SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
June 24, 1999
HEALTHCOR HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 0-20881 75-2294072
(State or other (Commission (IRS employer
jurisdiction of file number) identification no.)
incorporation or
organization)
8150 NORTH CENTRAL EXPY., SUITE M-2000
DALLAS, TEXAS 75206
(Address and zip code of principal executive offices)
Registrant's telephone number, including area code:
(214) 692-4663
<PAGE>
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
ASSET PURCHASE:
On June 30, 1999, HealthCor Holdings, Inc., a Delaware corporation
("HEALTHCOR") entered into and consummated an Asset Purchase Agreement (the
"PURCHASE AGREEMENT") with Lincare Inc., a Delaware corporation
("LINCARE"). The Purchase Agreement provided for, among other things, the
acquisition by Lincare of substantially all of the business and assets of
HealthCor's Home Medical Equipment Division (the "BUSINESS") for a purchase
price of $12 million plus an additional $1 million of assumed liabilities.
The purchase price was determined by an arm's length negotiation among
the parties to the Purchase Agreement. The assets disposed of pursuant to
the Purchase Agreement include the operating assets of the Business in
addition to all intangible assets, intellectual property, all lists,
records and files pertaining to customers, all computer software and
systems and related licenses. The liabilities assumed by Lincare pursuant
to the Purchase Agreement include all debts, liabilities and obligations of
every kind incurred in connection with Lincare's conduct of business or
ownership of the purchased assets from and after the Closing Date.
ITEM 5.
AMENDED AND RESTATED INDENTURE:
On June 24, 1999 HealthCor entered into an Amended and Restated
Indenture, by and among HealthCor as issuer, the guarantors signatory
thereto (the "Guarantors") and Norwest Bank Minnesota, National
Association, as trustee (the "Trustee") adding collateral and amending and
restating certain terms of the indenture dated as of December 1, 1997, by
and among HealthCor, the Guarantors and the Trustee, relating to
$80,000,000 of 11% Senior Notes of HealthCor due May 15, 2004, as amended.
ITEM 7. PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(b) PRO FORMA FINANCIAL INFORMATION
The required pro forma financial information will be filed by an amendment
not later than 60 days after the date that the initial report on Form 8-K
must be filed.
(c) EXHIBITS
The following Exhibits are filed herewith:
2.1 Asset Purchase Agreement, dated June 30, 1999, by
and between HealthCor and Lincare.
4.1 Amended and Restated Indenture, dated as of June 24,
1999, by and among HealthCor, the Guarantors and the
Trustee.
Pursuant to Item 601(b) of Regulation S-K, HealthCor agrees to furnish
supplementally to the Securities and Exchange Commission, upon request, any
omitted schedules or similar attachments to the foregoing exhibit.
[SIGNATURE PAGE FOLLOWS]
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
HEALTHCOR HOLDINGS, INC.
By: /s/MICHAEL D. AYRES
------------------------------------
Michael D. Ayres, President and
Treasurer
Date: July 15, 1999
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
2.1 Asset Purchase Agreement, dated June 30, 1999, by and
between HealthCor Holdings, Inc. and Lincare Inc.
4.1 Amended and Restated Indenture, dated as of June 24, 1999,
by and among HealthCor, the Guarantors and the Trustee.
EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
AGREEMENT, made as of this 30th day of June, 1999, by and among
LINCARE INC., a corporation duly organized and existing under the laws of
the State of Delaware, having its principal place of business at 19337 U.S.
19 North, Suite 500, Clearwater, Florida 33764 (hereinafter referred to as
"Lincare") and HEALTHCOR HOLDINGS, INC., a corporation duly organized and
existing under the laws of the State of Delaware, having its principal
place of business at 8150 North Central Expressway, Suite M2000, Dallas,
Texas 75206 (hereinafter referred to as the "Company").
W I T N E S S E T H:
WHEREAS, the Company is engaged in the business of marketing,
advertising, selling, leasing, renting, distributing or otherwise providing
oxygen, oxygen equipment, aerosol inhalation therapy equipment and
respiratory medications, nasal continuous positive airway pressure devices,
infant monitoring equipment and services, home sleep studies and related
therapy equipment, and other respiratory therapy and durable medical
equipment, products, supplies and services to customers in their homes or
other alternative site care facilities in the Territory (as such term is
defined in Section 1.1(f) hereof); and
WHEREAS, Lincare desires to acquire, and Company desires to sell to
Lincare, substantially all of the business and assets of Company's Home
Medical Equipment Division;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, the parties hereto agree and
contract as follows:
ARTICLE 1 - DEFINITIONS
1.1 In this Agreement, the following terms shall mean the
following:
(a) "ASSETS" shall mean and include all assets and properties
owned, leased, rented, used or otherwise possessed by Company in respect of
the Business (as such term is defined in Section 1.1(b) hereof), of every
kind, character and description, whether tangible or intangible, and
wherever located, except for the Excluded Assets (as such term is defined
in Section 1.1(c) hereof). The Assets shall include, but shall not be
limited to, the following:
(i) all of Company's rights with respect to the real
property leased, rented, used or otherwise possessed by the Company in
respect of the Business at those locations listed on Schedule 1 hereto
which are not identified as Excluded Assets;
(ii) all of the oxygen equipment, aerosol inhalation
therapy equipment, nasal continuous positive airway pressure devices,
infant monitoring equipment, home sleep study and related therapy equipment
and all other respiratory therapy and durable medical equipment, products
and supplies owned, leased, rented, used or otherwise possessed by the
Company in respect of the Business (including, but not limited to, all of
such items provided to customers in their homes or alternative site care
facilities);
(iii) all of the inventory, disposables, spare parts,
materials, work-in-process and supply items owned, leased, rented, used or
otherwise possessed by Company in respect of the Business;
(iv) all other equipment, products, machines, furniture,
fixtures, furnishings, parts, supplies and vehicles owned, leased, rented,
used or otherwise possessed by Company in respect of the Business;
(v) all patents, trademarks, trade names, service marks,
copyrights and applications therefor owned or licensed by Company in
respect of the Business, including, but not limited to, the names "I
CareNetwork", "McDuffie's Rentals, Inc.,", "Charlie's Drug and Medical",
and use of the name "HealthCor Oxygen & Medical Equipment" for a period of
up to six (6) months after the Closing;
(vi) the originals and all copies of the customer list and
copies of all customer files of Company in respect of the Business, the
current and historical referral list of the Company in respect of the
Business, and all other documents, files and records of, or relating to,
any of the Assets or the Business (as defined in Section 1.1(b) hereof);
(vii) all of the rights and interests in and to the
specific contracts, agreements and leases set forth on Schedules 1, 2 and 3
attached hereto, but specifically excluding as Excluded Assets, subject to
the provisions of Sections 3.3 and 4.5(b)(ii) and (iii) hereof, those
contracts, agreements and leases listed on Schedules 1, 2 and 3 hereof and
designated as Excluded Assets. Company represents and warrants to Lincare
that Schedules 1, 2, and 3 contain each and every contract, agreement and
lease of, or relating to, the Business or any of the Assets; provided,
however, that if at any time it is determined that any contract, agreement
or lease was omitted from such schedules, Lincare shall have the option, in
its sole discretion, to determine whether such contract, agreement or lease
shall be an Asset or Excluded Asset under this Agreement, whether to accept
or reject assignment of each such contract, agreement or lease, and whether
the Contract Asset Purchase Requirements (as defined in Section 3.3 hereof)
of Sections 3.3 and 4.5(b)(iii) shall apply to any such additional
contract, agreement or lease. Company agrees to amend promptly Schedule 1,
2, or 3 hereof, as the case may be, to include all such additional
contracts, agreements, and leases in accordance with Lincare's
determinations;
(viii) the sole and exclusive use of all regulatory licenses
and permits owned, held, possessed, or otherwise used by Company in respect
of the Business;
(ix) all of the Business of Company; and
(x) the exclusive use of the telephone numbers of Company
in respect of the Business and all intangible personal property rights and
goodwill of Company in respect of the Business.
(b) "BUSINESS" shall mean the entire business of the Company of
marketing, advertising, selling, leasing, renting, distributing or
otherwise providing oxygen, oxygen equipment, aerosol inhalation therapy
equipment and respiratory medications, nasal continuous positive airway
pressure devices, infant monitoring equipment and services, home sleep
studies and related therapy equipment, and other respiratory therapy and
durable medical equipment, products, supplies and services to customers in
their homes or other alternative site care facilities. Notwithstanding the
foregoing, the Business shall not be deemed to include the Denver, Colorado
operations of Company's HME Division.
(c) "EXCLUDED ASSETS" shall mean exclusively the following:
(i) the cash and cash equivalents owned by Company and on
hand on the day immediately preceding the Closing Date;
(ii) subject to the provisions of Sections 3.3 and
4.5(b)(ii) and (iii) hereof, the contracts, agreements and leases listed on
Schedules 1, 2 and 3 hereof which are designated as Excluded Assets on such
schedules;
(iii) all of the Accounts Receivable (as such term is
defined in Section 1.1(g) hereof) of Company on hand on the Closing Date;
(iv) all of the business and assets used exclusively in
connection with the Denver, Colorado operations of Company's HME Division;
(v) all of the vehicles of Company in respect of the
Business that are not specifically identified on Schedule 3B hereto, and
all liabilities and obligations related thereto; and
(vi) all of Company's rights and interests with respect to
the real property leased, rented, used or otherwise possessed by the
Company in respect of the Business at those locations which are not
specifically listed on Schedule 1 hereto, and all liabilities and
obligations related thereto; provided, however, Lincare shall have the
right to use, without charge, those facilities for a period of up to thirty
(30) days after the Closing for transition of the Business into Lincare.
(d) "ACCEPTED LIABILITIES" shall mean exclusively the
following:
(i) all debts, liabilities and obligations of every kind
whatsoever incurred in connection with or arising out of Lincare's conduct
of the Business or ownership of the Assets from and after the Closing Date;
(ii) pursuant to the provisions of Section 4.5(b)(ii)
hereof, Lincare shall be responsible for the liabilities, duties and
obligations arising out of the contracts, agreements and leases listed on
Schedules 1, 2 and 3 hereof which are not designated as Excluded Assets and
which liabilities, duties and obligations arise and pertain to periods
commencing on or after the Closing Date; and
(iii) those certain liabilities of Company expressly set
forth on Schedule 1.1(d)(iii) hereto, which liabilities shall not exceed,
in the aggregate, THREE MILLION TWO HUNDRED SEVENTY FIVE THOUSAND SEVEN
HUNDRED THIRTY FIVE AND 84/100 DOLLARS ($3,275,735.84); provided however,
if the total aggregate amount required to pay off in full all such Accepted
Liabilities listed on Schedule 1.1(d)(iii) (including, but not limited to,
the payment of any purchase options or other similar payments relating to
any Assets subject to any lease or rental agreement) exceeds $3,275,735.84
(such amount in excess of $3,275,735.84 hereinafter referred to as the
"Excess Amount"), then the payments to be made pursuant to Section
3.1(a)(ii)and(iii) hereof shall be reduced by the Excess Amount, as
applicable. In the event that any or all of the Excess Amount cannot be
deducted from such Purchase Price payment, then any such additional Excess
Amount shall be the sole obligation of the Company, which shall be payable
by the Company to Lincare within ten (10) days of Lincare's demand
therefor.
(e) "EXCLUDED LIABILITIES" shall mean and include all debts,
liabilities and obligations of Company of every kind, character and
description whatsoever, except for the Accepted Liabilities.
(f) "TERRITORY" shall mean the States of Arizona, Arkansas,
Kansas, Missouri, New Mexico, Oklahoma and Texas and a radius of (150)
miles from each of the Business' current operating locations, regardless of
which states such territory may include.
(g) "ACCOUNTS RECEIVABLE" shall mean the accounts receivable of
Company as of the close of business on the Closing Date, including the
amounts billed in respect of equipment and services provided by Company
which relate to customer cycle billing dates occurring on or prior to the
Closing Date, and the amounts billed in respect of equipment and services
provided by Company on or prior to the Closing Date, whether billed before
or after the Closing Date.
1.2 In addition to the terms defined in Section 1.1 hereof, other
terms defined elsewhere in this Agreement shall have the meanings set forth
therein.
ARTICLE 2 - PURCHASE AND SALE OF ASSETS
Subject to the terms and conditions set forth in this Agreement,
Company hereby sells, conveys, transfers, assigns, and delivers to Lincare,
and Lincare hereby purchases and accepts from Company, good and marketable
title to the Assets, free and clear of any restrictions or conditions to
transfer or assignment and free and clear of all liens, mortgages, pledges,
encumbrances, agreements, leases, contracts, claims, security interests,
taxes, conditions enforceable by any third party, covenants, conditions or
restrictions of any kind or description (hereinafter referred to
collectively as "Encumbrances").
ARTICLE 3 - PURCHASE PRICE AND METHOD OF PAYMENT
3.1 PURCHASE PRICE AND METHOD OF PAYMENT.
(a) The aggregate purchase price (hereinafter referred to as the
"Purchase Price") for the Assets and the Business shall be NINE MILLION
SEVEN HUNDRED TWENTY FOUR THOUSAND TWO HUNDRED SIXTY FOUR AND 16/100
DOLLARS ($9,724,264.16), payable to Company, or its designees, as follows:
(i) EIGHT MILLION SEVEN HUNDRED TWENTY FOUR THOUSAND TWO
HUNDRED SIXTY FOUR AND 16/100 DOLLARS ($8,724,264.16) shall be paid in cash
at the Closing (as such term is defined in Section 6.1 hereof); and
(ii) FIVE HUNDRED THOUSAND DOLLARS ($500,000) shall be
payable, without interest, three (3) months after the Closing Date; and
(iii) FIVE HUNDRED THOUSAND DOLLARS ($500,000) shall be
payable, without interest, six (6) months after the Closing Date.
3.2 ACCEPTED LIABILITIES.
In connection with its purchase of the Assets hereunder, Lincare shall
assume and be responsible for the Accepted Liabilities.
3.3 EXCLUDED LIABILITIES.
Lincare shall not assume, nor be responsible for, any Excluded
Liabilities. All Excluded Liabilities shall be retained by, and shall be
the sole responsibility of, Company. Without limiting the generality of the
foregoing or the definition of Excluded Liabilities contained in Section
1.1(e) hereof, the Excluded Liabilities shall include, but shall not be
limited to, the following: (a) the obligation to pay all invoices which are
dated on or before the Closing Date or which relate to goods or services
ordered, consumed or used on or before the Closing Date; (b) the
liabilities and obligations under all contracts, agreements and leases
designated as Excluded Assets on Schedules 1, 2 or 3 hereof; and (c) the
obligation, in accordance with the provisions of Section 4.5(b)(iii)
hereof, to pay-off in full those certain leases and rental agreements
expressly designated on Schedules 1, 2 and 3 hereof as subject to this
Section 3.3(c), and to deliver to Lincare title to all such leased or
rented Assets free and clear of any Encumbrances. (Company's obligations
under this Section 3.3(c) are referred to herein as the "Contract Asset
Purchase Requirements".) The Contract Asset Purchase Requirements shall
include, but shall not be limited to, the payment of any purchase options
or other similar payments relating to any of such Assets.
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF COMPANY
Company represents, warrants and covenants as follows:
4.1 ORGANIZATION, STANDING AND QUALIFICATION OF COMPANY.
Company is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware, and has all necessary
corporate powers, governmental qualifications and authorizations to own its
assets and to operate its business in each jurisdiction in which such
assets are now owned and such business is now operated by it. Company has
furnished to Lincare true and complete copies of its Certificate of
Incorporation, as amended to date, and Certificate of Good Standing, each
certified by the Secretary of the State of Delaware not earlier than thirty
(30) days prior to the date hereof, and true and complete copies of
Company's By-Laws, as amended to date, certified by the Secretary of
Company.
4.2 AFFILIATES.
Company does not own or control, directly or indirectly, in whole or
in part, any other corporation, partnership, association, or organization,
or any interest therein, which is engaged in the same business as Company,
except for Company's ownership and operation of its Denver, Colorado HME
Division business operations which are identified as Excluded Assets
hereunder.
4.3 FINANCIAL STATEMENTS.
(a) Company has delivered to Lincare copies of the following
financial statements for the Business:
(i) Consolidated Balance Sheets and Income Statements,
each as at the end of Company's fiscal years ending December 31, 1997 and
December 31, 1998; and
(ii) HME Income Statements for the Company's interim
period commencing January 1, 1999 and ending April 30, 1999.
(b) All of the financial statements referenced in Section 4.4(a)
above are hereinafter referred to collectively as the "Financial
Statements" and are attached hereto as Exhibit A. The Financial Statements
are complete, true and correct, and have been prepared on a basis
consistent in all material respects with that of the preceding year or
period. The Financial Statements present fairly the financial condition of
the Business as at the dates stated and the operation of the Company for
the periods stated. The Company has no knowledge of any facts which could
give rise to any material liability or obligation of the Business
whatsoever, liquidated or unliquidated, actual or contingent, criminal or
civil, whether or not covered by insurance, for which adequate provision
has not been made in the Financial Statements. Company represents and
warrants that there has been no material adverse change in the assets,
liabilities, financial performance or capitalization of the Business since
December 31, 1998.
4.4 TAXES.
All tax returns required to be filed by or on behalf of Company in
respect of the Business on or before the date hereof by any applicable law
have been filed within the times and in the manner prescribed by law,
including, but not limited to, returns covering sales and use taxes,
property taxes, franchise taxes, employment taxes (including payroll and
social security payments) and income taxes (including all federal, state,
local and foreign taxes). All liabilities for taxes, assessments and other
charges upon Company in respect of the Business or any of the property,
assets or income of Company in respect of the Business which are owing to
the government of any nation or state, or any local government within such
nations or states, and which were due and payable on or before the date
hereof, have been duly paid and satisfied on or before all their respective
due dates. With respect to liabilities for any such taxes, assessments or
other charges which are not yet due and payable, Company represents,
warrants and covenants, that it will pay all such amounts when due. Any
such tax liability (or any such liability of Company relating to the
operation of the Business or operation of the Assets transferred hereunder)
for federal, state or local taxes (including, without limitation, interest
and penalties) shall be the sole responsibility of Company. If the
Internal Revenue Service seeks to collect any such liability from Lincare
or from any other member of Lincare's affiliated group, Company will
indemnify and hold harmless any such party for the entire amount of such
liability pursuant to the provisions of Article 7 hereof.
4.5 SCHEDULES.
Company has delivered to Lincare the following Schedules, which are
true, complete and accurate:
(a) REAL ESTATE. Schedule 1 is a complete list of all land,
warehouses, office buildings, stores and other buildings and real property
owned, rented, leased, used, occupied or otherwise possessed by the Company
in respect of the Business. As to each property rented, leased, used,
occupied or otherwise possessed by the Company in connection with the
Business, Schedule 1 lists the location of the property; the name and
address of the lessor; the expiration date of such lease; and the monthly
rent payable under the lease. Each such property rented or leased is held
under a valid and enforceable lease, binding upon each of the parties
thereto, and each such lease is in full force and effect in accordance with
its terms and there are no existing defaults or events of default under any
such lease. Company has not given or received notice of any claimed default
or termination with respect to any such lease. Schedule 1 identifies all
material violations of any applicable law, statute, ordinance, code, rule,
regulation or standard relating to any building rented, leased, used,
occupied or otherwise possessed by the Company or the operations of the
Company conducted therein. The facilities listed in Schedule 1 have been
regularly and appropriately maintained in the normal course of business and
the fixtures, mechanical systems (including electrical, plumbing, heating,
ventilation and air conditioning) and roof and structural systems of the
facilities shown on Schedule 1 are in good working condition and in a good
state of maintenance and repair.
(b) AGREEMENTS AND CONTRACTS.
(i) Schedule 2 is a complete list of all contracts and
agreements (including, without limitation, agreements relating to the
purchase, sale, lease or rental of equipment, materials, products, supplies
and services; preferred provider agreements, health maintenance
organization agreements or any other managed care contracts or agreements;
service contracts; employment and consulting agreements; covenants not to
compete; distributorship agreements; leases of personal property; licenses
of intellectual property rights; security agreements; and loan agreements)
which relate, in whole or part, to the Business or the Assets. Schedule 2
specifies the type of agreement and the names of the parties to such
agreements. The agreements listed in Schedule 2 are valid, binding and
enforceable upon the parties thereto. Except as indicated in Schedule 2,
all such contracts and agreements are in full force and effect in
accordance with their terms and there are no existing defaults or events of
default under any such contract or agreement. Company has not given or
received notice of any claimed default or termination with respect to any
such contract or agreement. Except as disclosed on Schedule 2, neither this
Agreement nor consummation of the transactions contemplated hereby shall
result in a default under or breach of, or require the consent or approval
of any party to any agreement listed on Schedule 2 with respect to the
transfer and assignment of such contract or agreement to Lincare hereunder.
(ii) Schedules 1, 2 and 3 list each of the contracts,
agreements and leases which are included in the Assets, except those
contracts, agreements and leases which are designated on such schedules as
Excluded Assets. It is understood and agreed between the parties that
Lincare shall assume the liabilities, duties and obligations of Company
under the contracts, agreements and leases listed on Schedules 1, 2 or 3
which: (A) are not Excluded Assets; and (B) which liabilities, duties and
obligations arise and pertain to periods commencing on or after the Closing
Date. Company shall remain solely liable for all liabilities, duties and
obligations under all contracts, agreements and leases which: (X) are
Excluded Assets; or (Y) which are not Excluded Assets but which
liabilities, duties and obligations arise or pertain to periods prior to
the Closing Date.
(iii) Notwithstanding anything to the contrary contained in
this Agreement, Lincare shall obtain title to all assets covered by those
certain contracts, agreements and leases identified on Schedules 1, 2 or 3
as Excluded Assets to which the Contract Asset Purchase Requirements
pertain, and Company shall have completed the Contract Asset Purchase
Requirements set forth in Section 3.3 of this Agreement with respect to the
assets covered by such contracts, agreements and leases.
(iv) The parties acknowledge that Company's agreement with
Home Health Corporation of America ("HHCA") as identified on Schedule 2 is
subject to the final approval of the United States Bankruptcy Court for the
District of Delaware having jurisdiction over the Chapter 11 Voluntary
Petition for Reorganization filed by HHCA. Lincare shall assume Company's
obligations under such agreement pursuant to the provisions of Section
4.5(b)(ii), subject to the limitations specifically set forth in Section
1.1(d)(iii) with respect thereto.
(c) PERSONAL PROPERTY. Schedule 3 (including each of the
subparts referenced below) lists by type and quantity the tangible personal
property owned, rented, leased, used or otherwise possessed by the Business
and pertaining to the asset classes described below:
(i) Schedule 3A lists, in summary form, the oxygen
equipment, respiratory therapy equipment and other items of durable medical
equipment and other tangible personal property owned, leased, rented, used
or otherwise possessed by the Business (including, but not limited to, all
of such items currently provided to customers in their homes or alternative
site care facilities); and
(ii) Schedule 3B lists, in summary form, the vehicles
owned, leased, rented, used or otherwise possessed by the Business that are
included among the Assets to be acquired by Lincare.
Except as disclosed on Schedule 3, Company owns and has good and marketable
title to all of the tangible personal property included in the Assets
(whether or not any such Asset is included within the asset classes
described in Sections 4.5(c)(i)-(ii) above), free and clear of any
restrictions or conditions to transfer or assignment and free and clear of
all Encumbrances. If any property included in the Assets and owned by
Company is subject to an Encumbrance, Schedule 3 identifies as to each such
item of personal property the nature of such Encumbrance, the holder
thereof, and the amount of such Encumbrance. With regard to each item of
personal property included in the Assets and rented or leased by Company,
Schedule 3 identifies the party from whom such property is rented or
leased, the date and term of the lease or rental agreement, the amount of
the monthly rent payable and any renewal and purchase options. Except as
set forth in Schedule 3, no personal property included in the Assets
(whether or not any such Asset is included within the asset classes
described in Sections 4.5(c)(i)-(ii) above) and owned, rented, leased, used
or otherwise possessed by the Company is subject to any Encumbrance. Each
item of personal property included in the Assets has been regularly and
appropriately maintained and repaired in the normal course of business and
substantially all of such items are in good working condition and in a good
state of maintenance and repair as of the Closing Date.
(d) ACCOUNTS RECEIVABLE. Schedule 4 contains a summary of the
accounts receivable of or pertaining to the Business, including an aging of
such accounts receivable in thirty (30) day increments for one hundred
twenty days (120) days from the date of original invoice, and the total
amount of all accounts receivable. Each Account Receivable of the Business:
(i) arose from valid sales or rentals in the ordinary course of business;
(ii) relates to equipment or products provided to customers covered under
the Medicare, Medicaid or other third party public or private insurance
program, or were provided on a direct bill basis, each of which customers
were qualified under such programs to receive such products and services;
(iii) relates to billings by or on behalf of the Business which were
prepared and submitted with all the complete and correct forms, documents,
test results and other information necessary to receive payment with
respect to each such Account Receivable and which billings were prepared
and submitted in conformity with all applicable laws, rules, regulations
codes and guidelines of federal, state and local health care programs and
in conformity with the requirements of each third party payor; and (iv) has
been diligently pursued for payment in accordance with the requirements of
the respective payors. Except as disclosed on Schedule 4 hereto, the
Business has not received nor has it applied for any cash advances from any
Medicare, Medicaid or third party public or private insurance program or
carrier, whether or not any such cash advance has been repaid to or
recouped by such insurance program or carrier.
(e) CUSTOMERS. Schedule 5 lists each active customer of the
Business. For each such customer, Schedule 5 lists the customer's name and
address; the customer's account number; and the equipment, products and
services currently supplied to such customer. Each customer included on
Schedule 5 has been duly qualified under the Medicare, Medicaid or other
third party public or private insurance program for reimbursement for
services rendered by Company, or is being provided services on a direct
bill basis to customers who otherwise have the financial capability to pay
for such services.
(f) EMPLOYMENT MATTERS. Schedule 6 sets forth a list of:
(i) the name of each of the employees of Company who work
for or who provide services to the Business, and the current annual rate of
compensation for each such person;
(ii) all pension, retirement, profit-sharing, savings,
bonus, deferred compensation, incentive compensation, hospitalization,
medical, life and disability insurance, vacation, termination, and other
similar plans in effect which provide benefits to present and past
directors, officers and employees of Company who work for or who provide
services to the Business;
(iii) all claims and litigation asserted by or against
Company (or any director, shareholder, officer or employee of Company in
such representative capacity) in respect of the Business arising from
transactions and occurrences after December 31, 1993, or any claim or
litigation, whenever arising, which is still pending as of the date hereof,
which claims any right to workers compensation benefits or alleges any
claim relating to race discrimination, age discrimination, harassment, sex
discrimination, sexual harassment, or wrongful termination. As to each
such claim or litigation, Schedule 6 lists the identity of the claimant; a
brief description of the matter; and the outcome or status of the matter;
(iv) all collective bargaining agreements or other
contracts with labor unions to which Company is a party; and
(v) all employment agreements, consulting agreements,
independent contractor agreements, and covenants not to compete of the
Business (including, but not limited to, covenants not to compete with any
predecessors in interest of Company or the Business).
Company is in compliance in all material respects with all federal,
state and local laws, statutes, ordinances, rules, regulations, codes and
orders relating to conditions of employment of the Business, and Company
does not know of or have any reasonable grounds to anticipate, any labor
dispute. Company has not incurred any liability for any arrearage of wages
or other payments in respect of employment and Company has made all
contributions to employee benefit plans of the Business required by such
plans to be made on or before the date hereof. All liabilities and expenses
with respect to compensation or benefits applicable to all directors,
shareholders, officers and employees of Company under any employee benefit
plan shall be the sole responsibility of Company.
(g) CLAIMS, INVESTIGATIONS AND LITIGATION. Schedule 7 lists all
claims and litigation asserted by or against Company in respect of the
Business arising from transactions and occurrences after December 31, 1993,
or any such claim or litigation, whenever arising, which was filed and is
still pending as of the date hereof alleging personal injury, property
damage or economic loss and involving Company in respect of the Business
(or any director, shareholder, officer or employee of Company in such
representative capacity) or any property of, or product or service sold,
rented, leased or provided by Company in respect of the Business, and any
litigation, or to the best of Company's knowledge, any investigation
(including government investigations or audits) commenced after December
31, 1993, or whenever commenced, if still pending. Schedule 7 also lists
each judgment, order, writ, injunction and decree of any federal, state or
local court or governmental authority to which Company is a party or by
which it is bound or which relates to any of the ownership interests in the
Business or the Assets. As to each such claim, investigation, audit or
litigation, Schedule 7 lists the type of proceeding; the identity of the
claimant or investigating agency; a brief description of the matter; the
damages claimed or relief sought; and the outcome or status of the matter.
Except as set forth in Schedule 7, there are no claims, lawsuits,
arbitrations, government proceedings, investigations or audits pending
relating to the Business to which Company or any of its directors,
shareholders, officers or employees is a party (as plaintiff, defendant or
otherwise) or which relate to any of the ownership interests in the
Business or the Assets. To the best of Company's knowledge, there are no
grounds for the filing or receipt of any other claim or the commencement of
any other lawsuit, arbitration or proceeding by or against, or
investigation of, Company in respect of the Business, or involving the
Assets or equity interests in, the Business, except as set forth in
Schedule 7.
