
Section 12.01 hereof; provided that if the Company has made any payment of
principal of, premium, if any, or interest on any Notes because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money or
Government Securities held by the Trustee or Paying Agent.
ARTICLE 13
MISCELLANEOUS
Section 13.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties
shall control.
Section 13.02 NOTICES.
Any notice or communication by the Company, any Guarantor or
the Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested),
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
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If to the Company and/or any Guarantor:
Advance Paradigm, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
With a copy to:
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇., P.C.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Ramsey A. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
If to the Trustee:
U.S. Trust Company of Texas, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust
The Company, or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
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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 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.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on the
register kept by the Registrar. Any notice or communication shall also be so
mailed to any Person described in TIA Section 313(c), to the extent required by
the TIA. Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders.
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 13.03 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
Section 13.04 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, after the Issue Date, the Company shall
furnish to the Trustee:
(iii) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include the statements set
forth in Section 13.05 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
(iv) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 13.05 hereof
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and may rely upon such Officers' Certificate as to factual matters unless such
counsel knows the Officers' Certificate is erroneous) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have been
satisfied.
Section 13.05 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 comply with the provisions of
TIA Section 314(e) and shall include:
(iii) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(iv) 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;
(v) a statement that, in the opinion of such Person, he or she
has or they have 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
(vi) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
Section 13.06 RULES BY TRUSTEE AND AGENTS.
(iii) 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.
(iv) If the Company shall solicit from the Holders any
request, demand, authorization, direction, notice, consent, waiver or other act,
the Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of such Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other
act, but the Company shall have no obligation to do so. Notwithstanding TIA
Section 316(c), any such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not more than 30 days
prior to the first solicitation of Holders generally in connection therewith and
no later than the date of such solicitation is completed.
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If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether holders of the requisite proportion of Notes then
outstanding have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other act, and for this
purpose the Notes then outstanding shall be computed as of such record date;
provided that no such request, demand, authorization, direction, notice,
consent, waiver or other act by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
Section 13.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
SHAREHOLDERS.
No director, officer, employee, incorporator or stockholder of
the Company or any Guarantor, in that capacity, will have any liability for any
obligations of the Company or the Guarantors under the Notes, the Subsidiary
Guarantees, this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. This waiver and release are part of the
consideration for issuance of the Notes.
Section 13.08 GOVERNING LAW.
THIS INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.
Section 13.09 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 13.10 SUCCESSORS.
All agreements of the Company and the Guarantors in this
Indenture and the Notes shall bind their respective successors. All agreements
of the Trustee in this Indenture shall bind its successors.
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Section 13.11 SEVERABILITY.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 13.12 COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
Section 13.13 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.
[Indenture signature page follows]
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[Indenture signature page]
Company:
Date: __________, 2000 ADVANCE PARADIGM, INC.
By:
------------------------------
Name:
Title:
Guarantors:
Date: ___________,__ ADVP CONSOLIDATION, L.L.C.
By:
------------------------------
Name:
Title:
Date: ___________,__ ▇▇▇▇▇▇▇▇▇.▇▇▇, L.P.
By:
------------------------------
Name:
Title:
Date: ___________,__ ADVP MANAGEMENT, L.P.
By:
------------------------------
Name:
Title:
Date: ___________,__ ADVP OPERATIONS, L.P.
By:
------------------------------
Name:
Title:
1
144
Date: ___________,__ HMN HEALTH SERVICES, INC.
By:
------------------------------
Name:
Title:
Date: ___________,__ INNOVATIVE PHARMACEUTICAL
STRATEGIES, INC.
By:
------------------------------
Name:
Title:
Date: ___________,__ MATURE RX PLUS OF NEVADA, INC.
By:
------------------------------
Name:
Title:
Date: ___________,__ PHOENIX COMMUNICATIONS INTERNATIONAL,
INC.
By:
------------------------------
Name:
Title:
2
145
Date: ___________,__ FIRST FLORIDA INTERNATIONAL HOLDINGS, INC.
By:
------------------------------
Name:
Title:
Date: ___________,__ INNOVATIVE MEDICAL RESEARCH, INC.
By:
------------------------------
Name:
Title:
Date: ___________,__ ▇▇▇▇▇▇-▇▇▇▇▇▇ NEUROMEDICAL INSTITUTE, INC.