(h) HEALTH CARE COMPLIANCE. Schedule 8 lists all claims,
statements and other matters (including, but not limited to, all
correspondence or communications with governmental agencies, intermediaries
or carriers) concerning or relating to any federal or state government
funded health care program that involves, relates to, or alleges: (A) any
violation or irregularity with respect to any activity, practice or policy
of Company in respect of the Business; or (B) any violation or irregularity
with respect to any claim for payment or reimbursement made by Company in
respect of the Business, or any payment or reimbursement paid to Company in
respect of the Business. Except as set forth on Schedule 8, there are no
violations or irregularities nor are there any reasonable grounds to
anticipate the commencement of any investigation or inquiry, or the
assertion of any claim or demand by any such government agency,
intermediary or carrier against Company with respect to any of the
activities, practices, policies or claims of Company in respect of the
Business, or any payments or reimbursements received by Company in respect
of the Business. The Company is not currently subject to any outstanding
audit by any such government agency, intermediary or carrier, and to the
best of Company's knowledge, there are no reasonable grounds to anticipate
any such audit of the Business in the foreseeable future.
(i) LICENSES AND PERMITS. Schedule 9 lists all governmental
licenses, permits and authorizations which are held or used by Company in
respect of the Business. With respect to each such license, permit or
authorization, Schedule 9 contains a brief description of the license,
permit or authorization; the identity of the issuing agency or authority;
the license or permit number; and the expiration date of each such license,
permit or authorization. Such licenses, permits and authorizations are the
only governmental licenses, permits and authorizations currently required
by Company for the operation of the Business and all such licenses, permits
and authorizations are in effect as of the date hereof. Company has
complied in all material respects with all conditions or requirements
imposed by such licenses, permits and authorizations. Company has not
received any notice of, nor, to the best of the Company's knowledge, is
there any reason to believe, that any appropriate authority intends to
cancel or terminate any of such licenses, permits or authorizations or that
valid grounds for such cancellation or termination currently exist.
(j) ENVIRONMENTAL MATTERS. Schedule 10 lists, for the entire
period of operation of Company any and all claims, suits, actions or
proceedings (including government investigations and audits) relating to
the release, discharge or emission of any pollutants or contaminants, or to
the generation, treatment, storage or disposal of any wastes, in connection
with Company's operation or ownership of the Business or the Assets. With
respect to each such pending or prior matter, Schedule 10 lists the date of
the claim, suit, action or proceeding (including governmental
investigations and audits); the claimant or investigating agency; the
nature and a brief description of the matter; the damages claimed or relief
sought; and the status, outcome or disposition of the matter. Except as set
forth in Schedule 10, there are no claims, suits, actions, or proceedings
(including governmental investigations and audits), asserted or threatened,
relating to environmental matters of the types specified in this Section
4.5(j) or otherwise, to which Company, in respect of the Business, is a
party; nor does Company know or have any reasonable grounds to know of any
activity of Company or potential liability of Company in connection with
Company's operation or ownership of the Business or the Assets involving or
relating to the release, discharge or emission of any pollutants or
contaminants, or to the generation, treatment, storage or disposal of any
wastes, or otherwise relating to the protection of the environment.
(k) DIRECTORS AND OFFICERS. Schedule 11 lists the officers and
directors of Company in office as of the date hereof. Schedule 11 also
lists all contracts, agreements, commitments, leases, instruments, debts,
or obligations affecting the Business or the Assets: (i) between Company
and any of its directors, officers, or shareholders; and (ii) among or
between any directors, officers, or shareholders of Company. With respect
to each such contract, agreement, commitment, lease, instrument, debt, or
obligation, Schedule 11 indicates the parties; their relationship to
Company; and a general description of the subject matter thereof.
(l) CHANGED CONDITIONS. Except as listed in Schedule 12, since
December 31, 1998, the business of he Business has been conducted in
substantially the same manner as theretofore and there has not been any:
(i) transaction by Company relating to the Business
except in the ordinary course of business as conducted on that date;
(ii) material change in the condition (financial or
otherwise) of the liabilities, assets, equity, properties, business, or
prospects of the Business;
(iii) labor dispute, or other similar event or condition of
any character, materially or adversely affecting the financial condition,
business, assets, or prospects of the Business;
(iv) change in business or accounting methods or practices
(including, without limitation, any change in depreciation or amortization
policies or rates) by Company in respect of the Business;
(v) revaluation by Company of any of the assets of the
Business;
(vi) lease, sale or transfer of any tangible or intangible
asset of Company in respect of the Business, except in the ordinary course
of business and for fair market value;
(vii) entry into, or amendment or termination of, any
contract, agreement, or license, except in the ordinary course of business
and upon fair market value, terms and conditions;
(viii) waiver or release of any right or claim of Company in
respect of the Business, except in the ordinary course of business and upon
fair market value, terms and conditions;
(ix) other event or condition of any character that has,
or might reasonably have, a material and adverse effect on the financial
condition, business, assets, or prospects of the Business;
(x) amendment of Company's Certificate of Incorporation
or By-Laws; or
(xi) agreement by Company to do any of the things
described in the preceding clauses (i) through (x).
4.6 TITLE TO ASSETS.
Company has good and marketable title to, or holds by valid and
enforceable agreement of lease or license, all of the tangible assets
owned, leased, rented, licensed, used or otherwise possessed by it in
connection with the Business, and such assets are free and clear of any
restrictions or conditions to transfer or assignment and are free and clear
of all Encumbrances; provided, however, the parties acknowledge that as of
the Closing Date, Company shall not have good and marketable title to the
assets subject of the HHCA agreement listed on Schedule 2 hereto.
4.7 NO VIOLATION.
Neither this Agreement nor the consummation of the transactions
contemplated hereby violate or will violate in any material respect any
statute, law, regulation, rule, ordinance, code, standard, order, writ,
judgment, injunction, decree, determination or award, or conflict with or
constitute a default under Company's Certificate of Incorporation or By-
Laws or any indenture, mortgage, lease, lien, instrument or other agreement
by which Company is bound, nor will it result in an event which, whether
immediately or upon the giving of notice or lapse of time or both, will
permit the acceleration of the maturity date of any obligation under any
such indenture, mortgage, lease, lien, instrument or other agreement or the
creation of any lien or encumbrance on any property or asset of Company,
nor will it enable any party to any agreement to which Company is a party
to exercise a right to terminate or otherwise modify the terms thereof.
4.8 COMPLIANCE WITH LAW.
Company has complied with, and is not in violation of, in any material
respect any federal, state, or local statutes, laws, ordinances, rules,
regulations, codes or standards which affect the operation of the Business
(including, but not limited to, compliance with all statutes, laws,
ordinances, rules, regulations relating to any federal or state government
funded health care program, including, but not limited to, the provisions
of the federal fraud and abuse statutes, laws, rules and regulations).
Company has not received any notice of any claimed violation of any
federal, state or local statute, law, ordinance, rule, regulation, code,
standard or order by the Business, nor has any such violation occurred.
4.9 LEGAL POWER AND AUTHORITY TO ENTER TRANSACTION.
Company has the full right, power, legal capacity, and authority to
enter into and deliver this Agreement and to perform their respective
obligations hereunder and the transactions contemplated hereby. The
execution, delivery and performance of this Agreement and the transactions
contemplated hereby has been duly authorized by Company, and a copy of such
resolutions so authorizing the execution, delivery and performance of this
Agreement, certified by Secretary of Company has been delivered to Lincare.
This Agreement constitutes the valid and binding obligation of Company and
is enforceable in accordance with its terms. Except as stated above, no
approvals or consents of any persons or entities are required for Company
to execute and deliver this Agreement to perform their respective
obligations hereunder and the transactions contemplated hereby.
4.10 BOOKS AND RECORDS.
The books and records of the Company are complete, true and correct in
all material respects and fairly reflect the conduct of the Business.
4.11 DISCLOSURE.
No representation or warranty by Company contained in this Agreement,
and no writing, certificate, schedule, list, report, instrument, or other
document furnished to Lincare pursuant hereto or in connection with the
transactions contemplated hereby, contains any untrue statement of material
fact, or omits to state a material fact necessary in order to make the
statements and information contained therein not misleading, or necessary
in order to provide a prospective purchaser of the Assets and Business with
full and proper material information relating to the Company and Company's
affairs and the Business' prospects of future business.
4.12 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations, warranties, covenants and agreements made by
Company in or pursuant to this Agreement or in any writing, certificate,
schedule, exhibit, statement, list, report, instrument, or other document
furnished or delivered to Lincare in connection with, or in contemplation
of, this Agreement, or the purchase and sale of the Assets shall be true on
and as of the Closing Date with the same effect as if made on and as of
Closing Date, and shall survive the execution, delivery and performance of
this Agreement and the Closing.
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF LINCARE
Lincare represents, warrants and covenants as follows:
5.1 ORGANIZATION, STANDING AND QUALIFICATION.
Lincare is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all necessary
corporate powers, governmental qualifications and authorizations necessary
to own its assets and to operate its business in each jurisdiction in which
such assets are now owned and such business is now operated by it.
5.2 LEGAL POWER AND AUTHORITY TO ENTER TRANSACTION.
Lincare has the full right, power, legal capacity, and authority to
enter into and deliver this Agreement and to perform its obligations
hereunder and the transactions contemplated hereby. The execution, delivery
and performance of this Agreement and the transactions contemplated hereby
have been duly authorized by Lincare's Board of Directors, a copy of such
resolutions so authorizing the execution, delivery and performance of this
Agreement, certified by the Secretary of Lincare, has been delivered to
Company. This Agreement constitutes the valid and binding obligation of
Lincare and is enforceable in accordance with its terms.
5.3 SURVIVAL of Representations and Warranties.
All representations and warranties made by Lincare in or pursuant to
this Agreement shall survive the execution, delivery and performance of
this Agreement and the Closing.
ARTICLE 6 - CLOSING
6.1 DATE, TIME AND PLACE.
The closing under this Agreement (herein referred to as the "Closing")
shall take place at the offices of Company at 8150 North Central
Expressway, Suite M2000, Dallas, Texas 75206, on the date first set forth
above (said date shall herein be referred to as the "Closing Date"). All
transactions at the Closing shall be deemed to have taken place
simultaneously and no transaction shall be deemed to have been completed
and no document, instrument or certificate shall be deemed to have been
delivered until all transactions are completed and all documents delivered.
6.2 OBLIGATIONS OF COMPANY.
At the Closing, Company has delivered to Lincare the following:
(a) lease assignments, assumption agreements and estoppel
certificates, in form and substance reasonably satisfactory to Lincare,
sufficient to transfer to Lincare all of Company's rights with respect to
the premises leased or rented by Company at the locations listed on
Schedule 1 hereto which are not identified as Excluded Assets;
(b) a general bill of sale, in form and substance reasonably
satisfactory to Lincare, sufficient to convey to Lincare good and
marketable title to the Assets;
(c) a certificate of title and a bill of sale for each
automobile, truck or other vehicle included in the Assets, in the form
required by the applicable statutes, laws, rules and regulations of the
state of registration;
(d) an incumbency certificate, dated as of the Closing Date and
executed by the Secretary of Company certifying the identity and signature
of the officers executing any documents required by or relating to this
Agreement;
(e) a copy of all corporate resolutions necessary to authorize
the execution, delivery and performance of this Agreement by Company and
copies of Company's Certificate of Incorporation, as amended, and
Certificate of Good Standing, each certified by the Secretary of the State
of Delaware, and the By-Laws of Company, as amended, certified by the
Secretary of Company;
(f) any other consents, waivers, instruments or documents as may
be reasonably requested by Lincare; and
(g) Uniform Commercial Code termination statements, lease
termination statements, releases and any other documents necessary to
evidence that each of the Assets is being sold, conveyed, transferred,
assigned and delivered to Lincare free and clear of any Encumbrances.
6.3 OBLIGATIONS OF LINCARE.
At the Closing, Lincare has delivered to Company the following:
(a) payment of all amounts required to be paid by Lincare to
Company at the Closing pursuant to the provisions of Section 3.1 hereof;
(b) an incumbency certificate, dated as of the Closing Date and
executed by the Secretary of Lincare, certifying the identity and signature
of the officers of Lincare executing any documents required by or relating
to this Agreement; and
(c) a copy of all corporate resolutions of Lincare necessary to
authorize the execution, delivery and performance of this Agreement by
Lincare, certified by the Secretary of Lincare.
6.4 COOPERATION AFTER THE CLOSING.
(a) Promptly after the Closing, Company will put Lincare into
full possession and enjoyment of the Assets.
(b) Lincare and Company will, at any time, and from time to
time, after the Closing Date, execute and deliver such further instruments
of conveyance and transfer and take such additional action as may be
reasonably necessary to effect, consummate, confirm or evidence the
transactions contemplated by this Agreement.
(c) Company shall be responsible for all income, franchise,
sales, use, property, employment (including social security payments),
payroll or other tax liabilities, including, without limitation, any
interest and penalties thereon, which are attributable to operation or
ownership of Company or the Assets or the operation of the Business for
periods prior to the Closing Date. Lincare shall be responsible for any
such taxes attributable to its ownership of the Assets or the operation of
the Business for periods following the Closing Date. Any such taxes
requiring apportionment (because Company has paid such taxes attributable
to a period subsequent to the Closing Date or Lincare will pay such taxes
attributable to a period prior to the Closing Date) shall be pro-rated on
the basis of the fiscal year covered by such taxes, or otherwise on a
mutually acceptable equitable basis. If Company shall have paid any taxes
for which Lincare is responsible as aforesaid, or if Lincare will pay taxes
for which Company is responsible as aforesaid, appropriate adjustments will
be made by the parties at or as promptly as practicable after the Closing
Date.
(d) Company agrees on behalf of itself and its parents,
subsidiaries and affiliates that, from and after the Closing Date, they
shall cease and desist from all use of the names "HealthCor Oxygen &
Medical Equipment", "I CareNetwork", "McDuffie's Rentals, Inc.," and
"Charlie's Drug and Medical", and any other trademarks, trade names or
service marks included in the Assets, and any name containing any
variations, combinations or derivatives thereof, or any forms or acronyms
of the same.
(e) It is acknowledged that Lincare has waived compliance by
Company with the provisions of any bulk sales or transfer law of any state
that is or may be applicable to the transactions contemplated hereby and
Company agrees to indemnify Lincare with respect to such waiver and non-
compliance in accordance with the provisions of Article 7 hereof.
(f) Company shall use its best efforts to obtain all consents of
third parties and to make all filings with and give all notices to third
parties and to do any and all other acts and things which may be necessary
or reasonably required in order to transfer to Lincare all of the Assets,
free and clear of any Encumbrances, and to effect fully the transactions
contemplated by this Agreement. In case any Assets or rights have not at
the Closing been transferred effectively, or are subject to any
Encumbrance, Company shall use its best efforts to cooperate with Lincare
in any lawful arrangement to provide that Lincare shall receive the benefit
of Company's interest in any of such Assets and rights.
(g) Company agrees that, after the Closing, it shall provide
reasonable cooperation and assistance to Lincare, with respect to any
matters, disputes, suits or claims by or against any person not a party to
this Agreement.
(h) If, after the Closing Date, Lincare desires to have an audit
performed of any or all of the Financial Statements, Company agrees to
cooperate with Lincare and to provide Lincare with all reasonable
assistance required to prepare such audited financial statements,
including, without limitation, the following: (i) providing Lincare and its
representatives with all necessary information, data, documents and records
in its possession relating to the Business for the time periods covered by
the Financial Statements; and (ii) delivery of customary representation
letters by Company, and Company's legal counsel, to Lincare or its
auditors. If requested by Lincare, Company shall use its best efforts to
cause the Company's accountants, auditors and legal counsel to cooperate
with and to assist Lincare and its representatives in the preparation of
any such audited financial statements, it being expressly agreed and
understood that Lincare shall be solely responsible for the fees and
expenses of the Company's accountants, auditors and legal counsel in
rendering such assistance and cooperation to Lincare and its
representatives.
(i) It is understood and agreed by the parties that on the
Closing Date, Company shall cause to be delivered to Lincare title to all
high pressure cylinders owned, leased, rented, used or otherwise possessed
by Company in respect of the Business, free and clear of all Encumbrances
(including, but not limited to, any lease or rental obligations), except
for those high pressure cylinders specifically identified as being leased
or rented by Company from Med-Ox Specialties, Inc. pursuant to that certain
agreement listed on Schedule 2 hereto. Promptly after the Closing, Lincare
and Company will cooperate to conduct an audit of the high pressure
cylinders leased or rented by Company in respect of the Business, if any,
immediately prior to the Closing Date. To the extent that the number of
cylinders located is less than the total number of cylinders leased or
rented by Company in respect of the Business, then Company shall also be
responsible for any rented or leased cylinder shortfall, including, but not
limited to, settling and paying for any such cylinder shortfall with the
suppliers thereof promptly after the completion of such audit. To the
extent that there is a shortfall in the number of cylinders rented or
leased by Company in respect of the Business, such shortfall shall not be
setoff against any cylinders owned by Company.
(j) If it is impracticable for Company to provide to Lincare at
the Closing all of the Uniform Commercial Code termination statements,
lease termination statements, releases and other documents necessary to
evidence delivery to Lincare of title to the Assets free and clear of any
Encumbrances, Company shall deliver all such statements, releases and
documents to Lincare no later than ten (10) business days after the
Closing.
ARTICLE 7 - INDEMNIFICATION
7.1 INDEMNIFICATION.
(a) Company shall defend, indemnify and hold Lincare harmless
from, against, and in respect of, any and all claims, demands, lawsuits,
proceedings, losses, obligations, assessments, fines, penalties,
administrative or judicial orders, costs, expenses, liabilities and
damages, including interest, penalties and reasonable attorneys' fees
Lincare may incur, which arise, result from or relate to: (i) Company's
breach of, or failure to perform, any of its representations, warranties,
covenants, obligations, liabilities, commitments or agreements under this
Agreement (including, without limitation, any misrepresentation in, or
omission from, any schedule, exhibit, statement, certificate, writing,
list, instrument or report or other document furnished or to be furnished
pursuant to this Agreement); (ii) Lincare's being required to assume or
discharge any of the Excluded Liabilities; or (iii) Lincare's being
required to assume or discharge by operation of law any debt, liability or
obligation of Company, including, but not limited to, any liability or
obligation arising under any federal, state or local bulk sales, bulk
transfer or fraudulent conveyance law.
(b) Lincare shall defend, indemnify and hold Company harmless
from, against, and in respect of, any and all claims, demands, lawsuits,
proceedings, losses, obligations, assessments, fines, penalties,
administrative or judicial orders, costs, expenses, liabilities and
damages, including interest, penalties and reasonable attorneys' fees
Company may incur, which arise, result from or relate to: (i) Lincare's
breach of, or its failure to perform, any of its representations,
warranties, covenants, obligations, liabilities, commitments or agreements
under this Agreement (including, without limitation, any misrepresentation
in, or omission from, any statement, certificate, writing, list, instrument
or report or other document furnished or to be furnished pursuant to this
Agreement); or (ii) Company being required to assume or discharge any of
the Accepted Liabilities.
7.2 PROCEDURES.
With respect to any claim, demand, lawsuit, action, proceeding, or
assessment (hereinafter referred to as a "Claim") brought by a third party
which may give rise to indemnification under this Agreement from an
indemnitor ("Indemnitor") to an indemnified party ("Indemnified Party"),
the following procedure shall be followed:
(a) Promptly after the assertion of any Claim by a third party,
the Indemnified Party shall notify the Indemnitor in writing of such Claim.
The notice shall specify the facts then known to the Indemnified Party
relating to the Claim and the amount or estimated amount of the liability
claimed by such third party. Promptly after receipt of the written notice,
the Indemnitor shall advise the Indemnified Party whether the Indemnitor
intends to contest such Claim.
(b) The Indemnitor shall have the absolute right, in its sole
discretion and at its sole expense, to elect to defend, contest, settle or
otherwise protect against any Claim or action which may give rise to a
Claim with legal counsel of its own selection; provided, however, that the
Indemnitor shall not agree or consent to any judgment or settlement that
imposes injunctive or equitable relief against the Indemnified Party
without the prior written consent of the Indemnified Party. The
Indemnified Party shall have the right, but not the obligation, to
participate, at its own expense, in the defense thereof through counsel of
its own choice and shall have the right, but not the obligation, to assert
any and all crossclaims and counterclaims it may have. Each party shall,
and shall cause its affiliates to, at all times cooperate in all reasonable
ways with, make its relevant files and records available for inspection and
copying by, and make its employees available or otherwise render reasonable
assistance to, the other party in its defense of any Claim. In the event
that the Indemnified Party shall, without the prior written consent of the
Indemnitor, make any settlement with respect to any Claim, the Indemnitor
shall not be bound to such settlement and shall not be bound to indemnify
for any costs, damages, expenses or other liabilities resulting from such
Claim. In the event the Indemnitor fails timely to defend or contest any
Claim, the Indemnified Party shall have the right, but not the obligation,
to defend, contest, assert crossclaims or counterclaims to otherwise
protect against the same and may make any compromise or settlement thereof
and recover and be indemnified for the entire cost thereof from the
Indemnitor including, without limitation, reasonable legal expenses,
disbursements and all amounts paid as a result of such matter.
(c) It is understood by the parties hereto that in the event
Company breaches, or fails to perform, any of its representations,
warranties, covenants, obligations, liabilities, commitments or agreements
under this Agreement, including, without limitation, any of its
indemnification obligations pursuant to this Article 7, then Lincare shall
have the right, in its sole discretion, to offset from the Purchase Price
payment referenced in Section 3.1(a)(ii) hereof any amounts due Lincare as
a result of any such breach or failure to perform by Company.
7.3 CUMULATIVE REMEDIES.
In no event shall the provisions of this Article 7 restrict or impair
in any respect the rights or remedies otherwise available to the parties
hereto at law or in equity, which rights and remedies shall be cumulative
and in addition to any other available remedies.
ARTICLE 8 - CONFIDENTIALITY
8.1 PROPRIETARY AND CONFIDENTIAL INFORMATION.
Company agrees on behalf of itself and each of its parents,
subsidiaries and affiliates, that from and after the Closing, no such
entity shall, directly or indirectly, use or disclose to any third party
any of the proprietary or confidential information of Company, except when,
after, and only to the extent that: (a) such proprietary or confidential
information is or becomes generally available to the public through no
fault of Company or any of its parents, subsidiaries or affiliates; (b)
such information is required by Company in connection with any tax returns
heretofore or hereafter filed; or (c) disclosure of such information is
required by court order or applicable law. As used herein, the term
"proprietary and confidential information" of Company shall include all
information of or relating to the Assets, and the Business (including, but
not limited to, present or prospective market, sales, product, customer and
referral source information; prices and pricing structure; contractual
arrangements; operating information, policies, procedures and practices;
financial information; product and process knowledge; cost and supplier
information; personnel data; and any strategy or plans related to any of
the foregoing) which has not been generally available or disclosed to the
public by Lincare.
8.2 NO SOLICITATION.
(a) From and after the Closing, Company shall not:
(i) directly or indirectly, hire, offer to hire, or
entice away, or in any other manner persuade or attempt to persuade, any
officer, employee or agent of Lincare (including, but not limited to, any
former officer, employee or agent of the Company who worked for or provided
services to the Business), or in any other manner persuade or attempt to
persuade, any officer, employee or agent of Lincare (including, but not
limited to, any former officer, employee or agent of the Company who worked
for or provided services to the Business) to discontinue his or her
relationship with Lincare. It is understood and agreed that the
prohibitions contained in this Section 8.2(a)(i) shall apply to all current
and future officers, employees and agents of Lincare (including, but not
limited to, any former officer, employee or agent of the Company who worked
for or provided services to the Business), whether or not any such person
is then currently an officer, employee or agent of Lincare or whether any
such prohibited activity is in connection with employment, an offer of
employment or other action within or outside the Territory; or
(ii) directly or indirectly solicit, divert or take away,
or attempt to solicit, divert or take away any business or customers the
Business had enjoyed or solicited prior to the date hereof or which Lincare
may enjoy or solicit in the Territory after the date hereof.
(b) It is expressly understood and agreed by the parties hereto
that it shall be a breach hereof for Company to assist in any way any
business associate, or any other person, firm, corporation, partnership,
joint venture, association, trust or other entity, to engage in any
activity which is prohibited by this Section 8.2.
ARTICLE 9 - COVENANT NOT TO COMPETE.
9.1 COVENANT.
(a) In consideration of the purchase by Lincare of the Assets
and the Business pursuant to the terms and conditions of this Agreement,
and for other good and valuable consideration, Company, on behalf of itself
and each of its parents, subsidiaries and affiliates (all of such entities
being hereinafter referred to jointly and severally as the "Covenantors")
hereby represents, warrants, covenants and agrees, that commencing on the
date hereof and continuing for a period of five (5) years thereafter, none
of the Covenantors will, directly or indirectly, engage in the business of
marketing, advertising, selling, leasing, renting, distributing, or
otherwise providing oxygen, oxygen equipment, aerosol inhalation therapy
equipment and respiratory medications, nasal continuous positive airway
pressure devices, infant monitoring equipment and services, home sleep
studies and related therapy equipment, or any other respiratory therapy or
durable medical equipment, products, supplies and services to customers in
their homes or other alternative site care facilities within the Territory.
(b) Without limiting the generality of the provisions of Section
9.1(a) hereof, this Covenant Not to Compete shall be construed so that a
Covenantor shall also be in breach hereof if it is an employee, officer,
director, shareholder, investor, trustee, agent, principal or partner of,
or a consultant or advisor to or for, or a subcontractor or manager for, a
person, firm, corporation, partnership, joint venture, association, trust
or other entity which is engaged in such business in the Territory, or if
any of them receives any compensation or remuneration from or owns,
directly or indirectly, any outstanding stock or shares or has a beneficial
or other financial interest in the stock or assets of any such person,
firm, corporation, partnership, joint venture, association, trust or other
entity engaged in such business in the Territory. Notwithstanding anything
to the contrary contained in this Section 9.1(b), no Covenantor shall be
deemed to be in breach of this Covenant Not to Compete solely by reason of
owning an interest of less than one percent (1%) of the shares of any
company traded on a national securities exchange or in the over the counter
market.
(c) It is expressly understood and agreed by Covenantors that it
shall be a breach of this Covenant Not to Compete for any Covenantor to
assist in any way any business associate, or any other person, firm,
corporation, partnership, joint venture, association, trust or other
entity, to engage in any activity which a Covenantor is prohibited from
engaging in by this Covenant Not to Compete.
9.2 REMEDIES.
Covenantors agree that the remedy at law for any breach of obligation
under this Covenant Not to Compete will be inadequate and that in addition
to any other rights and remedies to which it may be entitled hereunder, at
law or in equity, Lincare shall be entitled to injunctive relief, and
reimbursement for all reasonable attorneys' fees and other expenses
incurred in connection with the enforcement hereof. It is the intention of
Covenantors and Lincare that this Covenant Not to Compete be fully
enforceable in accordance with its terms and that the provisions hereof be
interpreted so as to be enforceable to the maximum extent permitted by
applicable law. To the extent that any obligation to refrain from
competing within an area for a period of time as provided in this Covenant
Not to Compete is held invalid or unenforceable, it shall, to the extent
that it is invalid or unenforceable, be deemed void ab initio. The
remaining obligations imposed by the provisions of this Covenant Not to
Compete shall be fully enforceable as if such invalid or unenforceable
provisions had not been included herein and shall be construed, to the
extent possible, such that the purpose of this Covenant Not to Compete, as
intended by Covenantors and Lincare, can be achieved in a lawful manner.
9.3 CONDITION PRECEDENT.
Covenantors acknowledge and agree that their representations,
warranties, covenants, agreements, commitments and obligations contained in
this Covenant Not to Compete are an inducement for, and a condition
precedent to, Lincare's entering into this Asset Purchase Agreement and
that Lincare is specifically relying on such representations, warranties,
covenants, agreements, commitments and obligations of Covenantors in
entering into and performing its obligations under this Asset Purchase
Agreement.
ARTICLE 10 - EXPENSES; TAXES
10.1 EXPENSES.
Each of the parties hereto shall bear the fees and expenses incurred
by it in connection with the preparation, negotiation, execution, delivery,
and performance of this Agreement.
10.2 TAXES.
Lincare and Company shall share equally the amount of all taxes,
excises and other governmental charges and/or fees payable in connection
with the sale, conveyance, transfer, assignment and delivery of the Assets
hereunder (including, without limitation, all sales, use, transfer, filing
or recording taxes or fees). Company shall be responsible for the costs of
obtaining all notices and consents and for the preparation of all necessary
assignments in connection with the sale, conveyance, transfer, assignment,
and delivery of the Assets to Lincare hereunder.
ARTICLE 11 - REPRESENTATIVE'S FEES AND COMMISSIONS
Company acknowledges and agrees that Chanin Kirkland Messina, L.L.C.
has acted as its financial advisor and agent in connection with the
transactions contemplated by this Agreement. All negotiations relative to
this Agreement and the transactions contemplated hereby have been carried
on directly between Lincare and Company without the intervention or
assistance of any party not a party to this Agreement other than Chanin
Kirkland Messina, L.L.C. (other than to provide accounting or legal
counsel). No party to this Agreement, nor any third party, other than
Chanin Kirkland Messina, L.L.C., has any right or claim to any commission,
brokerage fee, finder's fee, expenses or other compensation relative to
this Agreement or the transactions contemplated hereby (other than for
accounting and legal services). Each party shall indemnify, defend and hold
the other parties hereto harmless from, against and in respect of all
claims for commission, brokerage fee, finder's fee, expenses or other
compensation claimed by or through such party.
ARTICLE 12 - GOVERNING LAW
The interpretation and performance of this Agreement shall be governed
by the laws of the State of Texas, without giving effect to its conflicts
of law provisions. Each party hereby agrees that any claims, demands,
lawsuits, proceedings and controversies arising from or relating to this
Agreement shall be brought and heard in federal or state courts of general
jurisdiction located in the State of Texas, and each party hereby consents
to the subject matter and personal jurisdiction of such courts in respect
thereof. The laws of the State of Texas shall govern all questions
concerning the construction, validity and interpretation of this Agreement
and performance of the obligations hereunder.
ARTICLE 13 - NOTICES
All notices, requests, demands, reports, statements or other
communications required to be given hereunder or relating to this Agreement
shall be in writing and shall be deemed to have been duly given on the date
of service if personally served on the party to whom notice is to be given,
or on the date of receipt if mailed to the party to whom notice is to be
given, by first class mail, registered or certified, return receipt
requested, postage prepaid, or by nationally recognized overnight courier,
and properly addressed to any such party at the address listed for such
party in the first paragraph of this Agreement. Any party may at any time
direct in writing that all communications or particular communications or
particular types of communications be delivered to specific designees other
than those specified herein by notifying the other parties in the manner
prescribed herein.
ARTICLE 14 - MISCELLANEOUS
14.1 ENTIRE AGREEMENT.
The terms and conditions of this Agreement (including the exhibits and
schedules hereto) constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede any prior
understandings, agreements or representations by or between the parties,
written or oral. There are no understandings, representations or warranties
of any kind whatsoever, except as expressly set forth herein. The exhibits
and schedules attached to this Agreement constitute an integral part hereof
for all purposes, including, without limitation, the construction and
interpretation of the respective rights and obligations of the parties
hereto.
14.2 AMENDMENT.
No amendment or modification of this Agreement or waiver of the terms
or conditions hereof shall be binding upon any party unless approved in
writing by, such party or by an authorized representative of such party.
14.3 NON-WAIVER.
The failure of any party hereto to enforce at any time any of the
provisions of this Agreement shall not be construed to be a waiver of any
such provisions, nor in any way affect the validity of this Agreement or
any part hereof or the right of any party thereafter to enforce any such
provisions. No waiver of any breach of this Agreement shall be deemed a
waiver of any other or subsequent breach, whether of the same provision or
otherwise.
14.4 ASSIGNMENT.
This Agreement shall inure to the benefit of and be binding on the
parties hereto and their respective successors, assigns, legal
representatives and heirs. This Agreement shall not be assigned by any
party without the prior written consent of the other parties. Any
attempted assignment without such consent shall be void. Notwithstanding
anything to the contrary contained in the foregoing, Lincare shall have the
right at any time, and from time to time, to assign this Agreement to its
parent or any affiliate or subsidiary or any successor to its business,
without the consent of the other parties to this Agreement.
14.5 NO THIRD PARTY BENEFICIARIES.
This Agreement is intended for the sole and exclusive benefit of the
parties hereto, and no third party or person is intended as a third party
beneficiary of this Agreement or any part hereof in any respect (including,
but not limited to, any employee of Company) and no third party or person
shall obtain any rights, claims, benefits or privileges under or by virtue
of this Agreement whatsoever.
14.6 CONSTRUCTION.
This Agreement has been negotiated at arm's length among the parties,
and each of the parties has been represented by legal counsel. Accordingly,
each of the parties shall be deemed to have participated in the preparation
of this Agreement and this Agreement shall not be construed more strictly
against one party than the other.
14.7 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall become a
binding agreement when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
14.8 NUMBER.
In this Agreement, where applicable, references to the singular shall
include the plural and references to the plural shall include the singular.
14.9 GENDER.
In this Agreement, where applicable, references to the male, female or
neuter gender shall include reference to all other such genders where the
context so requires.
14.10 HEADINGS.
The subject headings of the articles, Sections and Subsections of this
Agreement are included for purposes of convenience and reference only, and
shall not affect the construction or interpretation of any of its
provisions.
IN WITNESS WHEREOF, the parties to this Agreement have duly executed
it as of the day and year first above written.
LINCARE INC.
By: _________________________________
Title: ______________________________
HEALTHCOR HOLDINGS, INC.
By: _________________________________
Title: ______________________________
EXHIBIT 4.1
==========================================================================
HEALTHCOR HOLDINGS, INC., as Issuer,
THE GUARANTORS SIGNATORIES HERETO, as Guarantors,
and
NORWEST BANK MINNESOTA, N.A., as Trustee
____________________
AMENDED AND RESTATED INDENTURE
Dated as of June ___, 1999
$80,000,000
Senior Notes due 2004
==========================================================================
<PAGE>
Reconciliation and Tie between Trust Indenture Act
of 1939 and Amended and Restated Indenture, dated as of June __, 1999
Trust Indenture Indenture
Act Section Section
310 (a)(1). . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2). . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3). . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4). . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5). . . . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . 7.8; 7.10
(b)(1). . . . . . . . . . . . . . . . . . . . . . . 7.10
(b)(9). . . . . . . . . . . . . . . . . . . . . . . 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . 2.5
(b) . . . . . . . . . . . . . . . . . . . . . . . . 12.3
(c) . . . . . . . . . . . . . . . . . . . . . . . . 12.3
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(b)(1). . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2). . . . . . . . . . . . . . . . . . . . . . . 7.6
(c) . . . . . . . . . . . . . . . . . . . . . . . . 7.6; 12.2
(d) . . . . . . . . . . . . . . . . . . . . . . . . 7.6
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . 4.2; 4.4; 12.2
(b) . . . . . . . . . . . . . . . . . . . . . . . . 10.2
(c)(1). . . . . . . . . . . . . . . . . . . . . . . 12.4; 12.5
(c)(2). . . . . . . . . . . . . . . . . . . . . . . 12.4; 12.5
(c)(3). . . . . . . . . . . . . . . . . . . . . . . 12.4; 12.5
(d) . . . . . . . . . . . . . . . . . . . . . . . . 10.3; 10.4
(e) . . . . . . . . . . . . . . . . . . . . . . . . 12.5
(f) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . 7.1; 7.2
(b) . . . . . . . . . . . . . . . . . . . . . . . . 7.5; 12.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(d) . . . . . . . . . . . . . . . . . . . . . . . . 6.5; 7.1; 7.2
(e) . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316 (a) (last sentence) . . . . . . . . . . . . . . . . 12.6
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . 6.5
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . 6.4
(a)(2). . . . . . . . . . . . . . . . . . . . . . . 8.2
(b) . . . . . . . . . . . . . . . . . . . . . . . . 6.7
(c) . . . . . . . . . . . . . . . . . . . . . . . . 8.4
317 (a)(1). . . . . . . . . . . . . . . . . . . . . . . 6.8
(a)(2). . . . . . . . . . . . . . . . . . . . . . . 6.9
(b) . . . . . . . . . . . . . . . . . . . . . . . . 7.12
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . 12.1
"N.A." means Not Applicable.
* Note: This reconciliation and tie shall not, for any purpose, be deemed
to be part of this Indenture.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Other Definitions. . . . . . . . . . . . . . . . . . . . 17
Section 1.3 Incorporation by Reference of Trust Indenture Act. . . . 17
Section 1.4 Rules of Construction. . . . . . . . . . . . . . . . . . 18
ARTICLE 2
THE NOTES
Section 2.1 Dating; Incorporation of Form in Indenture . . . . . . . 18
Section 2.2 Execution and Authentication . . . . . . . . . . . . . . 19
Section 2.3 Registrar and Paying Agent . . . . . . . . . . . . . . . 20
Section 2.4 Paying Agent to Hold Money in Trust. . . . . . . . . . . 20
Section 2.5 Noteholder Lists . . . . . . . . . . . . . . . . . . . . 21
Section 2.6 Transfer and Exchange. . . . . . . . . . . . . . . . . . 21
Section 2.7 Replacement Notes. . . . . . . . . . . . . . . . . . . . 24
Section 2.8 Outstanding Notes. . . . . . . . . . . . . . . . . . . . 25
Section 2.9 Temporary Notes. . . . . . . . . . . . . . . . . . . . . 25
Section 2.10 Cancellation . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.11 Defaulted Interest . . . . . . . . . . . . . . . . . . . 25
Section 2.12 Deposit of Moneys. . . . . . . . . . . . . . . . . . . . 26
Section 2.13 CUSIP Number . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.14 Wire Payments to Holders . . . . . . . . . . . . . . . . 26
ARTICLE 3
REDEMPTION
Section 3.1 Optional Redemption. . . . . . . . . . . . . . . . . . . 27
Section 3.2 Notices to Trustee Upon Optional Redemption. . . . . . . 27
Section 3.3 Notice of Redemption . . . . . . . . . . . . . . . . . . 27
Section 3.4 Effect of Notice of Redemption or Sale . . . . . . . . . 28
Section 3.5 Deposit of Redemption Price. . . . . . . . . . . . . . . 28
ARTICLE 4
COVENANTS
Section 4.1 Payment of Indebtedness . . . . . . . . . . . . . . . . 28
Section 4.2 Reports . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 4.3 Waiver of Stay, Extension or Usury Laws . . . . . . . . 29
Section 4.4 Compliance Certificate. . . . . . . . . . . . . . . . . 29
Section 4.5 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 4.6 Limitations on Additional Indebtedness. . . . . . . . . 30
Section 4.7 Limitations on Acquisitions . . . . . . . . . . . . . . 31
Section 4.8 Limitations on Restricted Payments. . . . . . . . . . . 31
Section 4.9 Minimum Consolidated EBITDA; Minimum Debt-to-EBITDA
Ratio . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 4.10 Limitation on Capital Expenditures. . . . . . . . . . . 33
Section 4.11 Limitations on Capital Lease Obligations. . . . . . . . 33
Section 4.12 Limitation on Transactions with Affiliates. . . . . . . 33
Section 4.13 Limitations on Liens. . . . . . . . . . . . . . . . . . 34
Section 4.14 Limitations on Guarantees; Additional Guarantees. . . . 34
Section 4.15 Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries. . . . . . . . . . . . . . . . . 35
Section 4.16 Restriction on Sale and Issuance of Subsidiary
Interests . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.17 Limitation on Sale and Lease-Back Transactions. . . . . 36
Section 4.18 Line of Business; Cost Based Business Limitation. . . . 36
Section 4.19 Limitation on Status as Investment Company. . . . . . . 36
Section 4.20 Payments for Consent. . . . . . . . . . . . . . . . . . 36
Section 4.21 Corporate Existence . . . . . . . . . . . . . . . . . . 37
Section 4.22 Limitation on Certain Asset Sales . . . . . . . . . . . 37
Section 4.23 Change of Control . . . . . . . . . . . . . . . . . . . 38
Section 4.24 Maintenance of Office or Agency . . . . . . . . . . . . 40
Section 4.25 Maintenance of Properties and Insurance; Books and
Records; Compliance with Laws . . . . . . . . . . . . . 40
Section 4.26 Maintenance of Government Licenses. . . . . . . . . . . 41
Section 4.27 Further Assurance to the Trustee. . . . . . . . . . . . 41
Section 4.28 Environmental Compliance. . . . . . . . . . . . . . . . 41
Section 4.29 ERISA Requirement . . . . . . . . . . . . . . . . . . . 41
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.1 Merger, Consolidation or Sale of Assets . . . . . . . . 42
Section 5.2 Successor Person Substituted. . . . . . . . . . . . . . 43
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.1 Events of Default . . . . . . . . . . . . . . . . . . . 43
Section 6.2 Acceleration. . . . . . . . . . . . . . . . . . . . . . 45
Section 6.3 Other Remedies. . . . . . . . . . . . . . . . . . . . . 46
Section 6.4 Waiver of Past Defaults and Events of Default . . . . . 46
Section 6.5 Control by Majority . . . . . . . . . . . . . . . . . . 46
Section 6.6 Limitation on Suits . . . . . . . . . . . . . . . . . . 46
Section 6.7 Rights of Holders to Receive Payment. . . . . . . . . . 47
Section 6.8 Collection Suit by Trustee. . . . . . . . . . . . . . . 47
Section 6.9 Trustee May File Proofs of Claim. . . . . . . . . . . . 47
Section 6.10 Priorities. . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.11 Undertaking for Costs . . . . . . . . . . . . . . . . . 48
Section 6.12 Restoration of Rights and Remedies. . . . . . . . . . . 48
ARTICLE 7
TRUSTEE
Section 7.1 Duties of Trustee . . . . . . . . . . . . . . . . . . . 49
Section 7.2 Rights of Trustee . . . . . . . . . . . . . . . . . . . 50
Section 7.3 Individual Rights of Trustee. . . . . . . . . . . . . . 51
Section 7.4 Trustee's Disclaimer. . . . . . . . . . . . . . . . . . 51
Section 7.5 Notice of Defaults. . . . . . . . . . . . . . . . . . . 51
Section 7.6 Reports by Trustee to Holders . . . . . . . . . . . . . 51
Section 7.7 Compensation and Indemnity. . . . . . . . . . . . . . . 52
Section 7.8 Replacement of Trustee. . . . . . . . . . . . . . . . . 53
Section 7.9 Successor Trustee by Consolidation, Merger or
Conversion. . . . . . . . . . . . . . . . . . . . . . . 54
Section 7.10 Eligibility; Disqualification . . . . . . . . . . . . . 54
Section 7.11 Preferential Collection of Claims Against Company . . . 54
Section 7.12 Paying Agents . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.1 Without Consent of Holders. . . . . . . . . . . . . . . 55
Section 8.2 With Consent of Holders . . . . . . . . . . . . . . . . 55
Section 8.3 Compliance with Trust Indenture Act . . . . . . . . . . 57
Section 8.4 Revocation and Effect of Consents . . . . . . . . . . . 57
Section 8.5 Notation on or Exchange of Notes. . . . . . . . . . . . 57
Section 8.6 Trustee to Sign Amendments, Etc. . . . . . . . . . . . 57
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.1 Discharge of Indenture. . . . . . . . . . . . . . . . . 58
Section 9.2 Legal Defeasance. . . . . . . . . . . . . . . . . . . . 58
Section 9.3 Covenant Defeasance . . . . . . . . . . . . . . . . . . 59
Section 9.4 Conditions to Legal Defeasance or Covenant Defeasance . 59
Section 9.5 Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions . . . . . 61
Section 9.6 Reinstatement . . . . . . . . . . . . . . . . . . . . . 61
Section 9.7 Moneys Held by Paying Agent . . . . . . . . . . . . . . 62
Section 9.8 Moneys Held by Trustee. . . . . . . . . . . . . . . . . 62
ARTICLE 10
COLLATERAL
Section 10.1 Pledge of Collateral. . . . . . . . . . . . . . . . . . 63
Section 10.2 Recording; Priority; Opinions, Etc. . . . . . . . . . . 63
Section 10.3 Release of Collateral . . . . . . . . . . . . . . . . . 64
Section 10.4 Trust Indenture Act Requirements. . . . . . . . . . . . 65
Section 10.5 Suits To Protect Collateral . . . . . . . . . . . . . . 66
Section 10.6 Purchaser Protected . . . . . . . . . . . . . . . . . . 66
Section 10.7 Powers Exercisable by Receiver or Trustee . . . . . . . 66
Section 10.8 Release upon Termination of the Company's Obligations . 66
ARTICLE 11
GUARANTEE OF NOTES
Section 11.1 Guarantee . . . . . . . . . . . . . . . . . . . . . . . 67
Section 11.2 Execution and Delivery of Guarantees. . . . . . . . . . 68
Section 11.3 Limitation of Guarantee . . . . . . . . . . . . . . . . 68
Section 11.4 Release of Guarantor. . . . . . . . . . . . . . . . . . 69
Section 11.5 Additional Guarantors . . . . . . . . . . . . . . . . . 69
ARTICLE 12
MISCELLANEOUS
Section 12.1 Supplemental Indenture. . . . . . . . . . . . . . . . . 70
Section 12.2 Trust Indenture Act Controls. . . . . . . . . . . . . . 70
Section 12.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 12.4 Communications by Holders with Other Holders. . . . . . 71
Section 12.5 Certificate and Opinion as to Conditions Precedent. . . 71
Section 12.6 Statements Required in Certificate and Opinion. . . . . 72
Section 12.7 When Treasury Notes Disregarded . . . . . . . . . . . . 72
Section 12.8 Rules by Trustee and Agents . . . . . . . . . . . . . . 72
Section 12.9 Governing Law . . . . . . . . . . . . . . . . . . . . . 73
Section 12.10 No Adverse Interpretation of Other Agreements . . . . . 73
Section 12.11 No Recourse Against Others. . . . . . . . . . . . . . . 73
Section 12.12 Successors. . . . . . . . . . . . . . . . . . . . . . . 73
Section 12.13 Multiple Counterparts . . . . . . . . . . . . . . . . . 73
Section 12.14 Table of Contents, Headings, Etc. . . . . . . . . . . . 73
Section 12.15 Separability. . . . . . . . . . . . . . . . . . . . . . 73
<PAGE>
AMENDED AND RESTATED INDENTURE, dated as of __________, 1999, among
HEALTHCOR HOLDINGS, INC., a Delaware corporation, as issuer (the
"Company"), the Guarantors signatory hereto from time to time (the
"Guarantors") and Norwest Bank Minnesota, N.A., as trustee (the "Trustee").
The Company and the Guarantors issued the Securities pursuant to that
certain Indenture, dated as of December 1, 1997, among the Company, the
Guarantors parties thereto and the Trustee (as amended, supplemented and
modified by that certain First Supplemental Indenture, dated as of December
2, 1997, and that certain Second Supplemental Indenture, dated as of
December 3, 1997, the "Existing Indenture").
The Company, the Guarantors and certain holders of the Securities
desire to amend the Existing Indenture.
Each party agrees for the benefit of the other parties and for the
equal and ratable benefit of the Holders of the Senior Notes due May 15,
2004 of the Company, unconditionally guaranteed by the Guarantors (the
"Notes"), to amend and restate the Existing Indenture as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
"Acquired Indebtedness" means Indebtedness of a Person existing
at the time such Person becomes a Subsidiary or assumed in connection with
an Acquisition from such Person.
"Acquisition" means (i) an Investment by the Company or any
Subsidiary of the Company in any other Person pursuant to which such Person
shall become a Subsidiary of the Company, or shall be merged with or into
the Company or any Subsidiary of the Company, (ii) the acquisition by the
Company or any Subsidiary of the Company of the assets of any Person (other
than a Subsidiary of the Company) which constitute all or substantially all
of the assets of such Person or (iii) the acquisition by the Company or any
Subsidiary of the Company of any division or line of business of any Person
(other than a Subsidiary of the Company).
"Adjusted Net Assets" of a Guarantor at any date shall mean the
lesser of the amount by which (i) the fair value of the property of such
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed
and contingent liabilities (including, without limitation, any guarantees
of Indebtedness)), but excluding liabilities under the Guarantee of such
Guarantor at such date and (ii) the present fair salable value of the
assets of such Guarantor exceeds the total amount of its debts (after
giving effect to all other fixed and contingent liabilities (including,
without limitation, any guarantees of Indebtedness) and after giving effect
to any collection from any Subsidiary of such Guarantor in respect of the
obligations of such Subsidiary under the Guarantee), excluding Indebtedness
in respect of the Guarantee, as they become absolute and matured.
"Affiliate" of any specified Person means any other Person which
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. For
the purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling," "controlled by," and "under common
control with"), as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of
the management or policies of such Person, whether through the ownership of
voting securities, by agreement or otherwise; provided that beneficial
ownership of 10% or more of the voting securities of a Person shall be
deemed to be control.
"Agent" means any Registrar, Paying Agent, co-registrar or agent for
service of notices and demands.
"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 Cedel that apply to such
transfer or exchange.
"Asset Sale" means the direct or indirect sale, transfer,
issuance, conveyance, lease (other than operating leases entered into in
the ordinary course of business pursuant to ordinary business terms),
assignment or other disposition (including, without limitation, by eminent
domain, condemnation or similar governmental proceeding), and any merger or
consolidation of any Subsidiary of the Company with or into another Person
(other than the Company or any Wholly-Owned Subsidiary of the Company)
whereby such Subsidiary shall cease to be a Wholly-Owned Subsidiary (each,
a "disposition" or "issuance") involving in any consecutive twelve-month
period property or assets with a fair market value in excess of $500,000
of: (i) any Equity Interest in any Subsidiary; (ii) real property owned by
the Company or any Subsidiary thereof, or a division, line of business or
comparable business segment of the Company or any Subsidiary thereof; or
(iii) other property, assets or rights (including, without limitation
leasehold rights) of the Company or any Subsidiary thereof, provided,
however, that, Asset Sales shall not include (A) dispositions or issuances
to the Company or to a Subsidiary thereof or to any other Person if after
giving effect to such disposition or issuance such other Person becomes a
Wholly-Owned Subsidiary of the Company, (B) dispositions of inventory in
the ordinary course of business, (C) a disposition that is a Restricted
Payment not prohibited by Section 4.8, (D) the grant in the ordinary course
of business of any license, (E) the disposition of any Temporary Cash
Investment, (F) the grant of any Lien securing Permitted Indebtedness, and
(G) a disposition in connection with a Change of Control that complies with
Section 4.23. Notwithstanding any provision of this Indenture to the
contrary, the expiration or non-renewal of any lease of property at the
normal expiration date thereof shall not constitute an Asset Sale.
"Asset Sale Proceeds" means (i) the aggregate cash consideration
received by the Company or a Subsidiary in connection with an Asset Sale
under this Indenture less (ii) (A) any portion of such consideration
required to be paid to HCFP Funding, Inc. pursuant to the HCFP Loan
Documents, to the lenders under the Convertible Loan Documents, to the
lenders under the Working Capital Facility or to any obligee under any
Capital Lease Obligation permitted by this Indenture, (B) the expenses
(including out-of-pocket expenses) incurred by the Company or such
Subsidiary in connection with such transaction (including reasonable
brokerage commissions and fees), (C) the amount of any federal and state
taxes incurred in connection with such transaction, and (D) reserves
required to be maintained in accordance with GAAP against foreseeable sale-
related liabilities, in each case as certified by an Officer to the Trustee
at the time of such transaction.
"Attributable Indebtedness" when used with respect to any Sale
and Lease-Back Transaction means, as at the time of determination, the
present value (discounted at a rate equivalent to the interest rate
implicit in the lease, compounded on a semi-annual basis) of the total
obligations of the lessee for rental payments (after excluding all amounts
required to be paid on account of maintenance and repairs, insurance,
taxes, utilities and other similar expenses payable by the lessee pursuant
to the terms of the lease) during the remaining term of the lease included
in any such Sale and Lease-Back Transaction or until the earliest date on
which the lessee may terminate such lease without penalty or upon payment
of a penalty (in which case the rental payments shall include such
penalty).
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal
or state law for the relief of debtors as in effect from time to time.
"Board of Directors" means, as to any Person, the board of
directors or any duly authorized committee thereof of such Person or, if
such Person is a partnership (or other non-corporate Person), of the
managing general partner or partners (or Persons serving an analogous
function) of such Person.
"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.
"Business Day" means any day that is not a Legal Holiday
"Capital Lease Obligations" means Indebtedness represented by Obligations
under a lease that is required to be capitalized for financial reporting
purposes in accordance with GAAP, and the amount of such Indebtedness shall
be the capitalized amount of such Obligations determined in accordance with
GAAP.
"Cedel" means Cedel Bank, societe anonyme.
"Certificated Note" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.6
hereof, in the form of Exhibit A hereto except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges
of Interests in the Global Note" attached thereto.
"Change of Control" means the occurrence of any of the following:
(i) the sale, lease, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company and
its Subsidiaries taken as a whole to any "person" (as such term is used in
Section 13(d)(3) of the Exchange Act); (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" (as defined above),
is or becomes the "beneficial owner" (as such term is defined in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that a person shall be deemed
to have "beneficial ownership" of all securities that such person has the
right to acquire, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition), directly
or indirectly, of more than 35% of the Common Equity Interest of the
Company (measured by voting power rather than number of shares or
equivalent units); or (iv) the first day on which less than a majority of
the members of the Board of Directors of the Company are Continuing
Directors.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means, collectively, all of the property and assets
that are from time to time subject to Liens for the benefit of the Trustee
and the Holders pursuant to any Security Document or this Indenture.
"Common Equity Interest" of any Person means all Equity Interests
of such Person that are generally entitled to (i) vote in the election of
directors of such Person or (ii) if such Person is not a corporation, vote
or otherwise participate in the selection of the governing body, partners,
managers or others that will control the management and policies of such
Person.
"Company" means the party named as such in the first paragraph of
this Indenture until a successor replaces such party pursuant to Article 5
of this Indenture and thereafter means the successor.
"Company Request" means any written request signed in the name of
the Company by any two of the following: the Chief Executive Officer; the
President; any Vice President; the Chief Financial Officer; the Treasurer;
or the Secretary or any Assistant Secretary (but not both the Secretary and
any Assistant Secretary) of the Company.
"Consolidated EBITDA" means for any period, the sum for such
period of (i) Consolidated Net Income, (ii) to the extent deducted in
calculating Consolidated Net Income, the sum of provisions for such period
for income taxes, interest expense, and depreciation and amortization
expense and, (iii) to the extent deducted in calculating Consolidated Net
Income, the amount of any aggregate net loss (or minus the amount of any
gain) during such period arising from the sale, exchange or other
disposition of capital assets other than in the ordinary course of
business.
"Consolidated Net Income" means, with respect to any Person for
any period, the aggregate of the Net Income of such Person and its
subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that (i) the Net Income (but not loss) of
any Person that is not a Subsidiary or that is accounted for by the equity
method of accounting shall be included only to the extent of the amount of
dividends or distributions paid in cash to the referent Person or a Wholly-
Owned Subsidiary thereof, (ii) the Net Income of any Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or
similar distributions by that Subsidiary of that Net Income is not at the
date of determination permitted without any prior governmental approval
(that has not been obtained) or, directly or indirectly, by operation of
the terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to that
Subsidiary or its stockholders, (iii) the Net Income of any Person acquired
in a pooling of interests transaction for any period prior to the date of
such acquisition shall be excluded, (iv) the cumulative effect of a change
in accounting principles shall be excluded and (v) any non-cash
compensation expense in connection with the issuance of employee stock
options shall be excluded.
"Consolidated Net Revenue" for any period means the net revenue
of the Company and its Subsidiaries on a consolidated basis for such
period, determined in accordance with GAAP, consistent with past practice
and in accordance with the reserve policy established by the Company as of
December 31, 1998.
"Contractual Obligation" means as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Continuing Directors" means, as of any date of determination,
any member of the Board of Directors of the Company who (i) was a member of
such Board of Directors on the Restatement Date or (ii) was nominated for
election or elected to such Board of Directors with the approval of a
majority of the Continuing Directors who were members of such Board at the
time of such nomination or election.
"Convertible Loan Agreement" means the loan agreement, dated as
of December 23, 1998, by and among the Company, the lenders from time to
time party to the Convertible Loan Agreement and Credit Suisse First Boston
Management Corporation, as agent for the lenders under the Convertible Loan
Agreement, as amended, supplemented or otherwise modified prior to the
Restatement Date and from time to time thereafter in accordance with its
terms.
"Convertible Loan Documents" means, collectively, (i) the
Convertible Loan Agreement and (ii) the Loan Documents (as defined in the
Convertible Loan Agreement), in each case as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
their respective terms.
"Cost Based Business" means the provision of skilled intermittent
home-health services under the Medicare home health benefit that is
reimbursed on a cost methodology basis.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Default" means any event that is, or after notice or passage of
time or both would be, an Event of Default.
"Depositary" means, with respect to the Notes issuable or issued
in whole or in part in global form, the Person specified in Section 2.3
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.
"Disqualified Equity Interests" means any Equity Interest which,
by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable at the option of the holder), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to the date that is 91
days following the Maturity Date, for cash or securities constituting
Indebtedness; provided, however, that Preferred Equity Interests of the
Company or any Subsidiary thereof that are issued with the benefit of
customary provisions requiring a Change of Control Offer or Asset Sale
Proceeds offer to be made for such Preferred Equity Interests in the event
of a change of control or sale of assets of the Company or such Subsidiary
shall not be deemed to be Disqualified Equity Interests solely by virtue of
such provisions.
"Equity Interest" means any and all shares of Equity Interest of
the Company (however designated and whether voting or nonvoting) from time
to time outstanding other than shares of the Company's Common Stock
outstanding on the Restatement Date or issued thereafter upon exercise of
an Equity Interest Right outstanding or granted on or prior to the
Restatement Date.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Euroclear" means Morgan 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.
"Existing Indenture" has the meaning ascribed to such term in the
second paragraph of this Indenture.
"fair market value" or "fair value" means, with respect to any
assets or property, the price which could be negotiated in an arm's-length,
free market transaction, for cash, between a willing seller and a fully
informed, willing and able buyer, neither of whom is under undue pressure
or compulsion to complete the transaction, all as reasonably determined by
a majority of the Board of Directors acting in good faith, such
determination to be evidenced by a Board Resolution delivered to the
Trustee. No such determination need be supported by an appraisal or expert
opinion.
"Fiscal Quarter" means each three month period ending on March
31, June 30, September 30, and December 31 of each year.
"GAAP" means generally accepted accounting principles applied as
in effect in the United States on the Issue Date.