By:
------------------------------
Name:
Title:
Date: ___________,__ FOUNDATION HEALTH PHARMACEUTICAL SERVICES,
INC.
By:
------------------------------
Name:
Title:
3
146
Date: ___________,__ PCS HOLDING CORPORATION
By:
------------------------------
Name:
Title:
Date: ___________,__ PCS HEALTH SYSTEMS, INC.
By:
------------------------------
Name:
Title:
Date: ___________,__ CLINICAL PHARMACEUTICALS, INC.
By:
------------------------------
Name:
Title:
Date: ___________,__ PCS MAIL SERVICES, INC.
By:
------------------------------
Name:
Title:
Date: ___________,__ PCS SERVICES, INC.
By:
------------------------------
Name:
Title:
4
147
Date: ___________,__ PCS MAIL SERVICES OF BIRMINGHAM, INC.
By:
------------------------------
Name:
Title:
Date: ___________,__ PCS MAIL SERVICES OF FT. WORTH, INC.
By:
------------------------------
Name:
Title:
Date: ___________,__ PCS MAIL SERVICES OF SCOTTSDALE, INC.
By:
------------------------------
Name:
Title:
Date: ___________,__ FFI RX MANAGED CARE, INC.
By:
------------------------------
Name:
Title:
Date: ___________,__ FIRST FLORIDA MANAGED CARE, INC.
By:
------------------------------
Name:
Title:
5
148
Date: ___________,__ AMBULATORY CARE REVIEW SERVICES, INC.
By:
------------------------------
Name:
Title:
Date: ___________,__ Trustee:
U.S. TRUST COMPANY OF TEXAS, N.A.
By:
------------------------------
Name:
Title:
6
149
EXHIBIT A
(FACE OF NOTE)
================================================================================
CUSIP____________
SENIOR SUBORDINATED NOTES DUE 2010
NO. _________ $ ___________
ADVANCE PARADIGM, INC.
promises to pay to
---------------------------------------------------------------
or registered assigns, the principal sum of
------------------------------------------
Dollars on October 2, 2010.
Interest Payment Dates: April 15 and October 15
Record Dates: April 1 and October 1
ADVANCE PARADIGM, INC.
By:
---------------------------
Name:
Title:
This is one of the Notes referred to in the within-mentioned Indenture:
U.S. TRUST COMPANY OF TEXAS, N.A.
as Trustee
By: Dated:
------------------------------------ -----------------------
Authorized Signatory
================================================================================
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(Back of Note)
SENIOR SUBORDINATED NOTES DUE 2010
[Insert the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions
of the Indenture]
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. Interest. Advance Paradigm, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note from
the Issue Date at 11% per annum, which rate will increase to 12% per annum
beginning 18 months from the Issue Date and will increase to 13% per annum
beginning 24 months from the Issue Date, until maturity and shall pay the
Liquidated Damages, if any, payable pursuant to Section 3(e) of the Registration
Rights Agreement referred to below. The Company shall pay interest in cash and
Liquidated Damages semi-annually on April 15 and October 15 of each year, or if
any such day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Notes shall accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from the date of issuance; provided that if there is no existing Default in the
payment of interest, and if this Note is authenticated between a record date
referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment Date; provided,
further, that the first Interest Payment Date shall be April 15, 2001. The
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal and premium, if any, from time to
time on demand at a rate that is 1.0% per annum in excess of the rate then in
effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace periods) from time to
time on demand at the same rate to the extent lawful. Interest shall be computed
on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders of Notes at the close of business on the April 1 or October 1
next preceding the Interest Payment Date, even if such Notes are canceled after
such record date and on or before such Interest Payment Date, except as provided
in Section 2.12 of the Indenture with respect to defaulted interest. The Notes
shall be payable as to principal, premium and Liquidated Damages, if any, and
interest at the office or agency of the Company maintained for such purpose
within or without the City and State of New York, or, at the option of the
Company, payment of interest and Liquidated Damages may be made by
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check mailed to the Holders at their addresses set forth in the register of
Holders; provided, that payment by wire transfer of immediately available funds
shall be required with respect to principal of and interest, premium and
Liquidated Damages on, all Global Notes and all other Notes the Holders of which
own at least $1 million in aggregate principal amount of Notes and shall have
provided wire transfer instructions prior to the record date to the Company or
the Paying Agent. Such payment shall be in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.