"Global Note" means a Note evidencing all or a part of the Notes
to be issued as book-entry Notes, issued to the Depositary in accordance
with Section 2.1 and bearing the legend or legends prescribed in Exhibit A
to this Indenture.
"Global Note Legend" means the legend or legends prescribed in
Exhibit B hereto, which are required to be placed on all Global Notes
issued under this Indenture.
"Guarantee" means, as the context may require, individually, a
guarantee, or collectively, any and all guarantees, of the Obligations of
the Company with respect to the Notes by each Guarantor pursuant to the
terms of Article 11 hereof.
"Guarantor" means the parties named as such in the first
paragraph of this Indenture and any other Person, in each case so long as
such Person guarantees the Obligations of the Company with respect to the
Notes pursuant to the terms of Article 11 hereof.
"HCFP Loan Agreement" means the Loan and Security Agreement,
dated as of May 19, 1998, among Healthcor, Inc., the Company, Healthcor
Oxygen & Medical Equipment, Inc., Healthcor Pharmacy, Inc., PHHN, Inc.,
Healthcor Rehabilitation Services, Inc., HC Personnel Resources, Inc. and
Carenetwork, Inc., as amended, supplemented or otherwise modified prior to
the Restatement Date and from time to time thereafter in accordance with
its terms.
"HCFP Loan Documents" means, collectively, (i) HCFP Loan
Agreement and (ii) the other Loan Documents (as defined in the HCFP Loan
Agreement), in each case as the same may be amended, supplemented or
otherwise modified from time to time in accordance with their respective
terms.
"Hedging Obligations" means, for any Person, any interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement
or other similar agreement designed to protect the party indicated therein
against fluctuations in interest rates, currency exchange rates or
commodity prices.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (by conversion, exchange
or otherwise), assume, guarantee or otherwise become liable, directly or
indirectly, contingently or otherwise, in respect of such Indebtedness or
other obligation or the recording, as required pursuant to GAAP or
otherwise, of any such Indebtedness or other obligation on the balance
sheet of such person (and "incurrence," "incurred, "incurable," and
"incurring" shall have meanings correlative to the foregoing), provided,
however, that a change in GAAP that results in an obligation of such Person
that exists at such time becoming Indebtedness shall not be deemed an
incurrence of such Indebtedness and provided, further, that accrual of
interest, the accretion of accreted value and the payment of interest in
the form of additional Indebtedness will not be deemed to be an incurrence
of Indebtedness. Any Indebtedness or Equity Interests of a Person existing
at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be incurred by
such Person at the time it becomes a Subsidiary. Indebtedness consisting of
reimbursement obligations in respect of a letter of credit will be deemed
to be incurred when the letter of credit is issued or renewed.
"Indebtedness" means (without duplication), with respect to any
Person, any Indebtedness at any time outstanding, secured or unsecured,
contingent or otherwise, which is for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only
to a portion thereof), or evidenced by bonds, notes, debentures or similar
instruments or representing the balance deferred and unpaid of the purchase
price of any property (excluding, without limitation, any balances that
constitute accounts payable or trade payables, and other liabilities
arising in the ordinary course of business) and shall also include, to the
extent not otherwise included: (i) any Capital Lease Obligations; (ii)
Obligations of Persons other than such Person secured by a Lien to which
the property or assets owned or held by such Person are subject, whether or
not the Obligation or Obligations secured thereby shall have been incurred
or assumed by such Person; (iii) all Indebtedness of others of the types
described in the other clauses of this definition (including all dividends
of other Persons) the payment of which is guaranteed, directly or
indirectly, by such Person or that is otherwise its legal liability or
which such Person has agreed to purchase or repurchase or in respect of
which such Person has agreed contingently to supply or advance funds
(whether or not such items would appear upon the balance sheet of the
guarantor); (iv) all Obligations for the reimbursement of any Obligation or
on any letter of credit, banker's acceptance or similar credit transaction;
(v) Disqualified Equity Interests; (vi) Hedging Obligations of any such
Person; and (vii) Attributable Indebtedness. The amount of Indebtedness of
any Person at any date shall be the outstanding balance at such date of all
unconditional Obligations as described above and, with respect to
contingent Obligations, the maximum liability upon the occurrence of the
contingency giving rise to the obligation, provided, however, that: (i) the
amount outstanding at any time of any Indebtedness issued with original
issue discount, including the Notes, if applicable, is the principal amount
of such Indebtedness less the remaining unamortized portion of the original
issue discount of such Indebtedness at such time as determined in
conformity with GAAP, and (ii) Indebtedness shall not include any liability
for federal, state, local or other taxes. Notwithstanding any other
provision of the foregoing definition, any trade payable arising from the
purchase of goods or materials or for services obtained in the ordinary
course of business shall not be deemed to be "Indebtedness" for purposes of
this definition. Furthermore, guarantees of (or obligations with respect to
letters of credit supporting) Indebtedness otherwise included in the
determination of such amount shall not also be included.
"Indenture" means this Amended and Restated Indenture as amended,
restated or supplemented from time to time. For purposes of determining
the rights, powers, privileges and obligations of the Trustee under and in
connection with the Security Documents, the term "this Indenture" shall be
deemed to include the Security Documents where appropriate in the context.
"Independent Financial Advisor" means an accounting, appraisal,
investment banking or consulting firm of nationally recognized standing
that is, in the good faith judgment of the Board of Directors of the
Company, qualified to perform the task for which such firm has been
engaged.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Intercompany Transaction" means any transaction solely between
or among the Company and its Subsidiaries or between or among Subsidiaries.
"Interest" when used with respect to any Note, means the amount
of all interest accruing on such Note, including all interest accruing
subsequent to the occurrence of any events specified in Sections 6.1 (8)
and (9), or which would have accrued but for any such event.
"Interest Payment Date" means the stated maturity of an
installment of Interest on the Notes.
"Investment" means, directly or indirectly, any advance, account
receivable (other than an account receivable arising in the ordinary course
of business (including accounts receivable arising in the ordinary course
of business and acquired as a part of the assets acquired by the Company or
a Subsidiary in connection with an acquisition of assets which is otherwise
permitted by the terms of this Indenture)), loan or capital contribution to
(by means of transfers of property to others, payments for property or
services for the account or use of others or otherwise), the purchase of
any stock, bonds, notes, debentures, partnership or joint venture interests
or other securities of, the acquisition, by purchase or otherwise, of all
or substantially all of the business or stock or other evidence of
beneficial ownership of, any Person, the guarantee or assumption of the
Indebtedness of any other Person (except for an assumption of Indebtedness
for which the assuming Person receives consideration with a fair market
value at least equal to the principal amount of the Indebtedness assumed),
the making of any investment in any Person and all other items that would
be classified as investments on a balance sheet of such Person prepared in
accordance with GAAP. Investments shall exclude (i) extensions of trade
credit on commercially reasonable terms in accordance with normal trade
practices, (ii) endorsements of negotiable instruments for collection or
deposit in the ordinary course of business, (iii) commission, travel,
payroll and similar advances to directors, officers and employees made in
the ordinary course of business and (iv) workers' compensation, utility,
lease and similar deposits and prepaid expenses in the ordinary course of
business.
"Issue Date" means December 1, 1997.
"Legal Holiday" means, with respect to a particular place of
payment, a Saturday, a Sunday, a federally-recognized Holiday or a day on
which banking institutions are not required to be open in the State of New
York or at such place of payment. If a payment date is a Legal Holiday at
a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
"Lien" means with respect to any property or assets of any
Person, any mortgage or deed of trust, pledge, hypothecation, assignment,
deposit arrangement, security interest, lien, charge, easement,
encumbrance, preference, priority, or other security agreement or
preferential arrangement of any kind or nature whatsoever on or with
respect to such property or assets (including without limitation, any
Capital Lease Obligation, conditional sales, or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
"Maturity Date" means December 1, 2004.
"Net Income" means with respect to any Person for any period, the
net income (loss) of such Person determined in accordance with GAAP and
before any reduction in respect of dividends on Preferred Equity Interests,
excluding, however: (i) any gain (but not loss), together with any related
provision for taxes on such gain (but not loss), realized in connection
with (a) any Asset Sale or (b) the disposition of any securities by such
Person or any of its Subsidiaries; and (ii) any extraordinary or
nonrecurring gain (or loss incurred prior to the Issue Date, but not loss
incurred after the Issue Date), together with any related provision for
taxes on such extraordinary or nonrecurring gain (but not loss).
"Non-Recourse Debt" means Indebtedness: (i) as to which neither
the Company nor any of its Subsidiaries (A) provides credit support of any
kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (B) is directly or indirectly liable (as a
guarantor or otherwise) or (C) constitutes the lender; (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
of the Company or any of its Subsidiaries to declare a default on such
other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its stated maturity; and (iii) as to which the lenders
have been notified in writing that they will not have any recourse to the
stock or assets of the Company or any of its Subsidiaries.
"Note Custodian" means the Trustee, as custodian with respect to
the Notes in global form, or any successor entity thereto.
"Notes" means the Senior Notes Due December 1, 2004 issued
pursuant 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 Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer or
the Treasurer of such Person, the Controller, the Secretary or any other
officer designated by the Board of Directors of such Person, as the case
may be (or, in the case of a Person that is a partnership (or other non-
corporate Person), of a general partner (or analogous individuals) of such
Person in such capacity).
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or any
Vice President and the Chief Financial Officer or any Treasurer or
assistant Treasurer of such Person (or, in the case of a Person that is a
partnership (or other non-corporate Person), of a general partner (or
analogous individuals) of such Person in such capacity) that shall comply
with applicable provisions of this Indenture.
"Opinion of Counsel" means a written opinion from legal counsel
which counsel is reasonably acceptable to the Trustee.
"Participant" means, with respect to DTC, Euroclear or Cedel, a
Person who has an account with DTC, Euroclear or Cedel, respectively (and,
with respect to DTC, shall include Euroclear and Cedel).
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Indebtedness" means:
(i) Indebtedness under the Securities and Refinancing
Indebtedness incurred in respect thereof;
(ii) Indebtedness of the Company to any Guarantor and of any
Guarantor to the Company or any other Guarantor;
(iii) Indebtedness outstanding pursuant to the HCFP Loan
Documents, the Convertible Loan Documents and the Working Capital Facility;
provided that the aggregate Indebtedness outstanding pursuant to the HCFP
Loan Documents, the Convertible Loan Documents and the Working Capital
Facility from time to time outstanding shall not at any time exceed
$20,000,000;
(iv) Capital Lease Obligations incurred after the Restatement
Date in compliance with Section 4.11 hereof and Refinancing Indebtedness
incurred in respect thereof; and
(v) Indebtedness constituting obligations for the reimbursement
of any obligation or on any letter of credit, banker's acceptance or
similar credit transaction, in each case issued in the ordinary course of
business and not in connection with the borrowing of money or the obtaining
of advances or credit.
"Permitted Investments" means, for any Person, Investments made
on or after the Issue Date consisting of:
(i) Temporary Cash Investments;
(ii) Investments in the Company or a Wholly-Owned Subsidiary of
the Company;
(iii) Investments in any Person, if (1) as a result of such
Investment (a) such Person or a Subsidiary of such Person becomes a Wholly-
Owned Subsidiary of the Company or (b) such Person or a Subsidiary of 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 Wholly-Owned Subsidiary thereof, and (2) after giving effect
to such Investment the Company is in compliance with Section 4.18;
(iv) Investments represented by accounts receivable created or
acquired in the ordinary course of business;
(v) Investment that are made by the Company or a Subsidiary
thereof in the form of any Equity Interests, Indebtedness or other assets
received as partial consideration for the consummation of a transaction
that is otherwise permitted under the covenant described under Section
4.23;
(vi) Investments in the Notes otherwise permitted under this
Indenture;
(vii) Investments existing on the Restatement Date;
(viii) any Investment acquired solely in exchange for or by
conversion of Equity Interests (other than Disqualified Equity Interests)
of the Company;
(ix) stocks, obligations or other securities received in
settlement of debts (including, without limitation, under any bankruptcy or
other similar proceeding) owing to the Company or any of its Subsidiaries
as a result of foreclosure, perfection, enforcement or settlement of any
Indebtedness or Liens in favor of the Company or a Subsidiary; and
(x) guarantees not prohibited by Section 4.6.
"Permitted Liens" means, without duplication:
(i) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Company or its
Subsidiaries, as the case may be, in conformity with GAAP;
(ii) landlords', carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business which are not overdue for a period of more than 60 days
or which are being contested in good faith by appropriate proceedings;
(iii)pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security legislation
and deposits securing liability to insurance carriers under insurance or
self-insurance arrangements;
(iv) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(v) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Company or such Subsidiary;
(vi) Liens securing Indebtedness of the Company and its
Subsidiaries permitted by clause (iv) of the definition of Permitted
Indebtedness incurred to finance or refinance the acquisition of fixed or
capital assets, provided that (A) such Liens shall be created substantially
simultaneously with the acquisition of such fixed or capital assets, (B)
such Liens do not at any time encumber any property other than the property
financed by such Indebtedness, and any replacements, additions, accessions
and improvements thereto, in each case in the ordinary course of business,
and proceeds of any of the foregoing, (C) the amount of Indebtedness
secured thereby is not increased and (D) the principal amount of
Indebtedness secured by any such Lien shall at no time exceed 100% of the
original purchase price of such property at the time it was acquired;
(vii) Liens created pursuant to the HCFP Loan Documents;
(viii) Liens created pursuant to the Convertible Loan Documents;
(ix) Liens arising under this Indenture in favor of the Trustee
for its own benefit or for the benefit of Holders;
(x) setoff, chargeback and other rights of depository and
collecting banks and other regulated financial institutions with respect to
money or instruments of the Company or its Subsidiaries on deposit with or
in the possession of such institutions;
(xi) judgment or attachment Liens not giving rise to an Event of
Default; and
(xii)Liens securing the Working Capital Facility.
"Person" means any individual, corporation, partnership, limited
liability company or partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government (including any
agency or political subdivision thereof).
"Plan of Liquidation" means, with respect to any Person, a plan
that provides for, contemplates or the effectuation of which is preceded or
accompanied by (whether or not substantially contemporaneously, in phases
or otherwise) (i) the sale, lease, conveyance or other disposition of all
or substantially all of the assets of such Person otherwise than as an
entirety or substantially as an entirety, and (ii) the distribution of all
or substantially all of the proceeds of such sale, lease, conveyance or
other disposition and all or substantially all of the remaining assets of
such Person to holders of Equity Interest of such Person.
"Pledge Agreement" means the Pledge Agreement, dated as of the
Restatement Date, by the Company in favor of the Trustee, as the same may
be amended, amended and restated, supplemented or otherwise modified from
time to time in accordance with its terms.
"Preferred Equity Interest" means any Equity Interest 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 Interest issued by such
Person.
"Property" or "property" of any Person means all types of real,
personal, tangible, intangible or mixed property owned by such Person
whether or not included in the most recent consolidated balance sheet of
such Person and its Subsidiaries under GAAP.
"Redemption Date" when used with respect to any Note to be
redeemed means the date fixed for such redemption pursuant to this
Indenture.
"Refinancing Indebtedness" means Indebtedness that refunds,
refinances, renews or replaces ("refinances") any Indebtedness of the
Company or its Subsidiaries outstanding on the Restatement Date or other
Indebtedness permitted to be incurred by the Company or its Subsidiaries
pursuant to the terms of this Indenture, whether involving the same or any
other lender or creditor or group of lenders or creditors, but only to the
extent that: (i) the Refinancing Indebtedness is subordinated to the Notes
or the Guarantees, as applicable, to at least the same extent as the
Indebtedness being refinanced, if at all; (ii) the Refinancing Indebtedness
is scheduled to mature either (A) no earlier than the Indebtedness being
refinanced, or (B) after the Maturity Date of the Notes; (iii) except where
such Refinancing Indebtedness is Attributable Indebtedness, has a Weighted
Average Life to Maturity at the time such Refinancing Indebtedness is
incurred that is equal to or greater than the Weighted Average Life to
Maturity of the Indebtedness being refinanced; (iv) except where such
Refinancing Indebtedness is Attributable Indebtedness, such Refinancing
Indebtedness is in an aggregate principal amount that is less than or equal
to the aggregate principal or accreted amount (in the case of any
Indebtedness issued with original issue discount, as such) then outstanding
under the Indebtedness being refinanced plus the amount of all fees and
expenses (including premiums and penalties) associated with such
refinancing); and (v) such Refinancing Indebtedness is incurred by the same
Person that initially incurred the Indebtedness being refinanced, except
that the Company or a Guarantor may incur Refinancing Indebtedness to
refinance Indebtedness of the Company or any Wholly-Owned Subsidiary of the
Company.
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other governmental authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Restatement Date" means the date of this Amended and Restated
Indenture as set forth in the preamble paragraph above.
"Restricted Payment" means any of the following: (i) the
declaration or payment of any dividend or any other distribution or payment
on Equity Interests of the Company or any Subsidiary thereof (including,
without limitation, any payment in connection with any merger or
consolidation including the Company) or any payment made to the direct or
indirect holders (in their capacities as such) of Equity Interests of the
Company or any Subsidiary or Affiliate thereof (other than (A) dividends or
distributions payable solely in Equity Interests of the Company (other than
Disqualified Equity Interests) or in options, warrants or other rights to
purchase Equity Interests of the Company (other than Disqualified Equity
Interests), or (B) dividends or distributions payable to the Company or to
a Wholly-Owned Subsidiary of the Company); (ii) the purchase, redemption or
other acquisition or retirement for value of any Equity Interests of the
Company or any Subsidiary or Affiliate thereof (other than Equity Interests
owned by the Company or a Wholly-Owned Subsidiary, excluding Disqualified
Equity Interests); (iii) the making of any principal payment on, or the
purchase, defeasance, repurchase, redemption or other acquisition or
retirement for value, prior to any scheduled maturity, scheduled repayment
or scheduled sinking fund payment, of any Subordinated Indebtedness
(except, if no Default or Event of Default is continuing or would result
therefrom, any such payment, purchase, defeasance, repurchase, redemption
or other acquisition or retirement for value made out of Excess Proceeds
available for general corporate purposes if such payment or other action is
required by this Indenture or other agreement or instrument pursuant to
which such Subordinated Indebtedness was issued); or (iv) the making of any
Investment other than a Permitted Investment. For purposes of determining
the amount expended for Restricted Payments, cash distributed or invested
shall be valued at the face amount thereof and property other than cash
shall be valued at its fair market value.
"SEC" means the U.S. Securities and Exchange Commission.
"Securities" means, collectively, the Notes and the Guarantee.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means the Security Agreement, dated as of
the Restatement Date, by and among the Company, the Guarantors and certain
of the Company's Subsidiaries in favor of the Trustee, as the same may be
amended, amended and restated, supplemented or otherwise modified from time
to time in accordance with its terms.
"Security Documents" means the Pledge Agreement and the Security
Agreement evidencing the Lien on the Collateral in favor of the Trustee, in
each case as the same may be amended, amended and restated, supplemented or
otherwise modified from time to time in accordance with its terms.
"Senior Indebtedness" means the Indebtedness under the HCFP Loan
Documents, the Convertible Loan Documents and the Working Capital Facility
and any Refinancing Indebtedness in respect of any of the foregoing.
"Significant Subsidiary" shall have the meaning set forth in Rule
1-02 of Regulation S-X promulgated by the SEC.
"Subordinated Indebtedness" means Indebtedness of the Company or
any Guarantor which is subordinated or junior in right of payment to the
Notes or a Guarantee, as the case may be, pursuant to the terms of such
Indebtedness or a written agreement.
"Subsidiary" of any specified Person means any corporation,
partnership, joint venture, association or other business entity, whether
now existing or hereafter organized or acquired, (i) in the case of a
corporation, of which more than 50% of the total voting power of the Equity
Interests entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, officers or trustees thereof is held by
such first-named Person or any of its Subsidiaries; or (ii) in the case of
a partnership, joint venture, association or other business entity, with
respect to which such first-named Person or any of its Subsidiaries has the
power to direct or cause the direction of the management and policies of
such entity by contract or otherwise or if in accordance with GAAP such
entity is consolidated with the first-named Person for financial statement
purposes.
"Temporary Cash Investments" means: (i) United States dollars;
(ii) any evidence of Indebtedness issued or directly and fully guaranteed
or insured by the United States government or any agency or instrumentality
thereof (provided the full faith and credit of the United States government
is behind such obligation) having maturities of not more than 12 months
from the date of acquisition; (iii) certificates of deposit and eurodollar
time deposits with maturities of 12 months or less from the date of
acquisition, demand deposits, bankers' acceptances with maturities not
exceeding six months and overnight bank deposits, in each case with any
domestic commercial bank that is a member of the Federal Reserve System and
having capital and surplus in excess of $500,000,000, or whose short-term
debt has the highest rating obtainable from Moody's Investors Service, Inc.
("Moody's") or Standard & Poor's Ratings Group ("S&P"), (iv) any money
market deposit account issued or offered by a domestic commercial bank that
is a member of the Federal Reserve System and having capital and surplus in
excess of $500,000,000, or whose short-term debt has the highest rating
obtainable from Moody's or S&P; (v) repurchase obligations with a term of
not more than seven days 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; (vi) commercial
paper having the highest rating obtainable from Moody's or S&P, and in each
case maturing within 270 days after the date of acquisition; and (vii)
investments in money market funds having assets in excess of $500,000,000,
substantially all of which consist of investments of the types described in
(i) through (vi) above.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
77aaa-77bbbb) as in effect on the Issue Date (except as provided in Section
8.3 hereof).
"Trust Officer" when used with respect to the Trustee, means any
officer or assistant officer of the Trustee assigned to the Corporate Trust
Administration department or similar department performing corporate trust
work of the Trustee or any successor to such department or, in the case of
a successor Trustee, any officer of such successor Trustee performing
corporate trust functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of
his knowledge of and familiarity with the particular subject.
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"U.S. Government Obligations" means: (i) securities that are
direct obligations of the United States of America for the payment of which
its full faith and credit are pledged; or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any such U.S. Government Obligation or a specific
payment of principal of or interest on any such U.S. Government Obligation
held by such custodian for the account of the Holder of such depository
receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the Holder of
such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or a specific payment of
principal or interest on any such U.S. Government Obligation held by such
custodian for the account of the Holder of such depository receipt.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date the number of years obtained by dividing (i) the
sum of the products obtained by multiplying (A) the amount of each then
remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect
thereof, by (B) the number of years (calculated to the nearest one-twelfth)
that will elapse between such date and the making of such payment, by (ii)
the then outstanding principal amount of such Indebtedness.
"Wholly-Owned Subsidiary" means any Subsidiary, all of the
outstanding Equity Interests (except directors' qualifying shares or shares
required to be held by foreign nationals, in each case to the extent
mandated by applicable law) of which are owned, directly or indirectly, by
the Company.
"Working Capital Facility" means one or more working capital
facilities having a maximum aggregate principal amount of no more than the
difference between $20,000,000 and the sum of the outstanding Indebtedness
under the HCFP Loan Documents and Convertible Loan Documents if any,
including any related notes, guarantees (by Subsidiaries of the Company or
otherwise), collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, restated, modified,
renewed, refunded, replaced or refinanced (in each case, in whole or in
part, and without limitation as to amount, terms, conditions, covenants and
other provisions), with the same or other agents and lenders, in whole or
in part, from time to time and any agreement (and related documents)
governing Indebtedness incurred to refinance or refund (in whole or in
part) borrowings and commitments then outstanding or permitted to be
outstanding under such credit facilities or a successor Working Capital
Facility, whether by the same or other agent lender or group of lenders.
Section 1.2 Other Definitions.
The definitions of the following terms may be found in the sections
indicated as follows:
Term Defined in Section
"Affiliate Transaction" . . . . . . . . . . . . . . 4.12
"Agent Members" . . . . . . . . . . . . . . . . . . 2.1
"Covenant Defeasance" . . . . . . . . . . . . . . . 9.3
"DTC" . . . . . . . . . . . . . . . . . . . . . . . 2.3
"Event of Default". . . . . . . . . . . . . . . . . 6.1
"Excess Proceeds" . . . . . . . . . . . . . . . . . 4.23
"Excess Proceeds Offer" . . . . . . . . . . . . . . 4.23
"Legal Defeasance". . . . . . . . . . . . . . . . . 9.2
"Noteholder" ("Holder") . . . . . . . . . . . . . . 1.1
"Paying Agent". . . . . . . . . . . . . . . . . . . 2.3
"Registrar" . . . . . . . . . . . . . . . . . . . . 2.3
Section 1.3 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the portion
of such provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by reference in and
made a part of this Indenture. The following TIA terms used in this
Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture securityholder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor on this Indenture securities" means the Company, the
Guarantors or any other obligor on the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by SEC rule
have the meanings therein assigned to them.
Section 1.4 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether defined
expressly or by reference;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) words used herein implying any gender shall apply to every
gender; and
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
Subdivision, unless expressly stated otherwise.
ARTICLE 2
THE NOTES
Section 2.1 Dating; Incorporation of Form in Indenture.
The Notes and the Trustee's certificate of authentication with respect
thereto shall be substantially in the form of Exhibit A hereto. The Notes
may have such notations, legends or endorsements as are 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.
Notes issued in global form shall be substantially in the form of
Exhibit A attached hereto (including the Global Note Legend and the
"Schedule of Exchanges in the Global Note" attached thereto). Notes issued
in certificated form shall be substantially in the form of Exhibit A
attached hereto (but without the Global Note Legend 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, at the direction of the Trustee, by the Note
Custodian, in accordance with instructions given by the Holder thereof as
required by Section 2.6 hereof.
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 Cedel Bank" and "Customer Handbook" of Cedel Bank
shall be applicable to transfers of beneficial interests in the Global
Notes that are held by the Members of, or participants in, the Depositary
("Agent Members") through Euroclear or Cedel Bank.
Section 2.2 Execution and Authentication.
The Notes shall be executed on behalf of the Company by two Officers
of the Company or an Officer and an Assistant Secretary of the Company.
Such signatures may be either manual or facsimile.
If an Officer whose signature is on a Note no longer holds that office
at the time the Trustee authenticates the Note or at anytime thereafter,
the Note shall be valid nevertheless.
A Note shall not be valid until the Trustee manually signs the
certificate of authentication on the Note. Such signature shall be
conclusive evidence that the Note has been authenticated under this
Indenture.
The Trustee or an authenticating agent shall authenticate Notes for
original issue in the aggregate principal amount of $80,000,000 upon a
Company Request. The aggregate principal amount of Notes outstanding at
any time may not exceed such amount except as provided in Section 2.7
hereof. The Notes shall be issuable only in registered form without
coupons and only in denominations of $1,000 and integral multiples thereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by such agent. Such authenticating
agent shall have the same right as the Trustee in dealing with the Company
or an Affiliate. Notwithstanding the foregoing, only the Trustee may
authenticate any replacement Note authenticated pursuant to Section 2.7.
Section 2.3 Registrar and Paying Agent.
The Company shall appoint a registrar, which shall maintain an office
or agency where Notes may be presented for registration of transfer or for
exchange ("Registrar"), and a paying agent, which shall maintain an office
or agency where Notes may be presented for payment ("Paying Agent"), and
shall maintain an office or agency where notices and demands to or upon the
Company in respect of the Notes and this Indenture may be served, each
located in New York, New York. 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. Neither the
Company nor any Affiliate may act as Paying Agent. The Company may change
any Paying Agent, Registrar or co-registrar without notice to any
Noteholder.
The Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to such Agent.
The Company shall notify the Trustee of the name and address of any such
Agent. If the Company fails to maintain a Registrar or Paying Agent, or
agent for service of notices and demands, or fails to give the foregoing
notice, the Trustee shall act as such and shall be entitled to appropriate
compensation pursuant to Section 7.7. The Company initially appoints the
Trustee as Registrar, Paying Agent and agent for service of notices and
demands in connection with the Notes.
The Company initially appoints the Depositary Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
Section 2.4 Paying Agent to Hold Money in Trust.
On or before each due date of the principal of and Interest on any
Notes, the Company shall deposit with the Paying Agent a sum sufficient to
pay such principal and interest so becoming due. Each Paying Agent shall
hold in trust for the benefit of the Noteholders or the Trustee all money
held by the Paying Agent for the payment of principal of or Interest on the
Notes (whether such money has been paid to it by the Company or any other
obligor on the Notes), and the Company and the Paying Agent shall notify
the Trustee of any default by the Company (or any other obligor on the
Notes) in making any such payment. Money held in trust by the Paying Agent
need not be segregated except as required by law and in no event shall the
Paying Agent be liable for any interest on any money received by it
hereunder. The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee, and the Trustee may at any time during the
continuance of any Event of Default specified in Section 6.1(1) or (2),
upon written request to a Paying Agent, require such Paying Agent to
forthwith pay to the Trustee all sums so held in trust by such Paying Agent
together with a complete accounting of such sums. Upon doing so, the
Paying Agent shall have no further liability for the money delivered to the
Trustee.
Section 2.5 Noteholder 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 Noteholders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee in writing on or before the fifth Business Day
before each Interest Payment Date, as of the relevant record 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 Noteholders, including the aggregate principal amount of Notes
held by each such Noteholder.
Section 2.6 Transfer and Exchange
(a) Transfers Subject to Indenture. Holders of the Notes may
transfer or exchange Notes in accordance with this Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents, and to pay any taxes and fees required
by law or permitted by this Indenture. The Registrar is not required to
transfer or exchange any Note selected for redemption. Also, the Registrar
is not required to transfer or exchange any Note for a period of 15 days
before selection of the Notes to be redeemed.
(b) Transfer and Exchange of Global Notes. A Global Note may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global
Notes will be exchanged by the Company for Certificated Notes if: (i) the
Company delivers to the Trustee 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 90 days
after the date of such notice from the Depositary; or (ii) the Company in
its sole discretion determines that the Global Notes (in whole but not in
part) should be exchanged for Certificated Notes and delivers a written
notice to such effect to the Trustee. Upon the occurrence of either of the
events in (i) or (ii) above, Certificated Notes shall be issued in such
names as the Depositary or the Company shall instruct the Trustee. Global
Notes also may be exchanged or replaced, in whole or in part, as provided
in Sections 2.7 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 Section 2.7 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 2.6(b), however,
beneficial interests in a Global Note may be transferred and exchanged as
provided in Section 2.6(c), (d) or (e) hereof.
(c) 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 (i) or (ii) below,
as applicable, as well as one or more of the other following subparagraphs
as applicable:
(i) Transfer of Beneficial Interests in the Same Global
Note. Beneficial interests in any Global Note may be transferred only to
Persons who take delivery thereof in the form of a beneficial interest in a
Global Note. No written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this
Section 2.6(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers and exchanges
of beneficial interests (other than a transfer of a beneficial interest in
a Global Note to a person who takes delivery thereof in the form of a
beneficial interest in the same Global Note), the transferor of such
beneficial interest must deliver to the Registrar either (A)(1) a written
order from a Participant or an Indirect Participant given to the Depositary
in accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global Note
in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to be
credited with such increase or (B)(1) 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
Certificated 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 Certificated Note shall be registered to effect the transfer or
exchange referred to in (1) above. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global
Notes contained in this Indenture, the Notes and otherwise applicable under
the Securities Act, the Trustee shall adjust the principal amount of the
relevant Global Note(s) pursuant to Section 2.6(h) hereof.
(d) Transfer or Exchange of Beneficial Interests for
Certificated Notes. If any Holder of a beneficial interest in a Global
Note proposes to exchange such beneficial interest for a Certificated Note
or to transfer such beneficial interest to a person who takes delivery
thereof in the form of a Certificated Note, then, upon satisfaction of the
conditions set forth in Section 2.6(c)(ii) hereof, the Trustee shall cause
the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.6(g) hereof, and the Company shall
execute and the Trustee shall authenticate and deliver to the Person
designated in the instructions a Certificated Note in the appropriate
principal amount. Any Certificated Note issued in exchange for a
beneficial interest pursuant to this Section 2.6(d) 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 Certificated Notes to the
Persons in whose names such Notes are so registered.
(e) Transfer and Exchange of Certificated Notes for Beneficial
Interests. A Holder of a Certificated Note may exchange such Note for a
beneficial interest in a Global Note or transfer such Certificated Notes to
a Person who takes delivery thereof in the form of a beneficial interest in
a Global Note at any time. Upon receipt of a request for such an exchange
or transfer, the Trustee shall cancel the applicable Certificated Note and
increase or cause to be increased the aggregate principal amount of one of
the Global Notes
(f) Transfer and Exchange of Certificated Notes for Certificated
Notes. Upon request by a Holder of Certificated Notes and such Holder's
compliance with the provisions of this Section 2.6(f), the Registrar shall
register the transfer or exchange of Certificated Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present
or surrender to the Registrar the Certificated 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,
pursuant to the provisions of this Section 2.6(f). A Holder of
Certificated Notes may transfer such Notes to a Person who takes delivery
thereof in the form of a Certificated Note. Upon receipt of a request for
such a transfer, the Registrar shall register the Certificated Notes
pursuant to the instructions from the Holder thereof.
(g) Cancellation and/or Adjustment of Global Notes. At such
time as all beneficial interests in a particular Global Note have been
exchanged for Certificated Notes or a particular Global Note has been
redeemed, repurchased or canceled in whole and not in part, each such
Global Note shall be returned to or retained and canceled by the Trustee in
accordance with Section 2.10 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 Certificated 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. If appropriate, in accordance with Section 2.2
hereof, the Trustee shall authenticate one or more Global Notes in an
aggregate principal amount equal to the principal amount of beneficial
interests so transferred.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes and
Certificated Notes upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a Holder of a
beneficial interest in a Global Note or to a Holder of a Certificated 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.
(iii) 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.
(iv) All Global Notes and Certificated Notes issued
upon any registration of transfer or exchange of Global Notes or
Certificated 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 Certificated Notes surrendered upon such
registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange Notes during a period beginning at
the opening of business 15 days before the day of any selection of Notes
for redemption under Section 3.2 hereof and ending at the close of business
on the day of selection, (B) to register the transfer of or to exchange any
Note so selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part or (C) to register the transfer
of or to exchange a Note between a record date and the next succeeding
Interest Payment Date.
(vi) 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.
(vii) The Trustee shall authenticate Global Notes and
Certificated Notes in accordance with the provisions of Section 2.2 hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this Section
2.6 to effect a transfer or exchange may be submitted by facsimile.
(i) Neither the Company nor the Trustee will be liable for any
delay by the Global Note Holder or the Depositary in identifying the
beneficial owners of Notes and the Company and the Trustee may conclusively
rely on, and will be protected in relying on, instructions from the Global
Note Holder or the Depositary for all purposes.
Section 2.7 Replacement Notes.
If a mutilated Note is surrendered to the Registrar or Trustee or if
the Holder of a Note presents evidence to the satisfaction of the Company
and the Trustee that the Note has been lost, destroyed or wrongfully taken
and of the ownership thereof, the Company shall issue and the Trustee shall
authenticate a replacement Note if the Holder of such Note furnishes to the
Company and the Trustee evidence reasonably acceptable to them of the
ownership and destruction, loss or theft of such Note. An indemnity bond
may be required by the Company or the Trustee that is sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee
or any Agent from any loss which any of them may suffer if a Note is
replaced. The Company and the Trustee each may charge for its expenses
(including reasonable attorneys' fees and expenses) in replacing a Note.
Every replacement Note is an additional obligation of the Company.
Section 2.8 Outstanding Notes.
Notes outstanding at any time are all Notes authenticated by the
Trustee except for those canceled by it, those delivered to it for
cancellation, and those described in this Section 2.8 as not outstanding.
If a Note is replaced pursuant to Section 2.7, it ceases to be
outstanding until the Company and the Trustee receive proof satisfactory to
each of them that the replaced Note is held by a bona fide purchaser in
whose hands such Obligation is a legal, valid and binding Obligation of the
Company.
If a Paying Agent holds on a Redemption Date or the Maturity Date
money sufficient to pay the principal of, premium, if any, and all accrued
interest with respect to Notes payable on that date and is not prohibited
from paying such money to the Holders thereof pursuant to the terms of this
Indenture, then on and after that date such Notes cease to be outstanding
and interest on them ceases to accrue.
Subject to Section 12.6, a Note does not cease to be outstanding
solely because the Company or an Affiliate holds the Note.
Section 2.9 Temporary Notes.
Until definitive Notes are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Notes. Temporary Notes shall
be substantially in the form, and shall carry all rights, benefits and
privileges, of definitive Notes but may have variations that the Company
considers appropriate for temporary Notes. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive Notes
in exchange for temporary Notes presented to it.
Section 2.10 Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Notes surrendered to them for transfer, exchange or payment.
The Trustee shall cancel and retain or, upon written request of the
Company, may destroy (subject to the record-retention requirements of the
Exchange Act) or return to the Company in accordance with its normal
practice, all Notes surrendered for transfer, exchange, payment or
cancellation and if such Notes are destroyed, deliver a certificate of
destruction to the Company unless the Company instructs the Trustee in
writing to deliver the Notes to the Company. Subject to Section 2.7
hereof, the Company may not issue new Notes to replace Notes in respect of
which it has previously paid all principal, premium and interest accrued
thereon, or delivered to the Trustee for cancellation.
Section 2.11 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted amounts, plus (to the extent permitted by law) any
interest payable on defaulted amounts pursuant to Section 4.1 hereof, to
the Persons who are Noteholders on a subsequent special record date. The
Company shall fix the special record date and payment date in a manner
satisfactory to the Trustee and provide the Trustee at least 20 days notice
of the proposed amount of default interest to be paid and the special
payment date. At least 15 days before the special record date, the Company
shall mail or cause to be mailed to each Noteholder at his address as it
appears on the Notes register maintained by the Registrar a notice that
states the special record date, the payment date (which shall be not less
than five nor more than ten days after the special record date), and the
amount to be paid. In lieu of the foregoing procedures, the Company may pay
defaulted interest in any other lawful manner satisfactory to the Trustee.
Section 2.12 Deposit of Moneys. .
Prior to 10:00 a.m., New York City time, on each Interest Payment Date
and the Maturity Date, the Company shall have deposited with the Paying
Agent in New York, New York, or such other location as shall be designated
by the Paying Agent, in immediately available funds money sufficient to
make cash payments, if any, due on such Interest Payment Date or Maturity
Date, as the case may be, in a timely manner which permits the Trustee to
remit payment to the Holders on such Interest Payment Date or Maturity
Date, as the case may be. Payments in respect of the Global Notes
(including principal and interest) shall be made by wire transfer of
immediately available funds to the accounts specified by the Holder of such
Global Note. With respect to Certificated Notes, the Company will make all
payments of principal and interest by wire transfer of immediately
available funds to the accounts specified by the Holders thereof or, if no
such account is specified, by mailing a check to each such Holder's
registered address.
Section 2.13 CUSIP Number.
The Company in issuing the Notes may use a "CUSIP" number (or
numbers), and if so, the Trustee shall use the CUSIP number(s) in notices
of redemption or exchange as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness
or accuracy of the CUSIP number(s) printed in the notice or on the Notes,
and that reliance may be placed only on the other identification numbers
printed on the Notes. The Company will promptly notify in writing the
Trustee of any such CUSIP number used by the Company in connection with the
Notes and any change in such CUSIP number.
Section 2.14 Wire Payments to Holders.
Notwithstanding any provisions of this Indenture and the Notes to the
contrary, at the request of a Holder, all payments with respect to any of
the Notes, may be made by the Paying Agent upon receipt from the Company of
immediately available funds prior to 11:30 a.m., New York City time,
directly to the Holder of such Note by wire transfer of immediately
available funds to the accounts specified by the Holder; provided, however,
that no such payment in immediately available funds shall be made to any
Holder of Certificated Notes under this Section 2.14 unless such Holder has
delivered written instructions to the Trustee prior to the relevant record
date for such payment requesting that such payment will be so made and
designating the bank account to which such payments shall be so made and in
the case of payments of principal, surrenders the Note to the Trustee in
exchange for a Note or Notes aggregating the same principal amount as the
unredeemed principal amount of the Notes surrendered. The Trustee shall be
entitled to rely on the last instruction delivered by the Holder pursuant
to this Section 2.14 unless a new instruction is delivered prior to the
relevant record date for a payment date. The Company will indemnify and
hold the Trustee harmless against any loss, liability or expense (including
attorneys' fees and expenses) resulting from any act or omission to act on
the part of the Company or any such Holder in connection with this Section
2.14 or which the Paying Agent may incur as a result of making any payment
in accordance with this Section 2.14, other than acts or omissions
constituting negligence, gross negligence or willful misconduct.
ARTICLE 3
REDEMPTION
Section 3.1 Optional Redemption.
The Notes will be subject to redemption, in whole but not in part, at
the option of the Company, at a redemption price equal to one hundred
percent (100%) of the principal amount of the Notes plus accrued interest
to the Redemption Date (the "Redemption Price").
Section 3.2 Notices to Trustee Upon Optional Redemption.
If the Company elects to redeem the Notes pursuant to this Indenture,
it shall notify the Trustee and the Paying Agent in writing of its election
to redeem the Notes and whether it wants the Trustee to give notice of
redemption to the Holders (at the Company's expense). The Company shall
notify the Trustee and the Paying Agent at least 45 days but not more than
90 days before the Redemption Date. Any such notice may be canceled at any
time prior to notice of such redemption being mailed to any Holder and
shall thereby be void and of no effect.
Section 3.3 Notice of Redemption.
The Company shall mail a notice of redemption by first class mail to
each Noteholder, with a copy to the Trustee, at least 30 days but not more
than 45 days before the Redemption Date. At the Company's request, the
Trustee shall give notice of redemption in the Company's name and at the
Company's expense. Each notice for redemption mailed to Noteholders and
the Trustee shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that the Notes must be surrendered to the Paying Agent at the
address specified in the notice in order to collect the Redemption Price;
(5) that, unless the Company defaults in paying the Redemption Price,
interest on the Notes ceases to accrue on and after the Redemption Date and
the only remaining right of the Noteholders is to receive payment of the
Redemption Price upon surrender to the Paying Agent of the Notes redeemed;
and
(6) the CUSIP number, if any, relating to the Notes.
Section 3.4 Effect of Notice of Redemption or Sale.
Once the notice of redemption or Sale described in Section 3.3 is
mailed, the outstanding Notes become due and payable on the Redemption Date
and at the Redemption Price. Failure to mail any such notice or any defect
in the mailing thereof in respect of any Note shall not affect the validity
of the redemption of any other Note. Upon surrender to the Paying Agent,
such Redemption Price shall be paid out on the Notes provided that if a
Redemption Date is a Legal Holiday, payment shall be made on the next
succeeding Business Day and no interest shall accrue for the period from
such Redemption Date to such succeeding Business Day.
Section 3.5 Deposit of Redemption Price.
On or prior to 10:00 A.M., New York City time on the Redemption Date,
the Company shall deposit with the Paying Agent in immediately available
funds money sufficient to pay the Redemption Price. On and after the
Redemption Date, if money sufficient to pay the Redemption Price shall have
been made available in accordance with the preceding sentence, the Notes
will cease to accrue interest and the only right of the Noteholders will be
to receive payment of the Redemption Price. If any Note called for
redemption shall not be so paid, interest will be paid, from the Redemption
Date until the Redemption Price is paid, on the unpaid principal of the
Note and interest, if any, not paid on such unpaid principal, in each case,
at the rate and in the manner provided in the Notes.
ARTICLE 4
COVENANTS
Section 4.1 Payment of Indebtedness.
The Company shall pay the principal of and interest on the Notes and
all other Obligations under this Indenture and the Security Documents
whether now existing or hereafter arising on the dates and in the manner
provided in the Notes, this Indenture or any other relevant instrument or
document. An installment of principal or interest shall be considered paid
on the date it is due if the Trustee or Paying Agent holds on that date
money designated for and sufficient to pay such installment. All payments
hereunder shall be due and payable in New York, New York or as otherwise
directed by a Holder.
Section 4.2 Reports.
At all times when the Company is required or permitted voluntarily to
file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act or
this Indenture is qualified under the TIA, the Company (at its own expense)
shall file with the SEC and shall file with the Trustee within 15 days
after it files them with the SEC copies of the annual reports, quarterly
reports and the information, documents, and other reports (or copies of
such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) to be filed pursuant to Section 13 or 15(d) of the
Exchange Act. If the Company is not subject to the requirements of such
Section 13 or 15(d) of the Exchange Act and not permitted to voluntarily
file and this Indenture has not been qualified under the TIA, the Company
(at its own expense) shall file with the Trustee and mail or cause the
Trustee to mail to the Holders at their addresses set forth in the register
of Securities, within 15 days after it would have been required to file
such information with the SEC, all information and financial statements,
including any notes thereto and with respect to annual reports, quarterly
reports, an auditors' report by an accounting firm of established national
reputation, and a "Management's Discussion and Analysis of Financial
Condition and Results of Operations," both comparable to the disclosure
that the Company would have been required to include in such annual
reports, quarterly reports, information, documents or other reports, as if
the Company was subject to the requirements of such Section 13 or 15(d) of
the Exchange Act, in each case in the form that would have been required by
the SEC. Upon qualification of this Indenture under the TIA, the Company
shall also comply with the provisions of TIA 314(a).
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 4.3 Waiver of Stay, Extension or Usury Laws.
The Company and each Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead (as a
defense or otherwise) or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive the Company or such Guarantor, as the case
may be, from paying all or any portion of the principal of and interest on
the Notes as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of
this Indenture; and (to the extent that it may lawfully do so) the Company
and each Guarantor hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
Section 4.4 Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90 days
after the end of the Company's fiscal year and within 45 days after the end
of the first, second and third Fiscal Quarters of each fiscal year, an
Officers' Certificate (one of the signers of which shall be the principal
executive officer, principal financial officer or principal accounting
officer of the Company or such Guarantor, as the case may be) stating that
a review of the activities of the Company or such Guarantor, as the case
may be, during such fiscal period has been made under the supervision of
the signing Officers with a view to determining whether the Company or such
Guarantor, as the case may be, 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 or such Guarantor, as the case may be, has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture
and no Default or Event of Default occurred during such period and at the
date of such certificate there is no Default or Event of Default that has
occurred and is continuing or, if such signing Officers do know of such
Default or Event of Default, the certificate shall describe the Default or
Event of Default and its status with particularity. The Officers'
Certificate shall also include all calculations necessary to show covenant
compliance.
(b) So long as (and to the extent) not contrary to the then
current recommendations of the American Institute of Certified Public
Accountants, the year-end financial statements delivered pursuant to
Section 4.2 shall be accompanied by a written statement of the Company's
independent public accountants (who shall be a firm of established national
reputation) stating (A) that their audit examination has included a review
of the terms of this Indenture and the Securities as they relate to
accounting matters, and (B) whether, in connection with their audit
examination, any information has come to their attention which would lead
them to believe that the Company has violated any provisions of this
Article 4 or Article 5 of this Indenture and if such information regarding
a violation of Article 4 or Article 5 of this Indenture has come to their
attention, specifying the nature and period of existence thereof.
(c) The Company and each Guarantor will, so long as any of the
Notes are outstanding, deliver to the Trustee, as soon as possible, and in
any event within 10 days after the Company becomes aware of the occurrence
of any Default or Event of Default, an Officers' Certificate specifying
such Default or Event of Default and what action the Company or such
Guarantor, as the case may be, is taking or proposes to take with respect
thereto.
Section 4.5 Taxes.
(a) The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent: (i) all taxes,
assessments and governmental charges (including withholding taxes and any
penalties, interest and additions to taxes) levied or imposed upon it or
any of its Subsidiaries or any of their respective income, profits or
properties; and (ii) all lawful claims for labor, materials and supplies
that, if unpaid, might by law become a Lien upon the property of it or any
of its Subsidiaries.
(b) The Company shall not in any event be required to pay or
discharge or cause to be paid or discharged any such tax, assessment,
charge or claim if either: (i) the amount, applicability or validity
thereof is being contested in good faith by appropriate proceedings and an
adequate reserve has been established therefor to the extent required by
GAAP; or (ii) the failure to make such payment or effect such discharge
(together with all other such failures) would not have a material adverse
effect on the financial condition or results of operations of the Company
and its Subsidiaries, taken as a whole.
Section 4.6 Limitations on Additional Indebtedness.
(a) The Company and the Guarantors will not, and will not permit
any of their Subsidiaries to, directly or indirectly, incur any
Indebtedness (including Acquired Indebtedness) other than Permitted
Indebtedness.
(b) The Company shall not in any event incur any Indebtedness
which by its terms (or by the terms of any agreement governing such
Indebtedness) is subordinated to any other Indebtedness of the Company
unless such Indebtedness is also by its terms (or by the terms of any
agreement governing such Indebtedness) made expressly subordinated to the
Notes to the same extent and in the same manner as such Indebtedness is
subordinated to such other Indebtedness of the Company.
Section 4.7 Limitations on Acquisitions.
(a) The Company and the Guarantors will not, and will not permit
any of their Subsidiaries to, directly or indirectly, engage in any
Acquisition:
(i) from the period beginning on the Restatement Date and
ending on the day prior to the first anniversary of the Restatement Date;
and
(ii) from the period beginning on the first anniversary of
the Restatement Date and ending on the Maturity Date, unless (a) the
consideration paid by the Company, a Guarantor or a Subsidiary (including
any debt assumed by any of them) in connection with the Acquisition is
$5,000,000 or less, (b) and the Company's Consolidated EBITDA for the four
full Fiscal Quarters (for which internally prepared financial statements
are available) immediately preceding the date on which the Company, such
Guarantor or such Subsidiary enters into a binding agreement to consummate
such Acquisition exceeds $17,000,000.
(b) In no case will the Company and its Subsidiaries engage in
more than three Acquisitions in any twelve-month period.
(c) Subject to the other terms of this Indenture, the Company
and its Subsidiaries shall only engage in Acquisitions of Persons or
divisions or lines of business of Persons who primarily provide home-based
respiratory therapy, home medical equipment, home infusion and home
nursing.
Section 4.8 Limitations on Restricted Payments.
The Company and the Guarantors will not, and will not permit any of
their Subsidiaries to, directly or indirectly, make any Restricted Payment,
except that the provisions of this covenant shall not prohibit: (i) the
agreement or commitment to make any payment or distribution permitted under
this Indenture or the payment or distribution so agreed or committed to be
made as long as such payment or distribution is made on the date of such
agreement or commitment or within 60 days thereof, provided, however, that
on the date of such agreement or commitment such payment would comply with
the foregoing provisions, it being understood that the agreement or
commitment to make such payment or distribution shall constitute Permitted
Indebtedness; (ii) the purchase, redemption or other acquisition or
retirement of any Equity Interests or the making of any principal payment
on, or the purchase, defeasance, repurchase, redemption or other
acquisition or retirement of Subordinated Indebtedness by conversion into,
or by or in exchange for, Equity Interests (other than Disqualified Equity
Interests), or out of, the net cash proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Company) of other Equity
Interests of the Company (other than Disqualified Equity Interests); (iii)
the making of any principal payment on, or the purchase, defeasance,
repurchase, redemption or other acquisition or retirement of Subordinated
Indebtedness in exchange for, by conversion into, or out of the net cash
proceeds of, a substantially concurrent sale or incurrence of Indebtedness
(including Disqualified Equity Interests) (other than any Indebtedness owed
to a Subsidiary) of the Company or a Subsidiary that (1) is contractually
subordinated in right of payment to the Notes to at least the same extent
as, and (2) has a final maturity date later than the final maturity date
of, and has a Weighted Average Life to Maturity at least equal to the
Weighted Average Life to Maturity of, the Subordinated Indebtedness being
paid, purchased, defeased, repurchased, redeemed or otherwise acquired or
retired; (iv) the purchase, redemption or other acquisition or retirement
of any Disqualified Equity Interests by conversion into, or by exchange
for, shares of Disqualified Equity Interests, or out of the net cash
proceeds of the substantially concurrent sale (other than to a Subsidiary
of the Company) of other Disqualified Equity Interests; (v) the purchase,
redemption or other acquisition or retirement for value of any Equity
Interests held by any current or past member of the Company's (or any of
its Subsidiaries') management or board of directors (or the estate, heirs
or legatees of any such individual) pursuant to any management equity
subscription agreement, stock option agreement or other similar agreement;
provided that the aggregate price paid for all such repurchased, redeemed,
acquired or retired Equity Interests shall not exceed $500,000 in any
twelve-month period; provided, however, that in the case of the immediately
preceding clauses (ii), (iii), (iv) and (v), no Default or Event of Default
shall have occurred and be continuing at the time of such Restricted
Payment or would occur as a result thereof; and (vi) Investments made
pursuant to and in compliance with Sections 4.7 and 4.10 of this Indenture.
Section 4.9 Minimum Consolidated EBITDA; Minimum Debt-to-EBITDA Ratio.
(a) The Company will not permit the Consolidated EBITDA of the
Company for each Fiscal Quarter to be less than the corresponding amount
set forth below:
Fiscal Quarter Ending Amount
--------------------- ------
3/31/99 $ 1,528,000
6/30/99 3,796,000
9/30/99 2,843,000
12/31/99 4,833,000
3/31/00 4,250,000
6/30/00 4,250,000
9/30/00 4,250,000
12/31/00 4,250,000
(b) The Company will not permit the ratio of consolidated
Indebtedness of the Company and its Subsidiaries to Consolidated EBITDA of
the Company for the four full Fiscal Quarters ending each date set forth
below to be less than the corresponding ratio set forth below:
Fiscal Quarter Ending Ratio
--------------------- -----
3/31/01 5.00
6/30/01 5.00
9/30/01 5.00
12/31/01 5.00
3/31/02 4.75
6/30/02 4.75
9/30/02 4.75
12/31/02 4.75
3/31/03 4.50
6/30/03 4.50
9/30/03 4.50
12/31/03 4.50
3/31/04 4.25
6/30/04 4.25
9/30/04 and thereafter 4.25
Section 4.10 Limitation on Capital Expenditures.
The Company and the Guarantors will not, and will not permit any of
their Subsidiaries to make or commit to make (by way of the acquisition of
securities of a Person or otherwise) any expenditure in respect of the
purchase or other acquisition of fixed or capital assets (excluding any
such asset acquired in connection with normal replacement and maintenance
programs properly charged to current operations) except for: (i)
expenditures in the ordinary course of business not exceeding, in the
aggregate for the Company and its Subsidiaries, $500,000 for each Fiscal
Quarter during the term of this Indenture, provided that any portion of
such amount if not so expended during the Fiscal Quarter for which it is
permitted may be carried forward to the immediately following Fiscal
Quarter; and (ii) expenditures related to the incurrence of any Capital
Lease Obligation permitted under Section 4.11 of this Indenture. The
foregoing notwithstanding: if (A) the Company is in compliance with Section
4.9; (B) the Indebtedness outstanding pursuant to the Convertible Loan
Documents has been paid off in full; and (C) the amount outstanding under
the Working Capital Facility is less than $10,000,000, then the amount
referenced in clause (i) above shall be increased to the maximum amount
allowed under the Working Capital Facility at the date of the expenditure.
Section 4.11 Limitations on Capital Lease Obligations.
The Company and the Guarantors will not, and will not permit any of their
Subsidiaries to enter into any Capital Lease Obligation except for
obligations in the ordinary course of business not exceeding, in the
aggregate for the Company and its Subsidiaries, $1,200,000 for each Fiscal
Quarter during the term of this Indenture, provided that any portion of
such amount if not so expended during the Fiscal Quarter for which it is
permitted may be carried forward to the immediately following Fiscal
Quarter. The foregoing notwithstanding: if (A) the Company is in
compliance with Section 4.9; (B) the Indebtedness outstanding pursuant to
the Convertible Loan Documents has been paid off in full; and (C) the
amount outstanding under the Working Capital Facility is less than
$10,000,000, then the amount referenced above shall be increased to the
maximum amount allowed under the Working Capital Facility at the date of
the expenditure.
Section 4.12 Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets or property or
the rendering of services) with any Affiliate of the Company (including
entities in which the Company or any Subsidiary thereof owns a minority
interest) (each such transaction, an "Affiliate Transaction") or extend,
renew, waive or otherwise modify the terms of any Affiliate Transaction
entered into prior to the Restatement Date other than Affiliate
Transactions: (i) that are Intercompany Transactions; or (ii) the terms of
which are fair and reasonable to the Company or such Subsidiary, as the
case may be, and the terms of such Affiliate Transaction are at least as
favorable as the terms which could be obtained by the Company or such
Subsidiary, as the case may be, in a comparable transaction made on an
arm's-length basis between unaffiliated parties. In an Affiliate
Transaction or series of related Affiliate Transactions involving an amount
or having a value in excess of $100,000 that are not Intercompany
Transactions, the Company or such Subsidiary, as the case may be, must
obtain a resolution of the Board of Directors of the Company or such
Subsidiary as the case may be, certifying that such Affiliate Transaction
or series of related Affiliate Transactions complies with clause (ii)
above.
(b) Section 4.12(a) shall not apply to: (i) any transaction with
any current or former officer, director or employee of the Company (in his
or her capacity as such) (or the estate, heirs or legatees of any such
individual) entered into in the ordinary course of business, including
entering into employment or termination agreements, indemnification
agreements and compensation and employee benefit plans; and (ii) Restricted
Payments to the extent not prohibited by Section 4.8 and other transactions
specifically excluded from the definition of "Restricted Payments" by
reason of exceptions set forth in such definition.
Section 4.13 Limitations on Liens.
The Company will not, and will not permit any of its Subsidiaries to,
create, assume, incur or otherwise cause or permit to exist or become
effective any Liens (other than Permitted Liens) upon: (i) any property or
asset of the Company or any Subsidiary of the Company, whether owned on the
Restatement Date or acquired after the Restatement Date; (ii) any shares of
stock or debt of any Subsidiary, now owned or hereafter acquired; and (iii)
any income or profits therefrom, or assign or otherwise convey any right to
receive income or profits thereon unless: (a) if such Lien secures Senior
Indebtedness, the Notes and the Guarantee are secured on an equal and
ratable basis with the obligation so secured until such time as such
obligation is no longer secured by a Lien; or (b) if such Lien secures
Subordinated Indebtedness, such Lien shall be subordinated to a Lien
granted to the Holders on the same collateral as that securing such Lien to
the same extent as such Subordinated Indebtedness is subordinated to the
Notes or the Guarantee.
Section 4.14 Limitations on Guarantees; Additional Guarantees.