3. Paying Agent and Registrar. Initially, U.S. Trust Company of Texas,
N.A., the Trustee under the Indenture, shall act as Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company or any of its Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture dated as
of October 2, 2000 (as such may be amended or supplemented from time to time,
the "Indenture") among the Company, the Guarantors and the Trustee. The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code Sections 77aaa-77bbbb) (the "TIA"). The Notes are subject to all such
terms, and Holders are referred to the Indenture and the TIA for a statement of
such terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be
controlling. The Notes are obligations of the Company limited to $200.0 million
in aggregate principal amount. Terms defined in the Indenture and not defined
herein are used herein as defined in the Indenture.
The Indenture imposes certain limitations on occurrences of
Indebtedness by the Company and its Subsidiaries, Restricted Payments and
certain other types of transactions, all of which covenants are subject to
exceptions as set forth in the Indenture.
5. Optional Redemption.
(A) Except as provided below and in the Registration Rights Agreement,
the Notes shall not be redeemable at the Company's option prior to October 2,
2005. Thereafter, the Company may redeem all or a part of the Notes upon not
less than 30 nor more than 60 days' notice, at the redemption prices (expressed
as percentages of principal amount) set forth below plus accrued and unpaid
interest and Liquidated Damages, if any, thereon to the applicable redemption
date, if redeemed during the twelve-month period beginning on October 2 of the
years indicated below:
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Year Percentage
---- ----------
2005 106.500%
2006 104.333%
2007 102.167%
2008 and thereafter 100.000%
(A) Notwithstanding the foregoing, at any time prior to October 2,
2002, the Company may redeem the Notes at its option, in whole or in an
aggregate principal amount not to exceed $75 million (less any amounts redeemed
pursuant to Section 5(C) below) at a redemption price of 100.000% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages thereon, if any.
(B) In addition to the foregoing, at any time prior to October 2, 2003,
the Company may on one or more occasions redeem up to $75 million of the
aggregate principal amount of the Notes (less any amounts redeemed pursuant to
Section 5(B) above) issued under the Indenture, at a redemption price of
113.000% of the principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages thereon, if any, with the net cash proceeds of one or more
Equity Offerings; provided that: (i) at least $125 million of the aggregate
principal amount of Notes issued under the Indenture remains outstanding
immediately after the occurrence of such redemption (excluding Notes held by the
Company and its Subsidiaries); and (ii) the redemption must occur within 90 days
of the date of the closing of such Equity Offering.
(C) Any redemption pursuant to this provision shall be made pursuant to
the provisions of Section 3.01 through 3.06 of the Indenture.
6. Notice of Redemption. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for redemption.
7. Mandatory Redemption.
The Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
▇-▇
▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇ at Option of Holder.
(a) If there is a Change of Control, the Company shall be required to
make an offer (a "Change of Control Offer") to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of each Holder's Notes at a purchase
price in cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest and Liquidated Damages thereon, if any, to the date
of purchase (the "Change of Control Payment"). Within 30 days following any
Change of Control, the Company shall mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase the Notes on the Change of Control Payment Date and setting forth
the procedures governing the Change of Control Offer as required by the
Indenture.
(b) If the Company or a Subsidiary consummates any Asset Sales, when
the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company shall
commence an offer to all Holders of Notes and all holders of other Indebtedness
that is pari passu with the Notes (an "Asset Sale Offer") pursuant to Sections
3.09 and 4.10 of the Indenture to purchase the maximum principal amount of Notes
and such other pari passu Indebtedness that may be purchased out of the Excess
Proceeds at an offer price in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any,
to the date fixed for the closing of such offer, and will be payable in cash in
accordance with the procedures set forth in the Indenture. If any Excess
Proceeds remain after consummation of an Asset Sale Offer, the Company may use
such Excess Proceeds for any purpose not otherwise prohibited by the Indenture.
If the aggregate principal amount of Notes and such other pari passu
Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes and other pari passu Indebtedness
to be purchased on a pro rata basis based on the principal amount of Notes and
such other pari passu Indebtedness tendered. Holders of Notes that are the
subject of an offer to purchase will receive an Asset Sale Offer from the
Company prior to any related purchase date and may elect to have such Notes
purchased by completing the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Notes.
9. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note selected for redemption in whole or in part, except for the
unredeemed portion of any Note being redeemed in
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154
part. Also, the Company need not exchange or register the transfer of any Notes
for a period beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Notes to be redeemed or during the period
between a record date and the next succeeding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes under the Indenture.
11. Amendment, Supplement and Waiver. Subject to certain exceptions,
the Indenture, the Subsidiary Guarantees or the Notes may be amended or
supplemented with the consent of the Holders of at least a majority in principal
amount of the then outstanding Notes voting as a single class, and any existing
default or compliance with any provision of the Indenture, the Subsidiary
Guarantees or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes voting as a single
class. Without the consent of any Holder of a Note, the Indenture, the
Subsidiary Guarantees or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes in
addition to or in place of certificated Notes, to provide for the assumption of
the Company's or Subsidiary Guarantor's obligations to Holders of the Notes in
case of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder, to
comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA, in accordance with the limitations
set forth in the Indenture, or to allow any Guarantor to execute a supplemental
indenture to the Indenture and/or a Subsidiary Guarantee with respect to the
Notes.
▇-▇
▇▇▇
▇▇. Defaults and Remedies.
(a) Events of Default under the Indenture include: (i) default for 30
days in the payment when due of interest on, or Liquidated Damages with respect
to, the Notes (whether or not such payment is then prohibited by Article 10 of
the Indenture); (ii) default in payment when due of the principal of, or
premium, if any, on the Notes (whether or not such payment is then prohibited by
Article 10 of the Indenture); (iii) failure by the Company or any of its
Restricted Subsidiaries to comply with the provisions of Sections 4.10 and 5.01
of the Indenture; (iv) failure by the Company or any of its Subsidiaries to
comply with any of the other covenants in the Indenture for a period of 60 days
after written notice by the Trustee or by the Holders of at least 25% in
principal amount of Notes then outstanding; (v) default under any mortgage,
indenture or instrument under which there is issued and outstanding any
Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or Indebtedness of an Unrestricted Subsidiary that is Guaranteed
by the Company or any of its Restricted Subsidiaries) whether such Indebtedness
or guarantee now exists, or is created after the Issue Date, if that default (a)
is caused by a failure to pay principal at the final stated maturity of such
Indebtedness (a "Payment Default") or (b) results in the acceleration of such
Indebtedness prior to its stated maturity, but only if the principal amount of
any such Indebtedness, together with the principal amount of any other
Indebtedness under which there has been a Payment Default or the maturity of
which has been so accelerated, aggregates $10.0 million or more; (vi) failure by
the Company or any of its Subsidiaries to pay final judgments aggregating in
excess of $10.0 million, or any judgments aggregating in excess of $20.0 million
for such events contained in Schedule 4.01(f) of the Credit Agreement (net of
amounts covered by insurance or indemnity arrangements provided by a reputable
and creditworthy insurance company or other Person), which judgments are not
paid, discharged or stayed for a period of 60 consecutive days after the
judgments become final and non-appealable; (vii) any Subsidiary Guarantee by a
Guarantor that is a Material Subsidiary or Restricted Subsidiaries that if taken
together would constitute a Material Subsidiary, (x) shall be held in any
judicial proceeding to be unenforceable or invalid, or (y) shall cease for any
other reason, other than in accordance with its terms, to be in full force and
effect, and for purposes of this clause (y) only, and such failure shall
continue for a period of three days after written notice by the Trustee or
Holders of at least 25% in principal amount of the Notes then outstanding to
such Guarantor, or (z) any Guarantor that is a Significant Subsidiary, or any
Person acting on behalf of any Guarantor that is a Significant Subsidiary, shall
deny or disaffirm its obligations under its Subsidiary Guarantee; and (viii)
certain events of bankruptcy or insolvency with respect to the Company or any of
its Significant Subsidiaries.
(b) If any Event of Default occurs and is continuing, the Trustee (upon
request of the Holders of at least 25% in principal amount of the Notes then
outstanding) or the
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Holders of at least 25% in principal amount of the Notes then outstanding may
declare all the Notes to be due and payable, including in each case accrued and
unpaid interest thereon, by notice in writing to the Company and the Trustee
specifying the respective Event of Default and that such notice is an
Acceleration Notice, and the same (i) shall become immediately due and payable
or (ii) if there are any amounts outstanding under the Credit Agreement, shall
become immediately due and payable upon the first to occur of (x) an
acceleration under the Credit Agreement or (y) five Business Days after receipt
by the Company and the Representative under the Credit Agreement of such
Acceleration Notice, but only if such Event of Default is then continuing.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency with respect to the Company, all
outstanding Notes shall become due and payable without further action or notice.
Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of the Notes notice of
any continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal of, premium, if any, or interest) if it
determines that withholding notice is in their interest. The Holders of a
majority in aggregate principal amount of the then outstanding Notes by notice
to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default or Event of Default and its consequences under the Indenture,
except a continuing Default or Event of Default in the payment of principal of,
premium and Liquidated Damages, if any, or interest on, the Notes. The Company
shall deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company, upon becoming aware of any Default or Event of
Default, deliver to the Trustee a statement specifying such Default or Event of
Default.
13. Subordination. Each Holder by accepting a Note agrees that the
Indebtedness evidenced by the Note is subordinated in right of payment, to the
extent and in the manner provided in Article 10 of the Indenture, to the prior
payment in full in cash or Cash Equivalents (other than Cash Equivalents of the
type referred to in clauses (iii) and (iv) of the definition thereof) of all
Senior Debt (whether outstanding on the Issue Date or thereafter created,
incurred, assumed or guaranteed), and that the subordination is for the benefit
of the holders of Senior Debt.
14. Subsidiary Guarantees. The payment of principal of, premium, and
interest and Liquidated Damages, if any, on the Notes are unconditionally
guaranteed, jointly and severally, on a senior subordinated basis by the
Guarantors. The Indenture does not require all Subsidiaries of the Company to be
Guarantors, and provides for the release of certain Guarantors under certain
circumstances.
▇-▇
▇▇▇
▇▇. Trustee Dealings with Company. The Trustee, 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 the Trustee.
16. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder, of the Company or any Guarantor, as such, shall not
have any liability for any obligations of the Company or any Guarantor under the
Notes, any Subsidiary Guarantee or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for the issuance of the Notes.
17. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
18. 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 entirety), 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).
19. Additional Rights of Holders. In addition to the rights provided to
Holders of Notes under the Indenture, Holders shall have all the rights set
forth in the Registration Rights Agreement between the Company and the other
parties thereto.
20. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of
redemption and that reliance may be placed only on the other identification
numbers placed thereon, and any such redemption shall not be affected by any
defect in or the omission of such numbers.
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The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Advance Paradigm, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
21. Governing Law. The Indenture, the Notes and the Subsidiary
Guarantees shall be governed by, and construed in accordance with, the laws of
the state of New York, without regard to conflicts of law principles thereof.
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
and irrevocably appoint ______ to transfer this Note on the books of the
Company. The agent may substitute another to act for him.
Date:
---------
Your Signature:
-------------------------------------
(Sign exactly as your name appears on the face of this Note)
Tax Identification No:
-------------------------------
SIGNATURE GUARANTEE:
---------------------------------
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
Section 4.10 Section 4.14
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.14 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 Note)
Tax Identification No:
-------------------------
SIGNATURE GUARANTEE:
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
By:
By:
--------------------------------------
Name:
Title:
▇-▇▇
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ OF INTERESTS IN THE GLOBAL NOTE(1)
The following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global
Note or Definitive Note for an interest in this Global Note, have been made:
Amount of Amount of Principal Amount Signature of
decrease in increase in of this Global authorized
Principal Amount Principal Amount Note following signatory of
Date of of this Global of this Global such decrease Trustee or Note
Exchange Note Note (or increase) Custodian
----------
(1) INCLUDE ONLY IF NOTE IS ISSUED IN GLOBAL FORM.
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EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Advance Paradigm, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
U.S. Trust Company of Texas, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust
Re: Senior Subordinated Notes due 2010
Reference is hereby made to the Indenture, dated as of October 2, 2000
(as such may be amended or supplemented from time to time, the "Indenture"),
among Advance Paradigm, Inc., as issuer (the "Company"), the Guarantors and U.S.
Trust Company of Texas, N.A., as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
______________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to __________ (the "Transferee"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE 144A
GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is being
effected pursuant to and in accordance with Rule 144A under the United States
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the beneficial interest or Definitive
Note is being transferred to a Person that the Transferor reasonably believed
and believes is purchasing the beneficial interest or Definitive Note for its
own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Transfer is in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
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consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.
2. CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, (iii) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the Restricted
Period, the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than the Initial Purchaser). Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note and/or the Definitive Note and in the Indenture and
the Securities Act.
3. CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE
SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being
effected in compliance with the transfer restrictions applicable to beneficial
interests in Restricted Global Notes and Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act and any applicable blue
sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) such Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act;
or
(b) such Transfer is being effected to the Company or a Subsidiary thereof;
or
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(c) such Transfer is being effected pursuant to an effective registration
statement under the Securities Act and in compliance with the prospectus
delivery requirements of the Securities Act;
or
(d) such Transfer is being effected to an Institutional Accredited Investor and
pursuant to an exemption from the registration requirements of the Securities
Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor hereby
further certifies that it has not engaged in any general solicitation within the
meaning of Regulation D under the Securities Act and the Transfer complies with
the transfer restrictions applicable to beneficial interests in a Restricted
Global Note or Restricted Definitive Notes and the requirements of the exemption
claimed, which certification is supported by (1) a certificate executed by the
Transferee in the form of Exhibit D to the Indenture and (2) if such Transfer is
in respect of a principal amount of Notes at the time of transfer of less than
$250,000, an Opinion of Counsel provided by the Transferor or the Transferee (a
copy of which the Transferor has attached to this certification), to the effect
that such Transfer is in compliance with the Securities Act. Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the IAI Global Note and/or the Definitive Notes and in the Indenture and the
Securities Act.
4. Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being
effected pursuant to and in accordance with Rule 144 under the Securities Act
and in compliance with the transfer restrictions contained in the Indenture and
any applicable blue sky securities laws of any state of the United States and
(ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.
(b) CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not
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required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will no longer
be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Notes, on Restricted Definitive Notes
and in the Indenture.
(c) CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is being
effected pursuant to and in compliance with an exemption from the registration
requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and
in compliance with the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any State of the United States and (ii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will not be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes or Restricted
Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
Dated: , 20
------------------- -- --------------------------------
[Insert Name of Transferor]
By:
------------------------------
Name:
Title:
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ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) a beneficial interest in the:
(i) 144A Global Note (CUSIP _______), or
(ii) Regulation S Global Note (CUSIP _______), or
(iii) IAI Global Note (CUSIP ________); or
(b) a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) a beneficial interest in the:
(i) 144A Global Note (CUSIP _______), or
(ii) Regulation S Global Note (CUSIP _______), or
(iii) IAI Global Note (CUSIP _______); or
(iv) Unrestricted Global Note (CUSIP _______); or
(b) a Restricted Definitive Note; or
(c) an Unrestricted Definitive Note, in accordance with the terms of the
Indenture.
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EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Advance Paradigm, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
U.S. Trust Company of Texas, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust
Re: Senior Subordinated Notes due 2010
(CUSIP ______________)
Reference is hereby made to the Indenture, dated as of October 2, 2000
(as such may be amended or supplemented from time to time, the "Indenture"),
among Advance Paradigm, Inc., as issuer (the "Company"), the Guarantors and U.S.
Trust Company of Texas, N.A., as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
____________, (the "Owner") owns and proposes to exchange the Note[s]
or interest in such Note[s] specified herein, in the principal amount of
$____________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS
IN AN UNRESTRICTED GLOBAL NOTE
(a) CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
beneficial interest in an Unrestricted Global Note in an equal principal amount,
the Owner hereby certifies (i) the beneficial interest is being acquired for the
Owner's own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with the United States Securities Act of 1933, as
amended (the "Securities Act"), (iii) the restrictions on transfer
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contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest in an Unrestricted Global Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(b) CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner's
beneficial interest in a Restricted Global Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Definitive Note is being acquired for
the Owner's own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(c) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST
IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for a beneficial interest in an Unrestricted Global
Note, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
(d) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO UNRESTRICTED
DEFINITIVE NOTE. In connection with the Owner's Exchange of a Restricted
Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies
(i) the Unrestricted Definitive Note is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
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2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED
GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES
(a) CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO
RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner's
beneficial interest in a Restricted Global Note for a Restricted Definitive Note
with an equal principal amount, the Owner hereby certifies that the Restricted
Definitive Note is being acquired for the Owner's own account without transfer.
Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the Restricted Definitive Note issued will continue to be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Definitive Note and in the Indenture and the Securities Act.