(a) Except as permitted under Section 4.6, the Company and the
Guarantors will not, and will not permit any of their Subsidiaries to
create, incur, assume or suffer to exist any Guarantee Obligation except:
(i) Guarantee Obligations in existence on the Restatement Date; (ii)
Guarantee Obligations in favor of HCFP Funding, Inc. pursuant to the HCFP
Loan Documents; (iii) Guarantee Obligations pursuant to the Convertible
Loan Documents in favor of the Lenders party thereto; (iv) guarantees made
in the ordinary course of its business by the Company of obligations of any
of the Guarantors, which obligations are otherwise permitted under this
Indenture; and (v) the Guarantee.
(b) If, after the Restatement Date, the Company or any of its
Subsidiaries organized under the laws of the United States or any state
thereof (a "domestic Subsidiary") shall acquire or create another domestic
Subsidiary, then such newly acquired or created domestic Subsidiary will be
required to execute a supplemental indenture to become a Guarantor in form
and substance reasonably satisfactory to the Trustee (and with such
documentation relating thereto as the Trustee shall require, including,
without limitation, an Opinion of Counsel as to the enforceability of such
supplemental indenture and Guarantee).
Section 4.15 Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on
the ability of any of its Subsidiaries to: (a) pay dividends or make any
other distributions in cash or otherwise to the Company or any Subsidiary
on its Equity Interests; (b) pay any Indebtedness owed to the Company or
any Subsidiary; (c) make loans or advances to the Company or any Subsidiary
thereof; (d) transfer any of its properties or assets to the Company or any
Subsidiary thereof (other than customary restrictions on transfer of
property subject to a Permitted Lien under the term of the agreements
creating such Permitted Lien (other than a Lien on cash not constituting
proceeds of non-cash property subject to a Permitted Lien) which would not
materially adversely affect the Company's ability to satisfy its
obligations under the Notes); or (e) guarantee the Notes, except, in each
case, for such encumbrances or restrictions existing under or contemplated
by or by reason of: (i) the Notes or this Indenture; (ii) any restrictions
existing under or contemplated by the HCFP Loan Documents, the Convertible
Loan Documents and any agreements evidencing the Working Capital Facility,
and any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings thereof, provided
that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are no more
restrictive with respect to such dividend and other payment restrictions
affecting Subsidiaries than those contained in the HCFP Loan Documents, the
Convertible Loan Documents and any agreement evidencing the Working Capital
Facility; (iii) any restrictions with respect to a Subsidiary of the
Company that was not a Subsidiary of the Company on the Restatement Date,
which are in existence at the time such Person becomes a Subsidiary of the
Company (but not created in connection with or contemplation of such Person
becoming a Subsidiary of the Company and which encumbrance or restriction
is not applicable to any Person or the property or assets of any Person
other than such Person or the property or assets of such Person so
acquired); (iv) any agreement that governs Refinancing Indebtedness,
provided, however, that the terms and conditions of any such restrictions
are not materially less favorable in the aggregate to the Holders of the
Notes than those under or pursuant to the agreement evidencing the
Indebtedness being refinanced or replaced; (v) customary non-assignment
provisions in any contract or licensing agreement entered into by the
Company or any Subsidiary of the Company in the ordinary course of business
or in any lease governing any leasehold interest of the Company or a
Subsidiary; (vi) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the nature
described in clause (d) above on the property so acquired; (vii)
restrictions existing by reason of or under Indebtedness existing on the
Restatement Date; (viii) any restrictions existing under any agreement
entered into with respect to the sale or disposition of all or
substantially all the Equity Interests or assets of a Subsidiary provided
that the disposition or sale is governed by the restrictions described
under Section 4.22; or (ix) restrictions contained in agreements governing
other Indebtedness permitted to be incurred in accordance with this
Indenture provided that the restrictions are not materially more
restrictive in the aggregate than the restrictions contained in this
Indenture.
Section 4.16 Restriction on Sale and Issuance of Subsidiary Interests.
Except as permitted by Section 4.22, the Company: (i) will not, and
will not permit any Subsidiary to, transfer, convey, sell, lease or
otherwise dispose of any Equity Interests of any Subsidiary to any Person
other than the Company or a Wholly-Owned Subsidiary (except directors'
qualifying shares or shares required to be held by foreign nationals, in
each case to the extent mandated by applicable law); and (ii) will not
permit any Subsidiary to issue any of its Equity Interests (except
directors' qualifying shares or shares required to be held by foreign
nationals, in each case to the extent mandated by applicable law) to any
Person other than to the Company or a Wholly-Owned Subsidiary.
Section 4.17 Limitation on Sale and Lease-Back Transactions.
The Company will not, and will not permit any of its Subsidiaries to,
enter into any arrangement with any Person providing for the leasing by the
Company or any Subsidiary of real or personal property which has been or is
to be sold or transferred by the Company or such Subsidiary to such Person
or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such property or rental obligations of the
Company or such Subsidiary (a "Sale and Lease-Back Transaction"), unless:
(i) the consideration received in such Sale and Lease-Back Transaction is
at least equal to the fair market value of the property sold; and (ii) the
net cash proceeds received by the Company or its Subsidiaries from the Sale
and Lease-Back Transaction are applied in accordance with Section 4.22.
Section 4.18 Line of Business; Cost Based Business Limitation.
(a) The Company will not, and will not permit any of its
Subsidiaries to, engage as a material part of its business in any business
other than the business conducted by the Company and its Subsidiaries as of
the Restatement Date or any other business determined by the Company's
Board of Directors, in good faith, to be reasonably related to the
foregoing.
(b) The Company will not permit Consolidated Net Revenues
attributable to Cost Based Businesses to constitute more than 5% of
Consolidated Net Revenue in any Fiscal Quarter.
Section 4.19 Limitation on Status as Investment Company.
Neither the Company nor any of its Subsidiaries shall take any action
or suffer to exist any condition that would require the Company or any of
its Subsidiaries to register as an "investment company" (as that term is
defined in the Investment Company Act of 1940, as amended), or to otherwise
become subject to regulation as an investment company.
Section 4.20 Payments for Consent.
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Securities unless such consideration is
offered to be paid or agreed to be paid to all Holders of the Notes which
so consent, waive or agree to amend within any time period set forth in the
solicitation documents relating to such consent, waiver or agreement.
Section 4.21 Corporate Existence.
Subject to Article 5 and Section 11.4 hereof, the Company shall do or
cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence, and the corporate, partnership or other
existence of each Subsidiary, in accordance with the respective
organizational documents (as the same may be amended from time to time) of
each Subsidiary and the rights (charter and statutory), licenses and
franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders.
Section 4.22 Limitation on Certain Asset Sales.
(a) The Company will not, and will not permit any of its
Subsidiaries to, consummate an Asset Sale unless (i) the Company or such
Subsidiary, as the case may be, receives consideration at the time of such
sale or other disposition at least equal to the fair market value thereof
(as reasonably determined for Asset Sales in excess of $1,000,000 in good
faith by its Board of Directors); (ii) not less than 75% of the
consideration received by the Company or the Subsidiary, as the case may
be, from such Asset Sale is in the form of cash or Temporary Cash
Investments; provided that the amount of any liabilities (as shown on the
Company's or a Subsidiary's most recent balance sheet) of the Company or a
Subsidiary (other than contingent liabilities and liabilities that are by
their terms subordinated to the Notes or any Guarantee thereof) that are
assumed by the transferee of any such assets or an Affiliate thereof
pursuant to a customary novation agreement that releases the Company or
such Subsidiary from further liability; and (iii) the Asset Sale Proceeds
received by the Company or such Subsidiary are applied: (A) to repay and
permanently reduce outstanding Senior Indebtedness under the HCFP Loan
Documents, the Convertible Loan Documents, the Working Capital Facility,
other secured Senior Indebtedness or any other Senior Indebtedness that has
a maturity date earlier than the maturity of the Notes and to permanently
reduce the commitments in respect thereof to the extent required by such
Senior Indebtedness, provided, however, that such repayment and commitment
reduction occurs no later than 30 days after the date of the Asset Sale;
and (B) as Excess Proceeds as set forth below. Pending the final
application of any such Asset Sale Proceeds, the Company may temporarily
reduce Senior Indebtedness or otherwise invest such Asset Sale Proceeds in
any manner that is not prohibited by this Indenture. Any Asset Sale
Proceeds that are not applied as permitted by clause (iii)(A) of the
preceding sentence shall constitute "Excess Proceeds." If the aggregate
amount of Excess Proceeds received from any Asset Sales consummated on or
after the Restatement Date exceed $500,000, the Company shall offer (an
"Excess Proceeds Offer") to purchase from all Holders of Notes, pursuant to
procedures set forth in this Indenture and if the Company is required to do
so under the terms of any other Senior Indebtedness, to purchase from the
Holders of such other Senior Indebtedness the maximum principal amount of
Notes and principal of such other Senior Indebtedness that may be purchased
with such Excess Proceeds at a purchase price in cash equal to 100% of the
principal amount thereof plus accrued interest, if any, to the date of the
purchase. To the extent that the purchase price of Notes and principal of
such other Senior Indebtedness tendered pursuant to such Excess Proceeds
Offer is less than the amount of Excess Proceeds, the Company may use such
portion of the Excess Proceeds that is not used to purchase Notes or such
other Senior Indebtedness so tendered for general corporate purposes not
inconsistent with the Notes or this Indenture. If the aggregate purchase
price of Notes and principal of such other Senior Indebtedness tendered
pursuant to such Excess Proceeds Offer is more than the amount of the
Excess Proceeds, the Notes and principal of such other Senior Indebtedness
tendered will be repurchased on a basis pro rata to the amount tendered or
by such other method as the Trustee shall deem fair and appropriate. Upon
the completion of any Excess Proceeds Offer and the closing of any
repurchase of Notes and principal of such other Senior Indebtedness
tendered pursuant to such Excess Proceeds Offer, the amount of Excess
Proceeds shall be deemed to be zero.
(b) If the Company is required to make an Excess Proceeds Offer,
the Company shall mail, within 40 days following the date of the Asset
Sale, a notice to the Holders of the Notes describing the transactions
giving rise to the Excess Proceeds Offer and stating, among other things:
(i) that such Holders have the right to require the Company to apply the
Excess Proceeds to repurchase such Notes at a purchase price in cash equal
to 100% of the principal amount thereof plus accrued and unpaid interest,
if any, to the date of purchase; (ii) the purchase date, which shall be no
earlier than 30 days and not later than 60 days from the date such notice
is mailed; (iii) the instructions, reasonably determined by the Company,
that each Holder of Notes must follow in order to have such Notes
repurchased; and (iv) the calculations used in determining the amount of
Excess Proceeds to be applied to the repurchase of such Notes.
Section 4.23 Change of Control.
(a) Within 30 days of the occurrence of a Change of Control, the
Company shall notify the Trustee in writing of such occurrence and shall
make an offer to purchase (the "Change of Control Offer") all or any
portion (equal to $1,000 or an integral multiple of $1,000) of the
outstanding Notes at a cash purchase price equal to 100% of the principal
amount thereof plus any accrued and unpaid interest, if any, thereon to the
Change of Control Payment Date (as hereinafter defined) (such applicable
purchase price being hereinafter referred to as the "Change of Control
Purchase Price") in accordance with the procedures set forth in this
covenant.
(b) Within 30 days of the occurrence of a Change of Control, the
Company also shall: (i) cause a notice of the Change of Control Offer to be
sent at least once to the Dow Jones News Service or similar business news
service in the United States; and (ii) send by first-class mail, postage
prepaid, to the Trustee and to each Holder of the Notes, at the address
appearing in the register maintained by the Registrar of the Notes, a
notice describing the transactions constituting a Change of Control and
stating:
(1) that the Change of Control Offer is being made pursuant
to this Section 4.23 and that all Notes tendered will be accepted for
payment, subject to the terms and conditions set forth herein;
(2) the Change of Control Purchase Price and the purchase
date (which shall be a Business Day no earlier than 20 Business Days and no
later than 60 days from the date such notice is mailed (the "Change of
Control Payment Date"));
(3) that any Note not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in the payment of the
Change of Control Purchase Price, any Notes accepted for payment pursuant
to the Change of Control Offer shall cease to accrue interest after the
Change of Control Payment Date;
(5) that Holders accepting the offer to have their Notes
purchased pursuant to a Change of Control Offer will be required to
surrender the Notes to the Paying Agent at the address specified in the
notice prior to the close of business on the Business Day preceding the
Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their
acceptance if the Paying Agent receives, not later than the close of
business on the fifth Business Day preceding the Change of Control Payment
Date, a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Notes delivered for
purchase, and a statement that such Holder is withdrawing its election to
have such Notes purchased;
(7) that Holders whose Notes are being purchased only in
part will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered, provided that each Note purchased and
each such new Note issued shall be in an original principal amount in
denominations of $1,000 and integral multiples thereof;
(8) any other reasonable procedures that a Holder must
follow to accept a Change of Control Offer or effect withdrawal of such
acceptance; and
(9) the name and address of the Paying Agent.
(c) On the Change of Control Payment Date, the Company shall, to
the extent lawful: (i) accept for payment all Notes or portions thereof or
beneficial interests under a Global Note tendered pursuant to the Change of
Control Offer; (ii) deposit with the Paying Agent money sufficient to pay
the purchase price of all Notes or portions thereof or beneficial interests
so tendered; and (iii) deliver or cause to be delivered to the Trustee
Notes so accepted together with an Officers' Certificate stating the Notes
or portions thereof tendered to the Company. The Paying Agent shall
promptly: (1) mail to each Holder of Notes so accepted; and (2) cause to be
credited to the respective accounts of the Holders under a Global Note of
beneficial interests so accepted payment in an amount equal to the Change
of Control Purchase Price for such Notes, and the Company shall execute and
issue, and the Trustee shall promptly authenticate and mail to such Holder,
a new Certificated Note equal in principal amount to any unpurchased
portion of the Certificated Notes surrendered and shall issue a new Global
Note equal in principal amount to any unpurchased portion of beneficial
interest so surrendered or shall reflect on such Global Note or a schedule
thereto such change in beneficial interest; provided, however, that each
such new Note shall be issued in an original principal amount in
denominations of $1,000 and integral multiples thereof.
(d) The Change of Control provisions described above will be
applicable whether or not any other provisions of this Indenture are
applicable. The Company will not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control
Offer made by the Company and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer.
Section 4.24 Maintenance of Office or Agency.
The Company shall maintain in the City and State of New York an office
or agency where Notes may be surrendered for registration of transfer or
exchange or for presentation for payment 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
address of the Trustee as set forth in Section 12.2.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations.
The Company shall give prompt written notice to the Trustee of such
designation or rescission and of any change in the location of any such
other office or agency; provided, however, that no such designation or
rescission shall relieve the Company of its obligation to maintain an
office or agency in the City and State of New York for such purposes.
The Company hereby initially designates the Corporate Trust Office of
the Trustee as such office of the Company; provided, however, that no such
designation or rescission shall relieve the Company or its agent of its
obligation to maintain an office or agency in the Borough of Manhattan,
City of New York for such purposes.
Section 4.25 Maintenance of Properties and Insurance; Books and
Records; Compliance with Laws.
(a) The Company shall, and shall cause its Subsidiaries to, at
all times, cause all material properties used or useful to the conduct of
their business, taken as a whole, to be maintained and kept in good
condition, repair and working order (reasonable wear and tear excepted) in
accordance with customary business practices.
(b) The Company and each of its Subsidiaries shall provide or
cause to be provided, for itself and each of their respective Subsidiaries,
insurance (including appropriate self-insurance) that is adequate,
appropriate and customarily both in amount and scope, carried by similar
businesses owning such properties similarly situated. The Company shall
and shall cause each of its Subsidiaries to keep books of record and
account, in which entries shall be made of all material financial
transactions and the assets and business of the Company and its
Subsidiaries as are necessary to permit the Company to prepare financial
statements in accordance with GAAP.
(c) The Company shall and shall cause each of its Subsidiaries to
comply in all material respects with all statutes, laws, ordinances, or
government rules and regulations to which they are subject, non-compliance
with which would materially adversely affect the financial condition of the
Company and its Subsidiaries taken as a whole.
Section 4.26 Maintenance of Government Licenses.
To the extent the Company or any of its Subsidiaries provides goods or
services giving rise to accounts constituting government receivables, the
Company shall, and shall cause its Subsidiaries to, maintain all licenses,
permits, certifications, provider numbers, and approvals and take such
other necessary action as shall entitle such Person to obtain payment or
reimbursement of such account.
Section 4.27 Further Assurance to the Trustee.
The Company shall, upon request of the Trustee, execute and deliver
such further instruments and do such further acts as may reasonably be
necessary or proper to carry out more effectively the provisions of this
Indenture.
Section 4.28 Environmental Compliance.
The Company shall, upon receipt by the Company or any Subsidiary of
written notice from any governmental authority that the Company or any
Subsidiary has violated any applicable environmental laws: (i) promptly
(and in any event within the time period permitted by the applicable
governmental authority) remove or remedy, or cause its Subsidiary to remove
or remedy, such violation, unless the Company in good faith is disputing
such claim of violation by appropriate proceedings promptly commenced and
diligently pursued and such claim does not give rise to or result in the
imposition of any lien against property of the Company or any Subsidiary;
and (ii) promptly deliver to the Trustee and all Holders written notice of
such claim of violation.
Section 4.29 ERISA Requirement.
The Company shall, and shall cause its Subsidiaries to, comply in all
material respects with all requirements of ERISA applicable to it and
furnish to the Trustee as soon as possible and in any event: (i) within
thirty (30) days after an Officer of the Company knows that any reportable
event with respect to any employee benefit plan maintained by the Company
or any Subsidiary that could give rise to termination or the imposition of
any material tax or penalty has occurred, a written statement describing in
reasonable detail such reportable event and any action that the Company or
Subsidiary proposes to take with respect thereto, together with a copy of
the notice of such reportable event given to the PBGC or a statement that
said notice will be filed with the annual report of the United States
Department of Labor with respect to such plan if such filing has been
authorized; (ii) promptly after receipt thereof, a copy of any notice that
the Company or any Subsidiary may receive from the PBGC relating to the
intention of the PBGC to terminate any employee benefit plan or plans of
the Company or any Subsidiary or to appoint a trustee to administer any
such plan; and (iii) within 10 days after a filing with the PBGC pursuant
to Section 412(n) of the Code of a notice of failure to make a required
installment or other payment with respect to a plan, a certificate setting
forth details as to such failure and the action that the Company or its
affected Subsidiary proposes to take with respect thereto, together with a
copy of such notice given to the PBGC.
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.1 Merger, Consolidation or Sale of Assets.
(a) The Company shall not, in a single transaction or series of
related transactions, consolidate or merge with or into, or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of
its assets to, any Person or adopt a Plan of Liquidation, unless:
(1) either (i) the Company shall be the surviving or
continuing corporation, or (ii) the Person (if other than the Company)
formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance, transfer or lease the properties and
assets of the Company substantially as an entirety or, in the case of a
Plan of Liquidation, the Person to which assets of the Company have been
transferred (x) shall be a corporation organized and validly existing under
the laws of the United States or any State thereof or the District of
Columbia, and (y) shall expressly assume, by supplemental indenture (in
form and substance satisfactory to the Trustee) executed and delivered to
the Trustee, the due and punctual payment of the principal of and interest
on all of the Securities and the performance of every covenant of the
Securities and this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction and
the assumption contemplated by clause (y) of paragraph (1) above, the
Company (in the case of clause (i) of paragraph (1) above) or such Person
(in the case of clause (ii) of paragraph (1) above) shall have a
Consolidated Net Worth (immediately after the transaction but prior to any
purchase accounting adjustments relating to such transaction) equal to or
greater than the Consolidated Net Worth of the Company immediately prior to
such transaction;
(3) immediately before and after giving effect to such
transaction and the assumption contemplated by clause (y) of paragraph (1)
above (including giving effect to any Indebtedness and Acquired
Indebtedness incurred or anticipated to be incurred in connection with or
in respect of the transaction), no Default and no Event of Default shall
have occurred or be continuing;
(4) the Company or such Person shall have delivered to the
Trustee (i) an Officers' Certificate and an Opinion of Counsel (which
counsel shall not be in-house counsel of the Company), each stating that
such consolidation, merger, conveyance, transfer or lease or Plan of
Liquidation and, if a supplemental indenture is required in connection with
such transaction, such supplemental indenture, comply with this Article
Five and that all conditions precedent herein provided relating to such
transaction have been satisfied, and (ii) a certificate from the Company's
independent certified public accountants stating that the Company has made
the calculation required by paragraph (2) above in accordance with the
terms of this Indenture; and
(5) neither the Company nor any Subsidiary of the Company
nor such Person, as the case may be, would thereupon become obligated with
respect to any Indebtedness (including Acquired Indebtedness), nor any of
its property or assets subject to any Lien, unless the Company or such
Subsidiary or such Person, as the case may be, could incur such
Indebtedness (including Acquired Indebtedness) or create such Lien under
this Indenture (giving effect to such Person being bound by all the terms
of this Indenture).
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of
one or more Subsidiaries of the Company the Equity Interest of which
constitutes all or substantially all of the properties and assets of the
Company shall be deemed to be the transfer of all or substantially all of
the properties and assets of the Company.
Section 5.2 Successor Person Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company in accordance with Section
5.1, the successor corporation formed by such consolidation or into which
the Company is merged or to which such transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein, and thereafter the
predecessor corporation shall be relieved of all obligations and covenants
under this Indenture and the Notes, except that such predecessor
corporation shall not be so relieved if it retains any material assets
other than the proceeds of the sale of assets.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.1 Events of Default.
An "Event of Default" occurs if:
(1) there is a default in payment of any principal of the
Notes when such principal becomes due and payable;
(2) there is a default for 30 days in the payment of any
interest on the Notes after such interest becomes due and payable;
(3) there is a failure of the Company or its Subsidiaries
to comply with any purchase or payment obligations set forth in Section
4.22 or 4.23 or with Section 4.8 or Section 5.1;
(4) there is a default by the Company or its Subsidiaries
in the observance or performance of any other provision in the Securities
or this Indenture for 30 days after written notice from the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Notes
then outstanding;
(5) there is a default under any agreement, mortgage,
indenture or instrument under which there may be issued or by which there
may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Subsidiaries (or the payment of which is guaranteed
by the Company or any of its Subsidiaries), whether such Indebtedness or
guarantee now exists or is created after the Issue Date, which default (a)
is caused by a failure to pay principal of or premium, if any, or interest
on such Indebtedness at final maturity (a "Payment Default"), or (b)
results in the acceleration of such Indebtedness prior to its express
maturity, provided, however, that defaults under a Capital Lease
Obligations in an aggregate amount of not more than $100,000 shall not be
an Event of Default under this Indenture;
(6) one or more judgments, orders or decrees for the
payment of money which either individually or in the aggregate at any one
time exceed $5,000,000 shall be rendered against the Company or any
Subsidiary by a court of competent jurisdiction and shall remain
undischarged and unbonded for a period (during which execution shall not be
effectively stayed) of 60 consecutive days after such judgment becomes
final and nonappealable;
(7) any Guarantee of a Significant Subsidiary shall be held
in any judicial proceeding to be unenforceable or invalid or shall cease
for any reason to be in full force and effect or any Guarantor that is a
Significant Subsidiary shall deny or disaffirm its obligations under its
Guarantee;
(8) the Company or any Subsidiary pursuant to or within the
meaning of any Bankruptcy Law;
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief
against it in an involuntary case or proceeding,
(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;
(9) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Subsidiary in an involuntary case or proceeding,
(B) appoints a Custodian of the Company or any
Subsidiary or for all or substantially all of the property of the
Company or any Subsidiary, or
(C) orders the liquidation of the Company or any
Subsidiary, and, in each case under this clause (9), the order or
decree remains unstayed and in effect for 60 consecutive days; or
(10) any of the Security Documents ceases to be in full
force and effect or any of the Security Documents ceases to give the
Trustee the Liens, rights, powers and privileges purported to be created
thereby in any material respect.
Subject to the provisions of Sections 7.1 and 7.2, the Trustee shall
not be charged with knowledge of any Default or Event of Default unless
written notice thereof shall have been given to a Trust Officer at the
Corporate Trust Office by the Company or any other Person.
The Trustee may withhold notice to the Holders of the Notes of any
default (except in payment of principal or interest on the Notes or that
resulted from the failure of the Company to comply with the provisions of
Section 4.22 and 4.23) if the Trustee considers it to be in the best
interest of the Holders of the Notes to do so.
Section 6.2 Acceleration.
(a) If an Event of Default (other than an Event of Default with
respect to the Company under Section 6.1(8) or (9)) shall have occurred and
be continuing, then the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Notes then outstanding may declare to be
immediately due and payable the entire principal amount of all the Notes
then outstanding plus accrued interest to the date of acceleration. If an
Event of Default specified in Section 6.1(8) or (9) with respect to the
Company occurs, the principal of and interest on all the Notes shall become
immediately due and payable without any declaration or other act on the
part of the Trustee or any Holders. The Holders of a majority in principal
amount of the Notes by notice to the Trustee may rescind an acceleration
and its consequences if the rescission would not conflict with any judgment
or decree and if all existing Events of Default have been cured or waived
except nonpayment of principal and interest that has become due solely
because of acceleration. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
(b) Upon the occurrence of an Event of Default under Sections
6.1(8) or (9) with respect to the Company, the principal and interest
amount with respect to all of the Notes shall ipso facto become and be
immediately due and payable without any declaration or other act on the
part of the Trustee or the Holders of the Notes.
(c) In the event of a declaration of acceleration of the Notes
because an Event of Default has occurred and is continuing as a result of a
Payment Default on or the acceleration of any Indebtedness described in
Section 6.1(5), the declaration of acceleration of the Notes shall be
automatically rescinded and annulled if such Payment Default is waived or
cured or the holders of such Indebtedness described in such Section 6.1(5)
have rescinded the declaration of acceleration in respect of such
Indebtedness, as appropriate, within 30 days from the date of such
declaration and if (i) the rescission and annulment of the acceleration of
the Notes would not conflict with any judgment or decree of a court of
competent jurisdiction and (ii) all existing Events of Default, except non-
payment of principal and interest, on the Notes that became due solely
because of the acceleration of the Notes, have been cured or waived.
Section 6.3 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect
the payment of principal of and interest on the Notes or to enforce the
performance of any provision of the Securities or this Indenture and make
take any necessary action requested of it as Trustee to settle, compromise,
adjust or otherwise conclude any proceeding to which it is a party.
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 Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy
is exclusive of any other remedy. All available remedies are cumulative to
the extent permitted by law.
Section 6.4 Waiver of Past Defaults and Events of Default.
Subject to Sections 6.7, 8.2 and 12.6 hereof, the Holders of a
majority in principal amount of the Notes then outstanding have the right
to waive any existing or potential future Default or Event of Default or
compliance with any provision of this Indenture or the Notes. 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; but
no such waiver shall extend to any subsequent or other Default or Event of
Default or impair any right consequent to any such subsequent Default or
Event of Default except as specifically contemplated thereby.
Section 6.5 Control by Majority.
The Holders of a majority in principal amount of the Notes then
outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee. The
Trustee, however, may refuse to follow any direction that conflicts with
law or this Indenture or that the Trustee determines may be unduly
prejudicial to the rights of another Noteholder not taking part in such
direction, and the Trustee shall have the right to decline to follow any
such direction if the Trustee, being advised by counsel, determines that
the action so directed may not lawfully be taken or if the Trustee in good
faith shall determine that the proceedings so directed may involve it in
personal liability unless the Trustee has asked for and received
indemnification reasonably satisfactory to it against any loss, liability
or expense caused by its following such direction; provided that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 6.6 Limitation on Suits.
Subject to Section 6.7 below, a Noteholder may not institute any
proceeding or pursue any remedy with respect to this Indenture or the Notes
unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount of
the Notes then outstanding make a written request to the Trustee to pursue
the remedy;
(3) such Holder or Holders offer, and if requested, provide to
the Trustee indemnity reasonably satisfactory to the Trustee against any
loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision
of indemnity; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60 day period by the Holders of a majority
in aggregate principal amount of the Notes then outstanding.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over another
Noteholder.
Section 6.7 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal of, or premium, if
any, and interest of the Note on or after the respective due dates
expressed in the Note, or to bring suit for the enforcement of any such
payment on or after such respective dates, is absolute and unconditional
and shall not be impaired or affected without the consent of the Holder.
Section 6.8 Collection Suit by Trustee.
If an Event of Default in payment of principal and interest specified
in Section 6.1(1) or (2) hereof occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against
the Company or the Guarantors (or any other obligor on the Notes) for the
whole amount of unpaid principal and accrued interest remaining unpaid,
together with any premium, interest on overdue principal and, to the extent
that payment of such interest is lawful, interest on overdue installments
of interest, in each case at the rate then borne by the Notes, and such
further amounts 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, including all sums due
and owing to the Trustee pursuant to Section 7.7.
Section 6.9 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Noteholders allowed in any judicial proceedings relative to the Company or
the Guarantors (or any other obligor upon the Notes), their respective
creditors or property and shall be entitled and empowered to collect and
receive any monies or other property payable or deliverable on any such
claims and to distribute the same after deduction of its reasonable charges
and expenses to the extent that any such charges and expenses are not paid
out of the estate in any such proceedings and any custodian in any such
judicial proceeding is hereby authorized by each Noteholder 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 Noteholders, 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 7.7 hereof. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent
to or accept or adopt on behalf of any Noteholder any plan or
reorganization, arrangement, adjustment or composition affecting the Notes
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Noteholder in any such proceedings.
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 for amounts due under Section 7.7 hereof;
SECOND: to Noteholders for amounts due and unpaid on the Notes
for principal and interest as to each, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Notes; and
THIRD: to the Company or, to the extent the Trustee collects any
amount from any Guarantor, to such Guarantor.
The Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 6.10. The Trustee shall give the
Company prior notice of any such record date and payment date; provided,
however, that the failure to give any such notice shall not affect the
establishment of such record date or payment date or any payment to
Noteholders 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 Trustee, a court in its discretion may require the filing
by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section 6.11 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.7 hereof or a
suit by Holders of more than 10% in principal amount of the Notes then
outstanding.
Section 6.12 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
ARTICLE 7
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture
and covenants and agrees to perform the same, as herein expressed.
Section 7.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the same circumstances in the
conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others and no covenants or
obligations shall be read into this Indenture that are adverse to the
Trustee.
(2) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture but, in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture (but need
not confirm or investigate the accuracy of mathematical calculations or
other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph
(b) of this Section 7.1.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Sections 6.2 and 6.5 hereof.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of
its rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity satisfactory to it against
such risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is
subject to paragraphs (a), (b), (c) and (d) of this Section 7.1.
(f) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity reasonably satisfactory to it
against any loss, liability, expense or fee.
(g) The Trustee shall not be liable for interest on any assets
received by it except as the Trustee may agree in writing with the Company
or any Guarantor. Assets held in trust by the Trustee need not be
segregated from other assets except to the extent required by the law.
Section 7.2 Rights of Trustee.
Subject to Section 7.1 hereof:
(1) The Trustee may rely on and shall be protected in
acting or refraining from acting upon any document reasonably believed by
it to be genuine and to have been signed or presented by the proper person.
The Trustee need not investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate or an Opinion
of Counsel, or both, which shall conform to the provisions of Sections 12.4
and 12.5 hereof. The Trustee shall be protected and shall not be liable
for any action it takes or omits to take in good faith in reliance on such
certificate or opinion.
(3) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent (other than the
negligence or willful misconduct of an agent who is an employee of the
Trustee) appointed by it with due care.
(4) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers, provided that the Trustee's
conduct does not constitute negligence or bad faith.
(5) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, notice, request, direction,
consent, order, bond, debenture, or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled, upon reasonable notice to the Company, to examine the books,
records, and premises of the Company, personally or by agent or attorney.
(6) 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 pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may
be incurred by it in compliance with such request, order or direction.
Section 7.3 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, any
Guarantor or their respective Affiliates with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.
Section 7.4 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the
Company's use of the proceeds from the sale of Notes or any money paid to
the Company pursuant to the terms of this Indenture and it shall not be
responsible for any statement in the Securities or any document used in
connection with the sale of the Notes other than its certificate of
authentication.
Section 7.5 Notice of Defaults.
If a Default or an Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Noteholder, as
their names and addresses appear on the Noteholder list described in
Section 2.5, notice of the uncured Default or Event of Default within 30
days after the Trustee obtains actual knowledge that such Default or Event
of Default has occurred. Except in the case of a Default or an Event of
Default in payment of principal of, or interest on, any Note, and a Default
that resulted from the failure to comply with Sections 3.1(b), 4.23, or
5.1, the Trustee may withhold the notice if and so long as its board of
directors, the executive committee of its board of directors or a committee
of its directors and/or Trust Officers in good faith determine that
withholding the notice is in the interest of the Noteholders.
Section 7.6 Reports by Trustee to Holders.
This Section 7.6 shall not be operative as a part of this Indenture
until this Indenture is qualified under the TIA, and, until such
qualification, this Indenture shall be construed as if this Section 7.6
were not contained herein.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, the Trustee shall, to the extent that any of
the events described in TIA 313(a) occurred within the previous twelve
months, but not otherwise, mail to each Noteholder a brief report dated as
of such May 15 that complies with TIA 313(a). The Trustee also shall
comply with TIA 313(b) and 313(c).
A copy of each report at the time of its mailing to Noteholders shall
be mailed to the Company and filed with the SEC and each stock exchange, if
any, on which the Notes are listed.
The Company shall promptly notify the Trustee if the Notes become
listed on any securities exchange.
Section 7.7 Compensation and Indemnity.
The Company and the Guarantors (on a joint and several basis) shall
pay to the Trustee from time to time such reasonable compensation as shall
be agreed in writing between the Company and the Trustee for its services
hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust). The
Company and the Guarantors (on a joint and several basis) shall reimburse
the Trustee upon request for all reasonable disbursements, expenses and
advances incurred or made by it in connection with its duties under this
Indenture, including the reasonable compensation, disbursements and
expenses of the Trustee's agents and counsel.
The Company and the Guarantors (on a joint and several basis) shall
indemnify each of the Trustee and any predecessor Trustee and their
respective agents for, and hold them harmless against, any and all loss,
damage, claim, liability, reasonable expense (including but not limited to
reasonable attorneys' fees and expenses) or taxes (other than taxes based
on the income of the Trustee) incurred by them in connection with the
acceptance or performance of the Trustee's duties under this Indenture,
including the reasonable costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder (including, without limitation, settlement
costs). The Trustee shall promptly notify the Company and the Guarantors
in writing of any claim asserted against the Trustee for which it may seek
indemnity. However, the failure by the Trustee to so notify the Company
and the Guarantors shall not relieve the Company or the Guarantors of their
obligations hereunder. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and
the Company shall pay the reasonable fees and expenses of such counsel;
provided that the Company will not be required to pay such fees and
expenses if it assumes the Trustee's defense and there is no conflict of
interest between the Company and the Trustee in connection with such
defense as reasonably determined by the Trustee. The Company need not pay
for any settlement made without its written consent. The Company and the
Guarantors need not reimburse any expense or indemnify against any loss or
liability to the extent incurred by the Trustee through its negligence, bad
faith or willful misconduct.
To secure the payment obligations of the Company and the Guarantors in
this Section 7.7, the Trustee shall have a lien prior to the Notes on all
money or property held or collected by the Trustee in its capacity as such,
except such money or property held in trust to pay principal of or interest
on particular Notes. The obligations of the Company and the Guarantors
under this Section 7.7 and any Lien arising hereunder or under the Pledge
Agreement shall be joint and several liabilities of the Company and each of
the Guarantors and shall survive the resignation or removal of any trustee,
the satisfaction and discharge of this Indenture, including the termination
or rejection hereof in any bankruptcy proceeding to the extent permitted by
law.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(8) or (9) hereof occurs, the expenses and
the compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.8 Replacement of Trustee.
The Trustee may resign by so notifying the Company and the Guarantors
in writing, such resignation to become effective upon the appointment of a
successor Trustee. The Holders of a majority in principal amount of the
outstanding Notes may remove the Trustee by notifying the Company, the
Guarantors and the removed Trustee in writing and may appoint a successor
Trustee with the Company's written consent which consent shall not be
unreasonably withheld. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly notify each
Noteholder of such event and shall appoint a successor Trustee. Within one
year after the successor Trustee takes office, the Holders of a majority in
principal amount of the 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 outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Noteholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Any resignation or removal of the Trustee pursuant to this Indenture
shall be deemed to be a resignation or removal of the Trustee in its
capacity as collateral agent under the Security Documents and any
appointment of a successor Trustee pursuant to this Indenture shall be
deemed to be appointment of a successor collateral agent under the Security
Documents and such successor shall assume all of the obligations of the
Trustee in its capacity as collateral agent under the Security Documents.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately
following such delivery, the retiring Trustee shall, subject to its rights
under Section 7.7 hereof, transfer all property held by it as Trustee to
the successor Trustee, 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. A successor
Trustee shall mail notice of its succession to each Noteholder.
Notwithstanding replacement of the Trustee pursuant to this Section 7.8,
the Company's obligations under Section 7.7 hereof shall continue for the
benefit of the retiring Trustee.
Section 7.9 Successor Trustee by Consolidation, Merger or Conversion.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to,
another corporation, trust company or national banking association, the
resulting corporation, trust company or national banking association
without any further act shall, subject to eligibility requirements of
Section 7.10 hereof, be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA 310(a)(1) and TIA 310(a)(5). The Trustee (or in
the case of a corporation included in a bank holding company system, the
related bank holding company) shall have a combined capital and surplus of
at least $100,000,000 as set forth in its most recent published annual
report of condition. In addition, if the Trustee is a corporation included
in a bank holding company system, the Trustee, independently of such bank
holding company, shall meet the capital requirements of TIA 310(a)(2).
The Trustee shall comply with TIA 310(b), including the provision in
310(b)(1); provided that there shall be excluded from the operation of TIA
310(b)(1) any indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the
Company or the Guarantors are outstanding if the requirements for exclusion
set forth in TIA 310(b)(1) are met.
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA 311(a), excluding any creditor
relationship listed in TIA 311(b). A Trustee who has resigned or been
removed shall be subject to TIA 311(a) to the extent indicated therein.
Section 7.12 Paying Agents.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to it and the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section
7.12:
(A) that it will hold all sums held by it as agent for the
payment of principal of, or premium, if any, or interest on, the Notes
(whether such sums have been paid to it by the Company or by any obligor on
the Notes) in trust for the benefit of Holders of the Notes or the Trustee;
(B) that it will at any time during the continuance of any Event
of Default, upon written request from the Trustee, deliver to the Trustee
all sums so held in trust by it together with a full accounting thereof;
and
(C) that it will give the Trustee written notice within three
(3) Business Days of any failure of the Company (or by any obligor on the
Notes) in the payment of any installment of the principal of, premium, if
any, or interest on, the Notes when the same shall be due and payable.
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.1 Without Consent of Holders.
The Company and/or one or more Guarantors and the Trustee may waive,
amend or supplement this Indenture, any Security Document or the Securities
without notice to or consent of any Noteholder:
(1) to comply with Article 5;
(2) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(3) to comply with any requirements of the SEC under the TIA;
(4) to cure any ambiguity, defect or inconsistency, provided,
however, that no amendment or supplement may adversely affect the rights of
any Noteholder;
(5) to make any other change that does not adversely affect the
rights of any Noteholder;
(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes; or
(7) to add additional Guarantors with respect to the Notes;
provided that the Company has delivered to the Trustee an Opinion of
Counsel and an Officers' Certificate, each stating that such waiver,
amendment or supplement complies with the provisions of this Section 8.1.
The Trustee is hereby authorized to join with the Company and the
Guarantors, if any, in the execution of any supplemental indenture
authorized or permitted by the terms of this Indenture and to make any
further appropriate agreements and stipulations which may be therein
contained, but the Trustee shall not be obligated to enter into any such
supplemental indenture which adversely affects its own rights, duties or
immunities under this Indenture.
Section 8.2 With Consent of Holders.
The Company when authorized by a Board Resolution, and/or one or more
Guarantors and the Trustee, with the written consent of Holders of at least
a majority in aggregate principal amount of the outstanding Notes, may
waive, amend or supplement this Indenture, any Security Document or the
Securities, except that no such modification waiver, amendment or
supplement shall, without the consent of each Holder affected thereby:
(1) reduce the percentage of the outstanding principal amount of
the Notes whose Holders must consent to a waiver of or amendment or
supplement to this Indenture, the Securities or any Security Document;
(2) reduce the rate of or change the time for payment of
interest on any Note;
(3) reduce the principal of or change the Maturity Date of any
Note, or alter the redemption provisions in this Indenture or the Notes in
a manner adverse to any Holder;
(4) make any Note payable in money other than that stated in the
Note or change the place of payment to outside of the United States;
(5) change the amount or time of any payment required by the
Notes;
(6) waive a default on the payment of the principal of or
interest on, or redemption payment with respect to any Note (except a
rescission of acceleration of the Notes by Holders of at least a majority
in aggregate principal amount of the Notes and a waiver of the payment
default that resulted from such acceleration to the extent permitted under
Section 6.2);
(7) affect the ranking of the Notes in a manner adverse to the
Holders or release any Collateral, except in compliance with the terms
hereof and the applicable Security Document or make any change in
provisions relating to the Collateral that adversely affects the Holders;
(8) except pursuant to this Indenture, release any Guarantor
from its obligations under its Guarantee, or change any Guarantee in a
manner that adversely affects Holders of the Notes;
(9) take any other action otherwise prohibited by this Indenture
to be taken without the consent of each Holder affected thereby; or
(10) make any changes in any provisions relating to waivers of
defaults, the ability of the Holders to enforce their rights under this
Indenture, the Securities, the Security Documents or this Section 8.2.
provided that the Company has delivered to the Trustee an Opinion of
Counsel and an Officers' Certificate, each stating that such waiver,
amendment or supplement complies with the provisions of this Section 8.2.
In addition to the foregoing, except as expressly permitted by this
Indenture (including, without limitation, in Section 10.3), no portion of
the Collateral may be released without the consent of the Holders of at
least 75% in aggregate principal amount of the then outstanding Notes.
After a modification, amendment, supplement or waiver under this
Section 8.2 becomes effective, the Company shall mail to the Holders a
notice briefly describing the modification, 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 modification, amendment, supplement or waiver.
It shall not be necessary for the consent of the Holders under this
Section 8.2 to approve the particular form of any proposed amendment,
modification, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof.
Section 8.3 Compliance with Trust Indenture Act.
From the date on which this Indenture is qualified under the TIA,
every amendment to or supplement of this Indenture or the Notes shall
comply with the TIA as then in effect.
Section 8.4 Revocation and Effect of Consents.
Until a waiver, amendment, supplement or other action becomes
effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the
same Note or portion thereof, and of any Note issued upon the transfer
thereof or in exchange therefor or in place thereof, even if notation of
the consent is not made on any such Note. Any such Holder or subsequent
Holder, however, may revoke the consent as to his Note or portion of a
Note, if the Trustee receives the notice of revocation before the date the
waiver, amendment, supplement or other action becomes effective.
Notwithstanding the foregoing, nothing in this paragraph shall impair the
right of any Holder under TIA 316(b).
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any
modification, amendment, supplement, or waiver. If a record date is fixed,
then, notwithstanding the preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only
such Persons, shall be entitled to consent to such modification, amendment,
supplement, or waiver or to revoke any consent previously given, whether or
not such Persons continue to be Holders after such record date. No such
consent shall be valid or effective for more than 90 days after such record
date unless the consent of the requisite number of Holders has been
obtained.
After a modification, amendment, supplement, waiver or other action
becomes effective, it shall bind every Noteholder, unless it makes a change
described in any of clauses (1) through (10) of Section 8.2, in which case,
the waiver, amendment or supplement shall bind only each Holder of a Note
who has consented to it and every subsequent Holder of a Note or portion of
a Note that evidences the same debt as the consenting Holder's Note.
Section 8.5 Notation on or Exchange of Notes.
If a waiver, amendment or supplement changes the terms of a Note
(including the Guarantee), the Trustee may request the Holder of the Note
to deliver it to the Trustee. In such case, the Trustee shall place an
appropriate notation on the Note about the changed terms and return it to
the Holder. Alternatively, if the Company or the Trustee so determines,
the Company in exchange for the Note shall issue and the Trustee shall
authenticate a new Note that reflects the changed terms. Failure to make
the appropriate notation or issue a new Note shall not affect the validity
and effect of such waiver, amendment or supplement.
Section 8.6 Trustee to Sign Amendments, Etc.
The Trustee shall sign any waiver, amendment or supplement authorized
pursuant to this Article 8 if the waiver, amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing
or refusing to sign such waiver, amendment or supplement, the Trustee shall
be entitled to receive and, subject to Section 7.1 hereof, shall be fully
protected in relying upon an Officers' Certificate and an Opinion of
Counsel stating that such waiver, amendment or supplement is authorized or
permitted by this Indenture and such supplemental indenture constitutes the
legal, valid and binding obligation of the Company and the Guarantors
enforceable against each of them in accordance with its terms (subject to
customary exceptions).
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.1 Discharge of Indenture.
The Company and the Guarantors may terminate their obligations under
the Notes, the Guarantees, this Indenture and the Security Documents, other
than the obligations referred to in the last paragraph of this Section 9.1,
if all Notes previously authenticated and delivered (other than destroyed,
lost or stolen Notes which have been replaced or paid and Notes for whose
payment money has heretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or discharged
from such trust) have been delivered to the Trustee for cancellation and
the Company has paid all sums payable by it hereunder, or if:
(a) the Company shall have irrevocably deposited or caused to be
deposited with the Trustee or a trustee satisfactory to the Trustee, under
the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust solely for the benefit
of the Holders for that purpose, money or direct non-callable obligations
of, or non-callable obligations guaranteed by, the United States of America
for the payment of which guarantee or obligation the full faith and credit
of the United States is pledged ("U.S. Government Obligations") maturing
as to principal and interest in such amounts and at such times as are
sufficient without consideration of any reinvestment of such interest, to
pay principal of and interest on the outstanding Notes on a specified
Redemption Date as certified to the Trustee by a nationally recognized firm
of independent public accountants designated by the Company; provided that
the Trustee shall have been irrevocably instructed to apply such money or
the proceeds of such U.S. Government Obligations to the payment of said
principal and interest with respect to the Securities; and
(b) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent providing for the termination of the Company's obligation under
the Securities and this Indenture have been complied with.
After such delivery the Trustee upon request shall acknowledge in
writing the discharge of the Company's and the Guarantors' obligations
under the Notes, the Guarantees and this Indenture except for those
surviving obligations specified below.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company in Sections 2.7, 7.7, 9.5, 9.6 and 9.8 hereof
shall survive.
Section 9.2 Legal Defeasance.
The Company may, at its option by Board Resolution, be discharged from
its obligations with respect to the Notes and the Guarantors, if any,
discharged from their obligations under the Guarantees, if any, on the date
the conditions set forth in Section 9.4 below are satisfied (hereinafter,
"Legal Defeasance"). For this purpose, such Legal Defeasance means that
the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Notes and to have satisfied all its other
obligations under such Notes, this Indenture and the Security Documents
(and the Trustee, at the expense of the Company, shall, subject to Section
9.6 hereof, execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of outstanding Notes to receive
solely from the trust funds described in Section 9.4 hereof and as more
fully set forth in such Section, payments in respect of the principal of
and interest on such Notes when such payments are due, (B) the Company's
obligations with respect to such Notes under Sections 2.3, 2.4, 2.5, 2.6,
2.7, and 2.8, (C) the rights, powers, trusts, duties, and immunities of the
Trustee hereunder (including claims of, or payments to, the Trustee under
or pursuant to Section 7.7) and (D) this Article 9. Subject to compliance
with this Article 9, the Company may exercise its option under this Section
9.2 with respect to the Notes notwithstanding the prior exercise of its
option under Section 9.3 below with respect to the Notes.
Section 9.3 Covenant Defeasance.
At the option of the Company, pursuant to a Board Resolution, the
Company and the Guarantors, if any, shall be released from their respective
obligations under Sections 4.2 through 4.19, inclusive, Sections 4.21
through 4.29, inclusive, Section 4.26 through 4.30, inclusive, Section 5.1,
Section 6.1(3), Sections 6.1(5) through Section 6.1(7), inclusive, Sections
6.1(8) and 6.1(9) (only with respect to Subsidiaries), Section 6.1(10), and
Articles 10 and 11 hereof with respect to the outstanding Notes and all
obligations under the Security Documents on and after the date the
conditions set forth in Section 9.4 hereof are satisfied (hereinafter,
"Covenant Defeasance") and the Notes shall thereafter be deemed to not be
outstanding for purposes of any direction, waiver, consent, declaration or
act of the Holders (and the consequences thereof) in connection with such
covenants but shall continue to be outstanding for all other purposes
hereunder. For this purpose, such Covenant Defeasance means that the
Company and the Guarantors, if any, may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in
any such specified Section or portion thereof, whether directly or
indirectly by reason of any reference elsewhere herein to any such
specified Section or portion thereof or by reason of any reference in any
such specified Section or portion thereof to any other provision herein or
in any other document, but the remainder of this Indenture and the Notes
shall be unaffected thereby.
Section 9.4 Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 9.2 or
Section 9.3 to the outstanding Notes:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 7.10 hereof who shall agree to comply with the provisions of
this Article 9 applicable to it) as funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Notes, (A) money in
an amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than the due date of any payment, money
in an amount, or (C) a combination thereof, in each case sufficient, in the
opinion of a nationally-recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of, premium, if
any, and accrued interest on the outstanding Notes at the maturity date of
such principal, premium, if any, or interest, or on dates for payment and
redemption of such principal, premium, if any, and interest selected in
accordance with the terms of this Indenture and of the Notes;
(2) no Default or Event of Default (other than (i) Defaults or
Events of Default related to or arising out of incurrences of Indebtedness
(and liens and customary documentation related thereto) the proceeds of
which are used to satisfy the requirement in clause (1) above and (ii)
Defaults and Events of Default arising under Section 6.1(5) related to
Defaults and Events of Default described in clause (i) of this
parenthetical) with respect to the Notes shall have occurred and be
continuing on the date of such deposit, or shall be continuing on the 91st
day after the date of such deposit or, if longer, ending on the day
following the expiration of the longest preference period under any
Bankruptcy Law applicable to the Company in respect of such deposit (it
being understood that this condition shall not be deemed satisfied until
the expiration of such period);
(3) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute default under any other
agreement or instrument to which the Company or any of the Guarantors is a
party or by which any of them is bound;
(4) the Company shall have delivered to the Trustee an Opinion
of Counsel stating that, as a result of such Legal Defeasance or Covenant
Defeasance, neither the trust nor the Trustee will be required to register
as an investment company under the Investment Company Act of 1940, as
amended;
(5) in the case of an election under Section 9.2, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling to the effect that or (ii) there has been a change
in any applicable Federal income tax law with the effect that, and such
opinion shall confirm that, the Holders of the outstanding Notes or persons
in their positions will not recognize income, gain or loss for Federal
income tax purposes solely as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amounts, in
the same manner, including as a result of prepayment, and at the same times
as would have been the case if such deposit, defeasance and discharge had
not occurred, provided, however, that no Opinion of Counsel shall be
required if all Notes not theretofore delivered to the Trustee for
cancellation (i) have become due and payable, (ii) will become due and
payable on the Maturity Date within one year or (iii) are to be called for
redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and at
the expense, of the Company;
(6) in the case of an election under Section 9.3, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the outstanding Notes will not recognize income, gain
or loss for Federal income tax purposes as a result of such Covenant
Defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such Covenant Defeasance had not occurred;
(7) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that (i) all conditions
precedent provided for relating to either the Legal Defeasance under
Section 9.2 or the Covenant Defeasance under Section 9.3 (as the case may
be) have been complied with, and (ii) if any other Indebtedness of the
Company shall then be outstanding, such legal defeasance or covenant
defeasance will not violate the provisions of the agreements or instruments
evidencing such Indebtedness.
Section 9.5 Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.
All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 9.4 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 as
the Trustee may determine, to the Holders of such Notes, of all sums due
and to become due thereon in respect of principal, premium, if any, and
accrued interest, but such money need not be segregated from other funds
except to the extent required by law.
Upon satisfaction by the Company of the conditions to its Legal
Defeasance or Covenant Defeasance, the Lien of this Indenture on all the
Collateral will terminate and all the Collateral will be released without
any further action by the Trustee hereunder or any other person.
The Company and the Guarantors shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations deposited pursuant to Section 9.4 hereof or the
principal, premium, if any, 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 9 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 9.4 hereof which, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would
then be required to be deposited to effect an equivalent Legal Defeasance
or Covenant Defeasance.
Section 9.6 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 9.1, 9.2 or 9.3 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 obligations of the Company and any
Guarantor under this Indenture, the Notes and the Guarantees, if any, shall
be revived and reinstated as though no deposit had occurred pursuant to
this Article 9 until such time as the Trustee or Paying Agent is permitted
to apply all such money or U.S. Government Obligations in accordance with
Section 9.1 hereof; provided, however, that if the Company or any
Guarantors have made any payment of principal of or accrued interest on any
Notes because of the reinstatement of their obligations, the Company or
such Guarantors, as the case may be, shall be subrogated to the rights of
the Holders of such Notes to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
Section 9.7 Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under the provisions of this
Indenture shall, upon demand of the Company, be paid to the Trustee, or if
sufficient moneys have been deposited pursuant to Section 9.4 hereof, to
the Company (or, if such moneys had been deposited by any Guarantors, to
such Guarantors), and thereupon such Paying Agent shall be released from
all further liability with respect to such moneys.
Section 9.8 Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent or then held
by the Company or any Guarantors in trust for the payment of the principal
of, or premium, if any, or interest on any Note that are not applied but
remain unclaimed by the Holder of such Note for two years after the date
upon which the principal of, or premium, if any, or interest on such Note
shall have respectively become due and payable shall be repaid to the
Company (or, if appropriate, the Guarantors) upon Company Request, or if
such moneys are then held by the Company or any Guarantors in trust, such
moneys shall be released from such trust; and the Holder of such Note
entitled to receive such payment shall thereafter, as an unsecured general
creditor, look only to the Company and the Guarantors, if any, for the
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money shall thereupon cease; provided, however, that
the Trustee or any such Paying Agent, before being required to make any
such repayment, may, at the expense of the Company and the Guarantors, if
any, either mail to each Noteholder affected, at the address shown in the
register of the Notes maintained by the Registrar pursuant to Section 2.3
hereof, or cause to be published once a week for two successive weeks, in a
newspaper published in the English language, customarily published each
Business Day and of general circulation in The City of New York, New York,
a 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 mailing
or publication, any unclaimed balance of such moneys then remaining will be
repaid to the Company. After payment to the Company or the Guarantors, if
any, or the release of any money held in trust by the Company or any
Guarantors, as the case may be, Noteholders entitled to the money must look
only to the Company and any Guarantors for payment as general unsecured
creditors unless applicable abandoned property law designates another
person.
ARTICLE 10
COLLATERAL
Section 10.1 Pledge of Collateral.
(a) Subject to Section 12.1 hereof, in order to secure the due
and punctual payment of principal of and interest on the Notes when and as
the same shall be due and payable, whether on an Interest Payment Date, at
maturity, by acceleration, repurchase, redemption or otherwise, and
interest on the overdue principal of and interest (to the extent permitted
by law), if any, on the Notes and performance of all other obligations of
the Company to the Holders or the Trustee under this Indenture and the
Notes, the Company and the Trustee have simultaneously with the execution
of this Indenture entered into the Pledge Agreement, and the Company and
the Guarantors have entered into the Security Agreement, pursuant to which
the Company and the Guarantors have granted to the Trustee for the benefit
of the Trustee and the Holders a Lien on and security interest in the
Collateral.
(b) Subject to Section 12.1 hereof, each Holder, by accepting a
Note and consenting to this Indenture, consents and agrees to all of the
terms and provisions of the Security Documents, as the same may be in
effect from time to time or may be amended from time to time in accordance
with the respective provisions of the Security Documents and this
Indenture, and authorizes and directs the Trustee to act as secured party
with respect thereto.
(c) Subject to Section 12.1 hereof, as set forth in and governed
by the Security Documents, as among the Noteholders, the Collateral as now
or hereafter constituted shall be held for the equal and ratable benefit of
the Noteholders without preference, priority or distinction of any thereof
over any other by reason of difference in time of issuance, sale or
otherwise, as security for the Notes.
Section 10.2 Recording; Priority; Opinions, Etc.
(a) The Company shall, at its sole cost and expense, perform any
and all acts and execute any and all documents (including, without
limitation, the execution, amendment or supplementation of any financing
statement and continuation statement or other statement) for filing under
the provisions of the UCC that are necessary or advisable and shall do such
other acts and execute such other documents as may be required under the
Security Documents, from time to time, in order to grant, perfect and
maintain in favor of the Trustee for the benefit of the Trustee and the
Holders valid and perfected Liens on the Collateral having the priorities
specified therein and to preserve and protect fully the rights of the
Trustee and the Holders under this Indenture.
The Company shall from time to time promptly pay and satisfy all
financing and continuation statement recording and/or filing fees, charges
and taxes relating to this Indenture and the Security Documents, any
amendments thereto and any other instruments of further assurance. Without
limiting the generality of the foregoing covenant, in the event at any time
the Trustee shall determine that additional transfer or similar taxes are
required to be paid to perfect or continue any Lien on any Collateral, the
Company shall pay such taxes promptly upon demand by the Trustee.
(b) The Company shall, with respect to (i) below, promptly after
the Restatement Date, and with respect to (ii) below, following
qualification of this Indenture under the TIA, furnish to the Trustee:
(i) Opinion(s) of Counsel, subject to customary
qualifications, either (a) to the effect that, in the opinion of such
counsel, all instruments of further assurance, including, without
limitation, financing statements, have been properly recorded and filed so
as to make effective the Liens on the Collateral created by the Security
Documents and reciting the details of such action, or (b) to the effect
that, in the opinion of such counsel, no such action is necessary to make
such Liens effective;
(ii) on April 1 of each year beginning with April 1, 2000,
an Opinion of Counsel, dated as of such date, either (a) to the effect
that, in the opinion of such counsel, such action has been taken with
respect to the recording, filing, re-recording and refiling of all
financing statements, continuation statements or other instruments of
further assurance as is necessary to maintain the Liens on the Collateral
created by the Security Documents and reciting with respect to such Liens
the details of such action or referencing prior Opinions of Counsel in
which such details are given, or (b) to the effect that, in the opinion of
such counsel, no such action is necessary to maintain such Liens.