(b) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST
IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner's
Restricted Definitive Note for a beneficial interest in the [CHECK ONE] 144A
Global Note, Regulation S Global Note, IAI Global Note with an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer and (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, and in compliance with any applicable blue sky securities laws of any state
of the United States. Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the beneficial interest issued will be subject
to the restrictions on transfer enumerated in the Private Placement Legend
printed on the relevant Restricted Global Note and in the Indenture and the
Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[Insert Name of Owner]
By:
-----------------------------------
Name:
Title:
Dated: ,
---------- ----
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EXHIBIT D
FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL
ACCREDITED INVESTOR
Advance Paradigm, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇
U.S. Trust Company of Texas, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust
Re: Senior Subordinated Notes due 2010
Reference is hereby made to the Indenture, dated as of October 2, 2000
(as such may be amended or supplemented from time to time, the "Indenture"),
among Advance Paradigm, Inc., as issuer (the "Company"), the Guarantors and U.S.
Trust Company of Texas, N.A., as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) a beneficial interest in a Global Note, or
(b) a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any interest
therein is subject to certain restrictions and conditions set forth in the
Indenture and the undersigned agrees to be bound by, and not to resell, pledge
or otherwise transfer the Notes or any interest therein except in compliance
with, such restrictions and conditions and the United States Securities Act of
1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been registered
under the Securities Act, and that the Notes and any interest therein may not be
offered or sold
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except as permitted in the following sentence. We agree, on our own behalf and
on behalf of any accounts for which we are acting as hereinafter stated, that if
we should sell the Notes or any interest therein, we will do so only (A) to the
Company or any subsidiary thereof, (B) in accordance with Rule 144A under the
Securities Act to a "qualified institutional buyer" (as defined therein), (C) to
an institutional "accredited investor" (as defined below) that, prior to such
transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to
you and to the Company a signed letter substantially in the form of this letter
and, if such transfer is in respect of a principal amount of Notes, at the time
of transfer less than $250,000, an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such transfer is in compliance with
the Securities Act, (D) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to the provisions of Rule
144(k) under the Securities Act or (F) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing the Definitive Note or beneficial interest in a Global Note
from us in a transaction meeting the requirements of clauses (A) through (E) of
this paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or beneficial
interest therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act) and have such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Notes, and we and any
accounts for which we are acting are each able to bear the economic risk of our
or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased by us for
our own account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
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You, the Company and your respective counsel are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.
----------------------------------------
[Insert Name of Accredited Investor]
By:
-------------------------------------
Name:
Title:
Dated: ,
---------- ----
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EXHIBIT E
FORM OF NOTATION OF SUBSIDIARY GUARANTEE ON NOTE
Pursuant and subject to the terms of the Indenture, each Guarantor has
jointly and severally and unconditionally guaranteed to each Holder and to the
Trustee the prompt payment in full of the principal of and interest on the Notes
and the performance of all other obligations of the Company under the Indenture.
The Subsidiary Guarantees are subordinated as set forth in Section
11.02 of the Indenture. Each Guarantor's liability under its Subsidiary
Guarantee is limited as set forth in Section 11.03 of the Indenture. Guarantors
may be released from the Subsidiary Guarantee as provided in Article 11 and
Section 4.16 of the Indenture.
The provisions of Article 11 of the Indenture are incorporated herein
by reference. Capitalized terms used herein have the same meanings given to such
terms in the Indenture.
Date: __________, 2000 ADVP CONSOLIDATION, L.L.C.
By:
------------------------------
Name:
Title:
Date: __________, 2000 ▇▇▇▇▇▇▇▇▇.▇▇▇, L.P.
By:
------------------------------
Name:
Title:
Date: __________, 2000 ADVP MANAGEMENT, L.P.
By:
------------------------------
Name:
Title:
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Date: __________, 2000 ADVP OPERATIONS, L.P.
By:
------------------------------
Name:
Title:
Date: __________, 2000 HMN HEALTH SERVICES, INC.
By:
------------------------------
Name:
Title:
Date: __________, 2000 INNOVATIVE PHARMACEUTICAL STRATEGIES, INC.
By:
------------------------------
Name:
Title:
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Date: __________, 2000 MATURE RX PLUS OF NEVADA, INC.
By:
------------------------------
Name:
Title:
Date: __________, 2000 PHOENIX COMMUNICATIONS INTERNATIONAL, INC.
By:
------------------------------
Name:
Title:
Date: __________, 2000 FIRST FLORIDA INTERNATIONAL HOLDINGS, INC.
By:
------------------------------
Name:
Title:
Date: __________, 2000 INNOVATIVE MEDICAL RESEARCH, INC.
By:
------------------------------
Name:
Title:
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Date: __________, 2000 ▇▇▇▇▇▇-▇▇▇▇▇▇ NEUROMEDICAL INSTITUTE, INC.
By:
------------------------------
Name:
Title:
Date: __________, 2000 FOUNDATION HEALTH PHARMACEUTICAL SERVICES,
INC.
By:
------------------------------
Name:
Title:
Date: __________, 2000 PCS HOLDING CORPORATION
By:
------------------------------
Name:
Title:
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Date: __________, 2000 PCS HEALTH SYSTEMS, INC.
By:
------------------------------
Name:
Title:
Date: __________, 2000 CLINICAL PHARMACEUTICALS, INC.
By:
------------------------------
Name:
Title:
Date: __________, 2000 PCS MAIL SERVICES, INC.
By:
------------------------------
Name:
Title:
Date: __________, 2000 PCS SERVICES, INC.
By:
------------------------------
Name:
Title:
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Date: __________, 2000 PCS MAIL SERVICES OF BIRMINGHAM, INC.
By:
------------------------------
Name:
Title:
Date: __________, 2000 PCS MAIL SERVICES OF FT. WORTH, INC.
By:
------------------------------
Name:
Title:
Date: __________, 2000 PCS MAIL SERVICES OF SCOTTSDALE, INC.
By:
------------------------------
Name:
Title:
Date: __________, 2000 FFI RX MANAGED CARE, INC.
By:
------------------------------
Name:
Title:
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Date: __________, 2000 FIRST FLORIDA MANAGED CARE, INC.
By:
------------------------------
Name:
Title:
Date: __________, 2000 AMBULATORY CARE REVIEW SERVICES, INC.
By:
------------------------------
Name:
Title:
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EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated
as of ____________________, by and between _____________________ (the
"Guaranteeing Subsidiary"), a ____________________ formed under the laws of
_______________ and a subsidiary of Advance Paradigm, Inc. (the "Company"), and
U.S. Trust Company of Texas, N.A., as trustee under the indenture referred to
below (the "Trustee").
WITNESSETH
WHEREAS, the Company, the Trustee and certain Guarantors are
parties to an indenture (as amended and supplemented from time to time, the
"Indenture"), dated as of October 2, 2000 providing for the issuance of an
aggregate principal amount of $200,000,000 of Senior Subordinated Notes due 2010
(the "Notes");
WHEREAS, the Indenture provides that under certain
circumstances a Subsidiary of the Company shall execute and deliver to the
Trustee a supplemental indenture pursuant to which such Subsidiary shall
unconditionally Guarantee all of the Company's Obligations under the Notes and
the Indenture on the terms and conditions set forth herein (the "Subsidiary
Guarantee"); and
WHEREAS, pursuant to Section 9.01 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 Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes 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. Subject to the terms and conditions
of the Indenture, the Guaranteeing Subsidiary hereby, jointly and severally,
with all other Guarantors, unconditionally Guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of the Indenture,
the Notes or the Obligations of the Company thereunder, that:
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181
(i) the principal of and interest on the Notes will be
promptly paid in full when due, whether at maturity, by acceleration, redemption
or otherwise, and interest on the overdue principal of and interest on the
Notes, if any, if lawful, and all other Obligations of the Company to the
Holders or the Trustee thereunder will be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of
any Notes or any of such other 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 or otherwise.
3 Execution and Delivery. The Guaranteeing Subsidiary agrees
that the Subsidiary Guarantee shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee.
4. Releases. Guarantors may be released from their obligations
under the Indenture pursuant to Sections 4.16 and 11.05 of the Indenture.
5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF
NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
6. 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.
7. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
8. The Trustee. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.
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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: , 20
--------------- --
[Guaranteeing Subsidiary]
By:
-------------------------------------
Name:
Title:
U.S. TRUST COMPANY OF TEXAS, N.A.
as Trustee
By:
-------------------------------------
Name:
Title:
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