(c) Notwithstanding any other provision of this Indenture, any
Security Document or any other agreement or instrument, other than the
Required Filings, neither the Company, its Subsidiaries nor any other
Person shall have any obligation to record, file, re-record or re-file (or
cause any Person to take any such action) this Indenture, any Security
Document or any other agreement, instrument, document or other writing of
any kind in order to "make effective" or "maintain" (in each case for
purposes of Section 314(b) of the TIA) any Lien in connection with this
Indenture, and "the lien intended to be created" by this Indenture (for
purposes of Section 314(b) of the TIA) is hereby deemed to be so limited.
The term "Required Filings" means recordings, filings, re-recordings and re-
filings of financing statements or other instruments in any jurisdiction
designated in writing to the Trustee by Holders of at least a majority in
aggregate principal amount of the outstanding Notes, and initially means
filings of the financing statements described on Schedule 10.2 attached
hereto.
Section 10.3 Release of Collateral.
The Trustee shall not release Collateral from the Lien of the Security
Documents unless such release is in accordance with the provisions of this
Section 10.3 and of the Security Documents. The Company and its
Subsidiaries shall have no obligation to comply with Section 314(d) of the
TIA.
(a) Satisfaction and Discharge; Defeasance. The Company and its
Subsidiaries shall be entitled to obtain a full release of all of the
Collateral from the Lien of this Indenture and the Security Documents upon
compliance with all of the conditions precedent for satisfaction and
discharge of this Indenture set forth in Section 9.1 or for defeasance
pursuant to Section 9.2 or 9.3. Upon delivery by the Company to the
Trustee of an Officers' Certificate and an Opinion of Counsel, each to the
effect that all of the conditions precedent have been complied with, the
Trustee shall take all necessary action, at the request and expense of the
Company, to release and reconvey to the Company and its Subsidiaries all of
the Collateral, and shall deliver such Collateral in its possession to the
Company and its Subsidiaries including, without limitation, the execution
and delivery of releases or waivers whenever necessary.
(b) Sales of Collateral Permitted by Section 4.22. The Company
and its Subsidiaries shall be entitled to obtain a release of any
Collateral that is sold pursuant to Section 4.22 upon compliance with the
condition precedent that the Company shall have delivered to the Trustee
the following:
(i) Release Notice. A notice (a "Release Notice"), which
shall: (A) refer to this Section 10.3; (B) attach all the documents
referred to below; (C) specify the value of the Collateral on a date within
60 days of the Release Notice (the "Valuation Date"); (D) certify that the
purchase price received is equal to the Fair Market Value of the Collateral
as of the date of such release; (E) confirm the sale of, or an agreement to
sell, the Collateral in a bona fide sale to a Person that is not an
Affiliate of the Company; and (F) be accompanied by a counterpart of the
instruments proposed to give effect to the release (a "Release") fully
executed and acknowledged (if applicable) by all parties thereto other than
the Trustee;
(ii) Officers' Certificate And Opinion of Counsel. An
Officers' Certificate and Opinion of Counsel, together stating that (A)
such Asset Sale covers all the Collateral sold and, if applicable, complies
with the terms and conditions of an Asset Sale pursuant to Section 4.22,
(B) all Asset Sale Proceeds from the sale of all the Collateral will be
applied pursuant to Section 4.22, (C) there is no Default or Event of
Default in effect or continuing on the date thereof, (D) the release of all
of the Collateral will not result in a Default or Event of Default and (E)
all conditions precedent to such release have been complied with; and
(iii) Proceeds of Asset Sale. The Asset Sale Proceeds
and other non-cash consideration received from the Asset Sale required to
be delivered to the Trustee pursuant to Section 4.22 to be applied to
repurchase Securities from Holders accepting the offer to purchase pursuant
to Section 4.22.
Upon compliance with the conditions set forth in (b) above, and the
delivery by the Company of such other documents that the Trustee may
reasonably require, the Trustee shall execute, acknowledge (if applicable)
and deliver to the Company such Release within three Business Days after
receipt by the Trustee of a Release Notice, as applicable, and the
satisfaction of the applicable requirements of this Section 10.3.
Section 10.4 Trust Indenture Act Requirements.
The release of any Collateral from the Security Documents or the
release, in whole or in part, of the Liens created by the Security
Documents, will not be deemed to impair the Lien of the Security Documents
in contravention of the provisions hereof if and to the extent the
Collateral or Liens are released pursuant to the Security Documents and
pursuant to the terms hereof. The Trustee and each of the Holders
acknowledge that a release of Collateral or Liens strictly in accordance
with the terms of the Security Documents and the terms hereof will not be
deemed for any purpose to be an impairment of the Liens created pursuant to
the Security Documents in contravention of the terms of this Indenture.
Section 10.5 Suits To Protect Collateral.
Subject to the provisions of the Pledge Agreement, the Trustee shall
have power to institute and to maintain such suits and proceedings as it
may deem expedient to prevent any impairment of the Collateral by any acts
which may be unlawful or in violation of any of the Pledge Agreement or
this Indenture, and such suits and proceedings as the Trustee may deem
expedient to preserve or protect its interests and the interests of the
Holders in the Collateral (including power to institute and maintain suits
or proceedings to restrain the enforcement of or compliance with any
legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance
with, such enactment, rule or order would impair the Collateral or be
prejudicial to the interests of the Holders or the Trustee).
Section 10.6 Purchaser Protected.
In no event shall any purchaser in good faith of any Collateral
purported to be released hereunder be bound to ascertain the authority of
the Trustee to execute the Release or to inquire as to the satisfaction of
any conditions required by the provisions hereof for the exercise of such
authority or to see to the application of any consideration given by such
purchaser or other transferee; nor shall any purchaser or other transferee
of any Collateral permitted by this Article 10 to be sold be under
obligation to ascertain or inquire into the authority of the Company to
make any such sale or other transfer.
Section 10.7 Powers Exercisable by Receiver or Trustee.
In case the Collateral shall be in the possession of a receiver or
trustee, lawfully appointed, the powers conferred in this Article 10 upon
the Company with respect to the release, sale or other disposition of such
property may be exercised by such receiver or trustee, and an instrument
signed by such receiver or trustee shall be deemed the equivalent of any
similar instrument of the Company or of any officer or officers thereof
required by the provisions of this Article 10.
Section 10.8 Release upon Termination of the Company's Obligations.
In the event that the Company delivers an Officers' Certificate
certifying that the provisions of Sections 9.1, 9.2 or 9.3 have been
complied with, the Trustee shall (i) execute and deliver such releases,
termination statements and other instruments as the Company may reasonably
request evidencing the termination of the Liens created by the Security
Documents and (ii) be deemed not to hold any Liens on the Collateral for
the benefit of the Holders.
ARTICLE 11
GUARANTEE OF NOTES
Section 11.1 Guarantee.
(a) Subject to the provisions of this Article 10, each Guarantor
hereby jointly and severally and unconditionally guarantees to each Holder
and to the Trustee, on behalf of the Holders, (i) the full and punctual
payment of the principal of and interest on each Note, when and as the same
shall become due and payable, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue
principal of, and premium, if any, and interest on the Notes, to the extent
lawful, and the due and punctual performance of all other Obligations of
the Company to the Holders or the Trustee all in accordance with the terms
of such Note and this Indenture, and (ii) in the case of any extension of
time of payment or renewal of any Notes or any of such other Obligations,
that the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, at stated maturity,
by acceleration or otherwise. Each Guarantor, by execution of the
Guarantee, agrees that its obligations thereunder and hereunder shall be
absolute and unconditional, irrespective of, and shall be unaffected by,
any invalidity, irregularity or unenforceability of any such Note or this
Indenture, any failure to enforce the provisions of any such Note or this
Indenture, any waiver, modification or indulgence granted to the Company
with respect thereto by the Holder of such Note or the Trustee, or any
other circumstances which may otherwise constitute a legal or equitable
discharge of a surety or such Guarantor.
(b) Each Guarantor, by execution of the Guarantee, waives
diligence, presentment, demand of payment, filing of claims with a court in
the event of merger or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to any
such Note or the Indebtedness evidenced thereby and all demands whatsoever,
and covenants that the Guarantee will not be discharged as to any such Note
except by payment in full of the principal thereof, premium if any, and
interest thereon and as provided in Sections 9.1, 9.2, 9.3 and 11.4 hereof.
The obligations of each Guarantor hereunder shall not be affected by (a)
the failure of any Holder or the Trustee to assert any claim or demand or
to enforce any right or remedy against the Company or any other Person
under this Indenture, the Notes or any other agreement or otherwise; (b)
any extension or renewal of any thereof; (c) any rescission, waiver,
amendment or modification of any of the terms or provisions of this
Indenture, the Notes or any other agreement; (d) the release of any
security held by any Holder or the Trustee for the Obligations or any of
them; (e) the failure of any Holder or Trustee to exercise any right or
remedy against any other Guarantor of the Obligations; or (f) any change in
the ownership of such Guarantor, except as provided in Section 11.4. If any
Holder or the Trustee is required by any court or otherwise to return to
the Company or any Guarantor or any Custodian, trustee, liquidator or other
similar official acting in relation to either the Company or any Guarantor,
any amount paid by either the Company or any Guarantor to the Holder or
Trustee, each Guarantor's Guarantee, to the extent therefor discharged,
shall be reinstated in full force and effect. Each Guarantor further
agrees that, as between such Guarantor, on the one hand, and the Holders
and the Trustee, on the other hand, (i) the maturity of the Obligations
guaranteed by the Guarantee may be accelerated as provided in Article 6
hereof for the purposes of the Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of
the Obligations guaranteed thereby, 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 each Guarantor for the purpose of the Guarantee.
In addition, without limiting the foregoing provisions, upon the
effectiveness of an acceleration under Article 6 hereof, the Trustee shall
promptly make a demand for payment on the Notes under the Guarantee
provided for in this Article 11 and not discharged. Failure to make such
demand shall not affect the validity or enforceability of the Guarantee
upon any Guarantor.
(c) A Guarantee shall not be valid or become obligatory for any
purpose with respect to a Note unless the certificate of authentication on
such Note shall have been signed by or on behalf of the Trustee.
(d) Each Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorney's fees) incurred by the Trustee as
any Holder in enforcing any rights under this Section 11.1.
Section 11.2 Execution and Delivery of Guarantees.
(a) To evidence the Guarantee set forth in this Article 11, each
Guarantor hereby agrees that a notation of such Guarantee may be placed on
each Note authenticated and made available for delivery by the Trustee and
that this Guarantee shall be executed on behalf of each Guarantor by the
manual or facsimile signature of an Officer of each Guarantor.
(b) Each Guarantor hereby agrees that the Guarantee set forth in
Section 11.1 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Guarantee.
(c) If an Officer of a Guarantor whose signature is on the
Guarantee no longer holds that office at the time the Trustee authenticates
the Note on which the Guarantee is endorsed, the Guarantee shall be valid
nevertheless.
(d) The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantee set forth in this Indenture on behalf of each Guarantor.
Section 11.3 Limitation of Guarantee.
The obligations of each Guarantor will be limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections
from or payments made by or on behalf of any other Guarantor in respect of
the obligations of such other Guarantor under its Guarantee or pursuant to
its contribution obligations under this Indenture, result in the
obligations of such Guarantor under the Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under Federal or state law.
Each Guarantor that makes a payment or distribution under a Guarantee shall
be entitled to a contribution from each other Guarantor in a pro rata
amount based on the Adjusted Net Assets of each Guarantor.
Section 11.4 Release of Guarantor.
(a) No Guarantor may consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person), another Person
whether or not affiliated with such Guarantor unless (i) subject to the
provisions of the following paragraph (b), the Person formed by or
surviving any such consolidation or merger (if other than such Guarantor)
assumes all the obligations of such Guarantor, pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the Trustee in
respect of the Notes, this Indenture and such Guarantor's Guarantee, and
(ii) immediately after giving effect to such transaction, no Default or
Event of Default exists.
(b) In the event of a sale or other disposition of all or
substantially all of the assets of any Guarantor to a third party or an
Unrestricted Subsidiary in a transaction that does not violate any of the
covenants in this Indenture (including, without limitation, Section 4.23),
by way of merger, consolidation or otherwise, or a sale or other
disposition of all of the Equity Interest of any Guarantor, or the
designation of such Guarantor as an Unrestricted Subsidiary in accordance
with this Indenture, then (i) in the event of a sale or other disposition,
by way of such a merger, consolidation or otherwise, of all of the Equity
Interest of such Guarantor, or in the event of such designation, such
Guarantor will be released from and relieved of any obligations under its
Guarantee, or (ii) in the event of a sale or other disposition of all of
the assets of such Guarantor, the Person acquiring such assets will not be
required to assume the obligations of such Guarantor under its Guarantee.
Section 11.5 Additional Guarantors.
(a) The Company covenants and agrees that it will cause any
Person which becomes obligated to guarantee the Notes, pursuant to the
terms of this Indenture, including, without limitation Sections 4.14, 11.4
and Article 5 hereof, to promptly execute and deliver to the Trustee a
supplemental indenture pursuant to which such Subsidiary shall become a
Guarantor under this Article 11 and shall Guarantee the Obligations.
Concurrently with the execution and delivery of such supplemental
indenture, the Company shall deliver to the Trustee an Opinion of Counsel
and an Officers' Certificate to the effect that such supplemental indenture
has been duly authorized, executed and delivered by such Subsidiary and
that, subject to the application of bankruptcy, insolvency, moratorium,
fraudulent conveyance or transfer and other similar laws relating to
creditors' rights generally and to the principles of equity, whether
considered in a proceeding at law or in equity, the Guarantee of such
Guarantor is a legal, valid and binding obligation of such Guarantor,
enforceable against such Guarantor in accordance with its terms.
(b) Any Guarantor that is designated an Unrestricted Subsidiary
in accordance with the terms of this Indenture shall be released from and
relieved of its obligations under its Guarantee and any Unrestricted
Subsidiary that ceases to be an Unrestricted Subsidiary will be required to
execute a Guarantee in accordance with the terms of this Indenture.
ARTICLE 12
MISCELLANEOUS
Section 12.1 Supplemental Indenture.
This Amended and Restated Indenture is a supplemental indenture
pursuant to Section 8.02 of the Existing Indenture. Upon execution and
delivery of this Amended and Restated Indenture, the terms and conditions
of this Amended and Restated Indenture shall be part of the terms and
conditions of the Existing Indenture for any and all purposes, shall bind
all consenting Holders, and shall bind all non-consenting Holders to the
extent permitted by Section 8.02 of the Existing Indenture, and all the
terms and conditions of both shall be read together as though they
constitute one instrument, except that in case of conflict the provisions
of this Amended and Restated Indenture will control to the extent permitted
by Section 8.02 of the Existing Indenture. To the extent permitted by
applicable law and the Existing Indenture, only consenting Holders shall be
entitled to the benefits of Article 10 hereof and the Security Documents.
Section 12.2 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
Section 12.3 Notices.
Any notice or communication shall be given in writing and delivered in
person, sent by facsimile, delivered by commercial courier service or
mailed by first-class mail, postage prepaid, addressed as follows:
If to the Company or any Guarantor:
HealthCor Holdings, Inc.
8150 North Central Expressway
Suite M-2000
Dallas, Texas 75206
Attention: Chief Executive Officer
Telecopier No.: 214-692-4666
With a copy to:
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1700 Pacific Avenue, Suite 4100
Dallas, Texas 75201
Attention: J. Kenneth Menges, Jr., P.C.
Telecopier No.: 214-969-4343
If to the Trustee:
Norwest Bank Minnesota, N.A.
Corporate Trust Services
Sixth & Marquette
Minneapolis, MN 55479-0069
Attention: Corporate Trust Services
Telecopier No.: 612-667-9825
Such notices or communications shall be effective when received and
shall be sufficiently given if so given within the time prescribed in this
Indenture.
The Company, any Guarantors or the Trustee by written notice to the
others may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed to a Holder shall be mailed to him
by first-class mail, postage prepaid, at his address shown on the register
kept by the Registrar. If a notice or communication to a Holder is mailed
in the manner provided above, it shall be deemed duly given on the date so
deposited in the mail, whether or not the addressee receives it.
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.
In case, by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as
required by this Indenture, then such method of notification as shall be
made with the approval of the Trustee shall constitute a sufficient mailing
of such notice.
Section 12.4 Communications by Holders with Other Holders.
Pursuant to TIA 312(b), Holders may communicate with other Holders
with respect to their rights under this Indenture or the Securities. The
Company, the Guarantors, the Trustee, the Registrar and any other person
shall have the protection of TIA 312(c).
Section 12.5 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any Guarantor to the
Trustee to take any action under this Indenture, the Company shall furnish
to the Trustee at the request of the Trustee:
(1) an Officers' Certificate (which shall include the statements
set forth in Section 12.5) in form and substance reasonably satisfactory to
the Trustee 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;
(2) an Opinion of Counsel (which shall include the statements
set forth in Section 12.5) in form and substance reasonably satisfactory to
the Trustee stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied; and
(3) where applicable, a certificate or opinion by an independent
certified public accountant satisfactory to the Trustee that complies with
TIA 314(c).
Section 12.6 Statements Required in Certificate and Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, she or he
has made such examination or investigation as is necessary to enable her or
him to express an informed opinion as to whether or not such covenant or
condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such
person, such covenant or condition has been satisfied.
Section 12.7 When Treasury Notes Disregarded.
In determining whether the Holders of the required aggregate principal
amount of Notes have concurred in any action, waiver or consent, Notes
owned by the Company, any Guarantor or any other obligor on the Notes or by
any Affiliate of any of them shall be disregarded as though they were 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 which the Trustee actually knows are so owned shall be
so disregarded. Notes so owned which have been pledged in good faith shall
not be disregarded if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to the Notes and that
the pledgee is not the Company, a Guarantor or any other obligor upon the
Notes or any Affiliate of any of them.
Section 12.8 Rules by Trustee and Agents.
The Trustee may make reasonable rules in accordance with the Trustee's
customary practice for action by or at meetings of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements
for their functions.
Section 12.9 Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE
NOTES.
Section 12.10 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Company or any Subsidiary thereof. No
such indenture, loan, security or debt agreement may be used to interpret
this Indenture.
Section 12.11 No Recourse Against Others.
A director, officer, employee, stockholder or Affiliate, as such, of
the Company shall not have any liability for any obligations of the Company
under the Securities or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. Each
Noteholder by accepting a Note waives and releases all such liability.
Such waiver and release are part of the consideration for the issuance of
the Securities.
Section 12.12 Successors.
All agreements of the Company and the Guarantors in this Indenture and
the Securities shall bind their respective successors except as otherwise
provided in Section 11.4. All agreements of the Trustee, any additional
trustee and any Paying Agents in this Indenture shall bind their
successors.
Section 12.13 Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
Section 12.14 Table of Contents, Headings, Etc.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no
way modify or restrict any of the terms or provisions hereof.
Section 12.15 Separability.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, in any respect for any reason, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed, all as of the date and year first written above.
HEALTHCOR HOLDINGS, INC.
By:__________________________________
Name:
Title:
NORWEST BANK MINNESOTA, N.A.,
as Trustee
By:__________________________________
Name:
Title:
HEALTHCOR INC.
PHYSICIANS HOME HEALTH NETWORK, INC.
HEALTHCOR OXYGEN AND MEDICAL EQUIPMENT, INC.
HEALTHCOR REHABILITATION SERVICES, INC.
HEALTHCOR PHARMACY, INC.
HC PERSONNEL RESOURCES, INC.
CARE NETWORK, INC.
PHHN, INC.
HEALTHCOR FOUNDATION, as Guarantors
By:__________________________________
Name:
Title:
<PAGE>
EXHIBIT A
FORM OF NOTE
(FACE OF NOTE)
[Delete this paragraph in the case of a Certificated Note] 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 THEREOF, 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 2.6 OF THE INDENTURE, (II) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(b)
OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.10 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE COMPANY.
CUSIP NUMBER___________
HEALTHCOR HOLDINGS, INC.
Senior Note Due 2004
HEALTHCOR Holdings, Inc., a Delaware corporation (the "Company," which
term includes any successor corporation), for value received promises to
pay to __________________ or registered assigns the principal sum of
___________________ Dollars, on December 1, 2004.
Interest Payment Dates: June 1 and December 1, commencing June 1,
1998
Record Dates: May 15 and November 15
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at
this place.
[Intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Dated: [ ], __________________.
HEALTHCOR HOLDINGS, INC.
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
Certificate of Authentication:
This is one of the Senior Notes
due 2004 referred to in the within-
mentioned Indenture
NORWEST BANK MINNESOTA, N.A.,
as Trustee
By: ___________________________________
Name:
Title:
<PAGE>
(REVERSE SIDE)
HEALTHCOR HOLDINGS, INC.
Senior Note Due 2004
1. INTEREST.
(a) HealthCor Holdings, Inc., a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Note at a rate of
11% per annum from the date of original issuance until maturity. Interest
is payable semi-annually in arrears on June 1 and December 1 of each year,
commencing on June 1, 1998, to Holders of record of the Notes at the close
of business on the immediately preceding May 15 and November 15,
respectively (whether or not a Business Day). Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of original issuance. Interest will
be computed on the basis of a 360-day year consisting of twelve 30-day
months. The Notes will be issued in denominations of $1,000 and any
integral multiple of $1,000. The Company shall pay interest on overdue
principal at 12% per annum, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
2. METHOD OF PAYMENT.
The Company will pay interest on the Notes (except defaulted interest)
to the Persons who are registered Holders of Notes at the close of business
on each May 15 and November 15 immediately preceding an 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 2.11 of
the Indenture with respect to defaulted interest. If this Note is a Global
Note, payments in respect of this Note (including principal, premium and
interest) shall be made by wire transfer of immediately available funds to
the accounts specified by the Holder hereof. If this Note is a
Certificated Note, the Company will make all payments of principal, premium
and interest by wire transfer of immediately available funds to the
accounts specified by the Holder hereof or, if no such account is
specified, by mailing a check to such Holder's registered address. 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, Norwest Bank Minnesota, N.A., the Trustee under the
Indenture, will act as Paying Agent.
4. INDENTURE.
The Company issued this Note under an Amended and Restated Indenture
dated as of [ ], 1999 (as such may be amended, supplemented or
otherwise modified from time to time, the "Indenture") among the Company,
the Guarantors and the Trustee. The terms of this Note include those
stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S. Code 77aaa-77bbbb) as in
effect on the date of the Indenture. This Note is subject to all such
terms, and the Holder of this Note should refer to the Indenture and said
Trust Indenture Act for a statement of them. All capitalized terms in this
Note, unless otherwise defined, have the meanings assigned to them in the
Indenture. The Notes will be limited to up to $80,000,000 in initial
aggregate principal amount.
5. COLLATERAL
Payment of the principal of and interest on the Notes is secured by
security interests in certain collateral.
6. OPTIONAL REDEMPTION.
The Notes will be redeemable at the option of the Company, in whole,
but not in part, at the Redemption Price calculated in accordance with
Section 3.1 of the Indenture.
7. OFFERS TO PURCHASE.
The Indenture requires that certain proceeds from Asset Sales be used,
subject to further limitations contained therein, to make an offer to
purchase certain amounts of Notes in accordance with the procedures set
forth in the Indenture. In the event of a Change of Control, the Indenture
also requires the Company, subject to further limitations contained
therein, to make an offer to purchase certain amounts of Notes in
accordance with the procedures set forth in the Indenture. In each case,
Notes will be redeemed at 100% of the principal amount of the Notes, plus
accrued and unpaid interest.
8. NOTICE OF REDEMPTION.
Notice of redemption will be mailed via first class mail at least 30
days but not more than 45 days prior to the Redemption Date to each Holder
of Notes to be redeemed at its registered address as it shall appear on the
register of the Notes maintained by the Registrar. On and after the
Redemption Date or the Sale Date, as the case may be, interest will cease
to accrue on the Notes unless the Company shall fail to deposit the
Redemption Price or the Sale Price, as the case may be, of such Notes with
the paying agent.
9. DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons in denominations of
$1,000 and integral multiples thereof. A Holder may register the transfer
or exchange of Notes in accordance with 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 Registrar need not register the transfer of or exchange any
Note selected for redemption or register the transfer of or exchange any
Note for a period of 15 days before a selection of Notes to be redeemed or
any Note after it is called for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
10. PERSONS DEEMED OWNERS.
The registered Holder of this Note may be treated as the owner of it
for all purposes.
11. UNCLAIMED MONEY.
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must
look only to the Company and not to the Trustee or the Paying Agent for
payment.
12. AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture, the Notes and the
Guarantees thereof may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the then outstanding
Notes, and any existing default or compliance with any provision of the
Indenture, the Notes or the Guarantees may be waived with the consent of
the Holders of a majority in principal amount of the then outstanding
Notes. Certain amendments specified in the Indenture shall not be
effective against a Holder without the consent of such Holder (or a prior
Holder). Without the consent of any Holder of a Note, the Company and/or
one or more of the Guarantors and the Trustee may amend or supplement the
Indenture, the Notes or any Guarantee thereof 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 any Guarantor's obligations to Holders of the Notes in case of a merger
or consolidation, to make any change that does not adversely affect the
legal rights under the Indenture of any such Holder, to evidence and
provide for the acceptance of appointment under the Indenture by a
successor Trustee with respect to the Notes or to add additional guarantors
with respect to the Notes.
13. TRUSTEE DEALINGS WITH THE COMPANY.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for
the Company, any Guarantor or their Affiliates, and may otherwise deal with
the Company, any Guarantor or their Affiliates, as if it were not the
Trustee.
14. NO RECOURSE AGAINST OTHERS.
As more fully described in the Indenture, a director, officer,
employee, partner, affiliate, beneficiary or stockholder, as such, of the
Company or any Guarantor shall not have any liability for any obligations
of the Company or any Guarantor under the Notes, the Guarantees or the
Indenture or for any claim based on, in respect or by reason of, such
obligations or their creation. The Holder of this Note by accepting this
Note waives and releases all such liability. The waiver and release are
part of the consideration for the issuance of this Note.
15. DEFEASANCE AND COVENANT DEFEASANCE.
The Indenture contains provisions for defeasance of the entire
indebtedness on this Note and for defeasance of certain covenants in the
Indenture upon compliance by the Company with certain conditions set forth
in the Indenture.
16. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder of a Note
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and
not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to
be printed on the Notes and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders of the Notes. No representation is
made as to the accuracy of such numbers either as printed on the Notes or
as contained in any notice of redemption and reliance may be placed only on
the other identification numbers placed thereon.
18. GOVERNING LAW.
THE INDENTURE, THE NOTES AND THE GUARANTEES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO
AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE OR
THE NOTES.
THE COMPANY WILL FURNISH TO ANY HOLDER OF A NOTE UPON WRITTEN REQUEST
AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO:
HealthCor Holdings, Inc.
8150 North Central Expressway
Suite M-2000
Dallas, Texas 75206
Attention: General Counsel
19. AUTHENTICATION
This Note shall not be valid until the Trustee or an authenticating
agent manually signs the Certificate of Authentication on the other side of
this Note.
20. INDEMNIFICATION
The Holder of this Note, by acceptance hereof, agrees to indemnify the
Company and the Trustee against any liability that may result from the
transfer, exchange or assignment of this Note in violation of any provision
of the Indenture and/or applicable U.S. Federal or state securities law.
<PAGE>
ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
Agent to transfer this Note on the books of the Company. The
Agent may substitute another to act for him.
The Trustee or Registrar shall not be obligated to register this
Note in the name of any person other than the Holder hereof unless and
until the conditions to any such transfer of registration set forth herein
and in Section 2.6 (Transfer and Exchange) of the Indenture shall have been
satisfied.
Date: _______________________
Your Signature: _________________________________________________________
(Sign exactly as your name appears on the other side of
this Note)
Signature Guarantee: ____________________________________________________
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased by
the Company pursuant to Section 4.22 or Section 4.23 of the Indenture,
check the appropriate box:
/ / Section 4.22
/ / Section 4.23
If you want to have only part of the Note purchased by the Company
pursuant to Section 4.22 or Section 4.23 of this Indenture, state the
principal amount you elect to have purchased.
$______________________
(multiple of $1,000)
Date: __________________
Your Signature: ______________________________________________________
(Sign exactly as your name appears on the face of this
Note)
__________________________________________
Signature Guaranteed
<PAGE>
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note have been made:
- -------------- -------------- -------------- -------------- --------------
Date of Amount of Amount of Principal Signature of
Exchange decrease in increase in Amount of this authorized
Principal Principal Global Note officer of
Amount of this Amount of this following such Trustee or
Global Note Global Note decrease (or Note Custodian
increase)
<PAGE>
FORM OF NOTATION ON NOTE RELATING TO GUARANTEE
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 full and punctual payment of the principal and accrued and
unpaid interest, if any, on the Notes.
Each Guarantor's liability shall be limited as set forth in Section
11.3 of the Indenture, and Guarantors may be released from the Guarantee as
provided in Sections 9.1, 9.2, 9.3 and 11.4 of the Indenture.
The provision of Article 11 of the Indenture are incorporated herein
by reference. Capitalized terms used herein have the same meanings given
in the Indenture unless otherwise indicated.
HEALTHCOR INC.
PHYSICIANS HOME HEALTH NETWORK, INC.
HEALTHCOR OXYGEN AND MEDICAL
EQUIPMENT, INC.
HEALTHCOR REHABILITATION SERVICES, INC.
HEALTHCOR PHARMACY, INC.
HC PERSONNEL RESOURCES, INC.
CARE NETWORK, INC., as Guarantors
By: __________________________________
Name:
Title:
