8-K: Current report filing
Published on January 4, 2006
OMEGA
HEALTHCARE INVESTORS, INC.
as
Issuer,
the
SUBSIDIARY GUARANTORS named herein,
as
Subsidiary Guarantors,
and
as
Trustee
________________________
INDENTURE
________________________
Dated
as
of December
30, 2005
7%
Senior
Notes due 2016
CROSS-REFERENCE
TABLE
Trust
Indenture Act Indenture
Section Section
|
310
|
(a)(1)
|
7.10
|
|
(a)(2)
|
7.10
|
|
(a)(3)
|
N.A.
|
|
(a)(4)
|
N.A.
|
|
(a)(5)
|
7.08;
7.10
|
|
(b)
|
7.08;
7.10; 12.02
|
|
(c)
|
N.A.
|
|
311
|
(a)
|
7.11
|
|
(b)
|
7.11
|
|
(c)
|
N.A.
|
|
312
|
(a)
|
2.05
|
|
(b)
|
11.03
|
|
(c)
|
11.03
|
|
313
|
(a)
|
7.06
|
|
(b)(1)
|
7.06
|
|
(b)(2)
|
7.06
|
|
(c)
|
7.06;
11.02
|
|
(d)
|
7.06
|
|
314
|
(a)
|
4.05;
4.15; 11.02
|
|
(b)
|
N.A.
|
|
(c)(1)
|
7.02;
11.04; 11.05
|
|
(c)(2)
|
7.02;
11.04; 11.05
|
|
(c)(3)
|
N.A.
|
|
(d)
|
N.A.
|
|
(e)
|
11.05
|
|
(f)
|
N.A.
|
|
315
|
(a)
|
7.01(b);
7.02(a)
|
|
(b)
|
7.05;
11.02
|
|
(c)
|
7.01
|
|
(d)
|
6.05;
7.01(c)
|
|
(e)
|
6.11
|
|
316
|
(a)(last
sentence)
|
2.09
|
|
(a)(1)(A)
|
6.05
|
|
(a)(1)(B)
|
6.04
|
|
(a)(2)
|
9.02
|
|
(b)
|
6.07
|
|
(c)
|
9.04
|
|
317
|
(a)(1)
|
6.08
|
|
(a)(2)
|
6.09
|
|
(b)
|
2.04
|
|
318
|
(a)
|
11.01
|
|
(c)
|
11.01
|
N.A.
means Not Applicable
Note:
This
Cross-Reference Table shall not, for any purpose, be deemed to be a part of
this
Indenture.
TABLE
OF
CONTENTS
Page
|
ARTICLE
ONE
|
|
|
DEFINITIONS
AND INCORPORATION BY REFERENCE
|
|
|
SECTION
1.01.Definitions.
|
1
|
|
SECTION
1.02.Other Definitions.
|
22
|
|
SECTION
1.03.Incorporation by Reference of Trust Indenture Act.
|
23
|
|
SECTION
1.04.Rules of Construction.
|
23
|
|
ARTICLE
TWO
|
|
|
THE
NOTES
|
|
|
SECTION
2.01.Form and Dating.
|
24
|
|
SECTION
2.02.Execution, Authentication and Denomination; Additional Notes;
Exchange Notes
|
25
|
|
SECTION
2.03.Registrar and Paying Agent.
|
26
|
|
SECTION
2.04.Paying Agent To Hold Assets in Trust.
|
27
|
|
SECTION
2.05.Holder Lists.
|
27
|
|
SECTION
2.06.Transfer and Exchange.
|
27
|
|
SECTION
2.07.Replacement Notes.
|
28
|
|
SECTION
2.08.Outstanding Notes.
|
28
|
|
SECTION
2.09.Treasury Notes.
|
29
|
|
SECTION
2.10.Temporary Notes.
|
29
|
|
SECTION
2.11.Cancellation.
|
29
|
|
SECTION
2.12.Defaulted Interest.
|
29
|
|
SECTION
2.13.CUSIP and ISIN Numbers.
|
30
|
|
SECTION
2.14.Deposit of Moneys.
|
30
|
|
SECTION
2.15.Book-Entry Provisions for Global Notes.
|
30
|
|
SECTION
2.16.Special Transfer and Exchange Provisions.
|
31
|
|
ARTICLE
THREE
|
|
|
REDEMPTION
|
|
|
SECTION
3.01.Notices to Trustee.
|
35
|
|
SECTION
3.02.Selection of Notes To Be Redeemed.
|
35
|
|
SECTION
3.03.Notice of Redemption.
|
35
|
|
SECTION
3.04.Effect of Notice of Redemption.
|
36
|
|
SECTION
3.05.Deposit of Redemption Price.
|
37
|
|
SECTION
3.06.Notes Redeemed in Part.
|
37
|
|
ARTICLE
FOUR
|
|
|
COVENANTS
|
|
|
SECTION
4.01.Payment of Notes.
|
37
|
|
SECTION
4.02.Maintenance of Office or Agency.
|
37
|
|
SECTION
4.03.Corporate Existence.
|
38
|
|
SECTION
4.04.Payment of Taxes.
|
38
|
|
SECTION
4.05.Compliance Certificate; Notice of Default.
|
38
|
|
SECTION
4.06.Waiver of Stay, Extension or Usury Laws.
|
39
|
|
SECTION
4.07.Change of Control.
|
39
|
|
SECTION
4.08.Limitations on Additional Indebtedness.
|
39
|
|
SECTION
4.09.Limitations on Restricted Payments.
|
42
|
|
SECTION
4.10.Maintenance of Total Unencumbered Assets.
|
45
|
|
SECTION
4.11.Limitations on Asset Sales.
|
45
|
|
SECTION
4.12.Limitations on Transactions with Affiliates.47
|
|
|
SECTION
4.13.Limitations on Dividend and Other Payment
Restrictions
|
|
|
Affecting
Restricted Subsidiaries.
|
48
|
|
SECTION
4.14.Limitation on Issuances of Guarantees by Restricted
|
|
|
Subsidiaries.
|
50
|
|
SECTION
4.15.Reports to Holders.
|
50
|
|
SECTION
4.16.Suspension of Covenants
|
51
|
|
RTICLE
FIVE
|
|
|
SUCCESSOR
CORPORATION
|
|
|
SECTION
5.01.Consolidation, Merger and Sale of Assets.
|
52
|
|
ARTICLE
SIX
|
|
|
DEFAULT
AND REMEDIES
|
|
|
SECTION
6.01.Events of Default.
|
54
|
|
SECTION
6.02.Acceleration.
|
55
|
|
SECTION
6.03.Other Remedies.
|
56
|
|
SECTION
6.04.Waiver of Past Defaults.
|
56
|
|
SECTION
6.05.Control by Majority.
|
57
|
|
SECTION
6.06.Limitation on Suits.
|
57
|
|
SECTION
6.07.Rights of Holders To Receive Payment.
|
57
|
|
SECTION
6.08.Collection Suit by Trustee.
|
58
|
|
SECTION
6.09.Trustee May File Proofs of Claim.
|
58
|
|
SECTION
6.10.Priorities.
|
58
|
|
SECTION
6.11.Undertaking for Costs.
|
59
|
|
ARTICLE
SEVEN
|
|
|
TRUSTEE
|
|
|
SECTION
7.01.Duties of Trustee.
|
59
|
|
SECTION
7.02.Rights of Trustee.
|
60
|
|
SECTION
7.03.Individual Rights of Trustee.
|
61
|
|
SECTION
7.04.Trustee’s Disclaimer.
|
62
|
|
SECTION
7.05.Notice of Default.
|
62
|
|
SECTION
7.06.Reports by Trustee to Holders.
|
62
|
|
SECTION
7.07.Compensation and Indemnity.
|
62
|
|
SECTION
7.08.Replacement of Trustee.
|
63
|
|
SECTION
7.09.Successor Trustee by Merger, Etc.
|
64
|
|
SECTION
7.10.Eligibility; Disqualification.
|
64
|
|
SECTION
7.11.Preferential Collection of Claims Against the Issuer.
|
65
|
|
ARTICLE
EIGHT
|
|
|
DISCHARGE
OF INDENTURE; DEFEASANCE
|
|
|
SECTION
8.01.Termination of the Issuer’s Obligations.
|
65
|
|
SECTION
8.02.Legal Defeasance and Covenant Defeasance.
|
66
|
|
SECTION
8.03.Conditions to Legal Defeasance or Covenant
Defeasance.
|
67
|
|
SECTION
8.04.Application of Trust Money.
|
68
|
|
SECTION
8.05.Repayment to the Issuer.
|
69
|
|
SECTION
8.06.Reinstatement.
|
69
|
|
ARTICLE
NINE
|
|
|
AMENDMENTS,
SUPPLEMENTS AND WAIVERS
|
|
|
SECTION
9.01.Without Consent of Holders.
|
69
|
|
SECTION
9.02.With Consent of Holders.
|
70
|
|
SECTION
9.03.Compliance with the Trust Indenture Act.
|
71
|
|
SECTION
9.04.Revocation and Effect of Consents.
|
71
|
|
SECTION
9.05.Notation on or Exchange of Notes.
|
72
|
|
SECTION
9.06.Trustee To Sign Amendments, Etc.
|
72
|
|
ARTICLE
TEN
|
|
|
SUBSIDIARY
GUARANTEE
|
|
|
SECTION
10.01.Guarantee.
|
72
|
|
SECTION
10.02.Limitation on Subsidiary Guarantor Liability.
|
73
|
|
SECTION
10.03.Execution and Delivery of Subsidiary Guarantee.
|
74
|
|
SECTION
10.04.Release of a Subsidiary Guarantor.
|
74
|
|
ARTICLE
ELEVEN
|
|
|
MISCELLANEOUS
|
|
|
SECTION
11.01.Trust Indenture Act Controls.
|
75
|
|
SECTION
11.02.Notices.
|
75
|
|
SECTION
11.03.Communications by Holders with Other Holders.
|
76
|
|
SECTION
11.04.Certificate and Opinion as to Conditions Precedent.
|
76
|
|
SECTION
11.05.Statements Required in Certificate or Opinion.
|
77
|
|
SECTION
11.06.Rules by Paying Agent or Registrar.
|
77
|
|
SECTION
11.07.Legal Holidays.
|
77
|
|
SECTION
11.08.Governing Law.
|
77
|
|
SECTION
11.09.No Adverse Interpretation of Other Agreements.
|
77
|
|
SECTION
11.10.No Recourse Against Others.
|
78
|
|
SECTION
11.11.Successors.
|
78
|
|
SECTION
11.12.Duplicate Originals.
|
78
|
|
SECTION
11.13.Severability.
|
78
|
|
SIGNATURES
|
S-1
|
Exhibit A - Form
of
Note
Exhibit B - Form
of
Legends
Exhibit C - Form
of
Certificate To Be Delivered in Connection with Transfers to Non-QIB Accredited
Investors
Exhibit D - Form
of
Certificate To Be Delivered in Connection with Transfers Pursuant to Regulation
S
Exhibit E - Form
of
Notation of Subsidiary Guarantee
|
Note:
|
This
Table of Contents shall not, for any purpose, be deemed to be part
of this
Indenture.
|
INDENTURE
dated as of December 30, 2005 among Omega Healthcare Investors, Inc., a Maryland
corporation (the “Issuer”),
and
each of the Subsidiary Guarantors named herein, as Subsidiary Guarantors, and
U.S. Bank National Association, a national banking association organized and
existing under the laws of the United States of America, as Trustee (the
“Trustee”).
The
Issuer has duly authorized the creation of an issue of 7% Senior Notes due
2016
and, to provide therefor, the Issuer and the Subsidiary Guarantors have duly
authorized the execution and delivery of this Indenture. All things necessary
to
make the Notes, when duly issued and executed by the Issuer and authenticated
and delivered hereunder, the valid and binding obligations of the Issuer and
to
make this Indenture a valid and binding agreement of the Issuer and the
Subsidiary Guarantors have been done.
THIS
INDENTURE WITNESSETH
For
and
in consideration of the premises and the purchase of the Notes by the Holders
thereof, the parties hereto covenant and agree, for the equal and proportionate
benefit of all Holders, as follows:
ARTICLE
ONE
DEFINITIONS
AND INCORPORATION BY REFERENCE
| SECTION 1.01. |
Definitions.
|
Set
forth
below are certain defined terms used in this Indenture.
“Acquired
Indebtedness”
means
Indebtedness of a Person existing at the time such Person becomes a Restricted
Subsidiary or that is assumed in connection with an Asset Acquisition from
such
Person by a Restricted Subsidiary and not incurred by such Person in connection
with, or in anticipation of, such Person becoming a Restricted Subsidiary or
such Asset Acquisition; provided,
however,
that
Indebtedness of such Person that is redeemed, defeased, retired or otherwise
repaid at the time of or immediately upon consummation of the transactions
by
which such Person becomes a Restricted Subsidiary or such Asset Acquisition
shall not be Acquired Indebtedness.
“Additional
Interest”
has the
meaning set forth in the Registration Rights Agreement.
“Adjusted
Consolidated Net Income”
means,
for any period, the aggregate net income (or loss) (before giving effect to
cash
dividends on preferred stock of the Issuer or charges resulting from the
redemption of preferred stock of the Issuer) of the Issuer and its Restricted
Subsidiaries for such period determined on a consolidated basis in conformity
with GAAP; provided,
however,
that the
following items shall be excluded in computing Adjusted Consolidated Net Income,
without duplication:
(1) the
net
income of any Person, other than the Issuer or a Restricted Subsidiary, except
to the extent of the amount of dividends or other distributions actually paid
to
the Issuer or any of its Restricted Subsidiaries by such Person during such
period;
(2) the
net
income of any Restricted Subsidiary to the extent that the declaration or
payment of dividends or similar distributions by such Restricted Subsidiary
of
such net income is not at the time permitted by the operation of the terms
of
its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to such Restricted
Subsidiary;
(3) any
after-tax gains or losses attributable to Asset Sales; and
(4) all
extraordinary gains and extraordinary losses.
“Adjusted
Consolidated Net Tangible Assets”
means
the total amount of assets of the Issuer and its Restricted Subsidiaries (less
applicable depreciation, amortization and other valuation reserves), except
to
the extent resulting from write-ups of capital assets (excluding write-ups
in
connection with accounting for acquisitions in conformity with GAAP), after
deducting from the total amount of assets:
(1) all
liabilities of the Issuer and its Restricted Subsidiaries that are classified
as
current liabilities in accordance with GAAP, excluding intercompany items;
and
(2) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles,
all
as
set forth on the most recent quarterly or annual consolidated balance sheet
of
the Issuer and its Restricted Subsidiaries, prepared in conformity with GAAP
and
filed with the SEC or provided to the Trustee pursuant to
Section 4.15.
“Adjusted
Total Assets”
means,
for any Person, the sum of:
(1) Total
Assets for such Person as of the end of the fiscal quarter preceding the
Transaction Date as set forth on the most recent quarterly or annual
consolidated balance sheet of the Issuer and its Restricted Subsidiaries,
prepared in conformity with GAAP and filed with the SEC or provided to the
Trustee pursuant to Section 4.15; and
(2) any
increase in Total Assets following the end of such quarter including, without
limitation, any increase in Total Assets resulting from the application of
the
proceeds of any additional Indebtedness.
“Affiliate”
means,
as applied to any Person, any other Person directly or indirectly controlling,
controlled by, or under direct or indirect common control with, such Person.
For
purposes of this definition, “control”
(including, with correlative meanings, the terms “controlling,”“controlled
by”
and
“under
common control with”),
as
applied to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise.
“Agent”
means
any Registrar or Paying Agent.
“amend”
means
to amend, supplement, restate, amend and restate or otherwise modify, including
successively; and “amendment”
shall
have a correlative meaning.
“Asset
Acquisition”
means:
(1) an
investment by the Issuer or any of its Restricted Subsidiaries in any other
Person pursuant to which such Person shall become a Restricted Subsidiary or
shall be merged into or consolidated with the Issuer or any of its Restricted
Subsidiaries; provided,
however,
that
such Person’s primary business is related, ancillary, incidental or
complementary to the businesses of the Issuer or any of its Restricted
Subsidiaries on the date of such investment; or
(2) an
acquisition by the Issuer or any of its Restricted Subsidiaries from any other
Person of assets that constitute substantially all of a division or line of
business, or one or more healthcare properties, of such Person; provided,
however,
that the
assets and properties acquired are related, ancillary, incidental or
complementary to the businesses of the Issuer or any of its Restricted
Subsidiaries on the date of such acquisition.
“Asset
Disposition”
means
the sale or other disposition by the Issuer or any of its Restricted
Subsidiaries, other than to the Issuer or another Restricted Subsidiary,
of:
(1) all
or
substantially all of the Capital Stock of any Restricted Subsidiary;
or
(2) all
or
substantially all of the assets that constitute a division or line of business,
or one or more healthcare properties, of the Issuer or any of its Restricted
Subsidiaries.
“Asset
Sale”
means
any sale, transfer or other disposition, including by way of merger,
consolidation or sale-leaseback transaction, in one transaction or a series
of
related transactions by the Issuer or any of its Subsidiaries to any Person
other than the Issuer or any of its Restricted Subsidiaries of:
(1) all
or
any of the Capital Stock of any Restricted Subsidiary;
(2) all
or
substantially all of the property and assets of an operating unit or business
of
the Issuer or any of its Restricted Subsidiaries; or
(3) any
other
property and assets of the Issuer or any of its Restricted Subsidiaries outside
the ordinary course of business of the Issuer or such Restricted Subsidiary
and,
in each case, that is not governed by the provisions of
Section 5.01;
provided,
however,
that
“Asset Sale” shall not include:
(1) sales
or
other dispositions of inventory, receivables and other current
assets;
(2) the
sale,
conveyance, transfer, lease, disposition or other transfer of all or
substantially all of the assets of the Issuer as permitted under
Section 5.01;
(3) any
Restricted Payment permitted by Section 4.09 or that constitutes a
Permitted Investment;
(4) sales,
transfers or other dispositions of assets with a fair market value not in excess
of $5 million in any transaction or series of related
transactions;
(5) sales
or
other dispositions of assets for consideration at least equal to the fair market
value of the assets sold or disposed of, to the extent that the consideration
received would satisfy Section 4.11(b)(1)(ii);
(6) sales
or
other dispositions of Temporary Cash Investments;
(7) the
creation or realization of any Lien permitted under this Indenture;
(8) transfers
of damaged, worn-out or obsolete equipment or assets that, in the Issuer’s
reasonable judgment, are no longer used or useful in the business of the Issuer
or its Restricted Subsidiaries; or
(9) sales
or
other dispositions of any of the Closed Facilities as in existence on the
Closing Date.
“Average
Life”
means
at any date of determination with respect to any debt security, the quotient
obtained by dividing:
(1) the
sum
of the products of:
|
(x)
|
the
number of years from such date of determination to the dates of each
successive scheduled principal payment of such debt security,
and
|
(y) the
amount of such principal payment; by
(2) the
sum
of all such principal payments.
“Bankruptcy
Law”
means
Title 11 of the United States Code, as amended, or any insolvency or other
similar federal or state law for the relief of debtors.
“Board
of Directors”
means,
as to any Person, the board of directors (or similar governing body) of such
Person or any duly authorized committee thereof.
“Board
Resolution”
means,
with respect to any Person, a copy of a resolution certified by the Secretary
or
an Assistant Secretary of such Person to have been duly adopted by the Board
of
Directors of such Person and to be in full force and effect on the date of
such
certification, and delivered to the Trustee.
“Business
Day”
means a
day other than a Saturday, Sunday or other day on which banking institutions
in
New York or Maryland are authorized or required by law to close.
“Capital
Stock”
means,
with respect to any Person, any and all shares, interests, participations or
other equivalents (however designated, whether voting or non-voting), including
partnership interests, whether general or limited, in the equity of such Person,
whether outstanding on the Closing Date or issued thereafter, including all
Common Stock and Preferred Stock.
“Capitalized
Lease”
means,
as applied to any Person, any lease of any property, whether real, personal
or
mixed, of which the discounted present value of the rental obligations of such
Person as lessee, in conformity with GAAP, is required to be capitalized on
the
balance sheet of such Person.
“Capitalized
Lease Obligations”
means
the discounted present value of the rental obligations under a Capitalized
Lease
as reflected on the balance sheet of such Person determined in conformity with
GAAP.
“Change
of Control”
means
the occurrence of one or more of the following events:
(1) any
sale,
lease, exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the Issuer to any
“person” or “group” (as such terms are defined in Sections 13(d) and
14(d)(2) of the Exchange Act), together with any Affiliates thereof (whether
or
not otherwise in compliance with the provisions of this Indenture);
(2) a
“person” or “group” (as such terms are defined in Sections 13(d) and
14(d)(2) of the Exchange Act), becomes the ultimate “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act) of more than 50% of the
total
voting power of the Voting Stock of the Issuer on a fully diluted
basis;
(3) the
approval by the holders of Capital Stock of the Issuer of any plan or proposal
for the liquidation or dissolution of the Issuer (whether or not otherwise
in
compliance with the provisions of this Indenture); or
(4) individuals
who on the Closing Date constitute the Board of Directors (together with any
new
or replacement directors whose election by the Board of Directors or whose
nomination by the Board of Directors for election by the Issuer’s shareholders
was approved by a vote of at least a majority of the members of the Board of
Directors then still in office who either were members of the Board of Directors
on the Closing Date or whose election or nomination for election was so
approved) cease for any reason to constitute a majority of the members of the
Board of Directors then in office.
“Closing
Date”
means
December 30, 2005.
“Closed
Facilities”
means
each of:
(1) Eldorado
Care Center, SNF, 918 Third Street, Saline, IL 62930; and
(2) Magnolia
Manor, SNF, 2101 Metropolis Street, Massac, IL 62960.
“Code”
means
the Internal Revenue Code of 1986, as amended.
“Common
Stock”
means,
with respect to any Person, any and all shares, interests, participations or
other equivalents (however designated, whether voting or non-voting) that have
no preference on liquidation or with respect to distributions over any other
class of Capital Stock, including partnership interests, whether general or
limited, of such Person’s equity, whether outstanding on the Closing Date or
issued thereafter, including all series and classes of common
stock.
“Consolidated
EBITDA”
means,
for any period, Adjusted Consolidated Net Income for such period plus, to the
extent such amount was deducted in calculating such Adjusted Consolidated Net
Income (without duplication):
(1) Consolidated
Interest Expense (plus the premium, fees and expenses, and the amortization
thereof, payable in connection with the isssuance and sale of the 7% Senior
Notes due 2014 on March 22, 2004);
(2) income
taxes (other than income taxes (either positive or negative) attributable to
extraordinary and non-recurring gains or losses or sales of
assets);
(3) depreciation
expense;
(4) amortization
expense;
(5) non-cash
charges resulting from the write-down of the value of accounts receivable and/or
notes receivable in an aggregate amount from March 22, 2004 not in excess of
$5 million; and
(6) all
other
non-cash items reducing Adjusted Consolidated Net Income (other than items
that
will require cash payments and for which an accrual or reserve is, or is
required by GAAP to be, made);
less
all
non-cash items increasing Adjusted Consolidated Net Income, all as determined
on
a consolidated basis for the Issuer and its Restricted Subsidiaries in
conformity with GAAP; provided,
however,
that, if
any Restricted Subsidiary is not a Wholly Owned Restricted Subsidiary,
Consolidated EBITDA shall be reduced (to the extent not already reduced in
Adjusted Consolidated Net Income or otherwise reduced in accordance with GAAP)
by an amount equal to:
|
(x)
|
the
amount of the Adjusted Consolidated Net Income attributable to such
Restricted Subsidiary multiplied
by
|
|
(y)
|
the
percentage ownership interest in the income of such Restricted Subsidiary
not owned on the last day of such period by the Issuer or any of
its
Restricted Subsidiaries.
|
“Consolidated
Interest Expense”
means,
for any period, the aggregate amount of interest expense in respect of
Indebtedness of the Issuer and the Restricted Subsidiaries during such period,
all as determined on a consolidated basis in conformity with GAAP including
(without duplication):
(1) amortization
of debt issuance costs, debt discount or premium and other financing fees and
expenses;
(2) the
interest portion of any deferred payment obligations;
(3) all
commissions, discounts and other fees and expenses owed with respect to letters
of credit and bankers’ acceptance financing;
(4) the
net
costs associated with Interest Rate Agreements and Indebtedness that is
Guaranteed or secured by assets of the Issuer or any of its Restricted
Subsidiaries; and
(5) all
but
the principal component of rentals in respect of Capitalized Lease Obligations
paid, accrued or scheduled to be paid or to be accrued by the Issuer and its
Restricted Subsidiaries;
excluding,
to the
extent included in interest expense above, (x) the amount of such interest
expense of any Restricted Subsidiary if the net income of such Restricted
Subsidiary is excluded in the calculation of Adjusted Consolidated Net Income
pursuant to clause (2) of the definition thereof (but only in the same
proportion as the net income of such Restricted Subsidiary is excluded from
the
calculation of Adjusted Consolidated Net Income pursuant to clause (2)
of
the definition thereof), and (y) any premium, fees and expenses, and
the
amortization thereof, payable in connection with the issuance and sale of the
7%
Senior Notes due 2014 on March 22, 2004, all as determined on a consolidated
basis (without taking into account Unrestricted Subsidiaries) in conformity
with
GAAP.
“Corporate
Trust Office”
means
the corporate trust office of the Trustee located at 1360 Peachtree Street,
N.E., Suite 1105, EX-GA-ATPT, Atlanta, Georgia 30309, Attention: Corporate
Trust
Department, or such other office, designated by the Trustee by written notice
to
the Issuer, at which at any particular time its corporate trust business shall
be administered.
“Currency
Agreement”
means
any foreign exchange contract, currency swap agreement or other similar
agreement or arrangement.
“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.
“Depository”
means
The Depository Trust Company, New York, New York, or a successor thereto
registered under the Exchange Act or other applicable statute or
regulation.
“Disqualified
Stock”
means
any class or series of Capital Stock of any Person that by its terms or
otherwise is:
(1) required
to be redeemed prior to the Stated Maturity of the Notes,
(2) redeemable
at the option of the holder of such class or series of Capital Stock, at any
time prior to the Stated Maturity of the Notes, or
(3) convertible
into or exchangeable for Capital Stock referred to in clause (1) or
(2) above or Indebtedness having a scheduled maturity prior to the Stated
Maturity of the Notes;
provided,
however,
that any
Capital Stock that would not constitute Disqualified Stock but for provisions
thereof giving holders thereof the right to require such Person to repurchase
or
redeem such Capital Stock upon the occurrence of an “asset sale” or “change of
control” occurring prior to the Stated Maturity of the Notes shall not
constitute Disqualified Stock if the “asset sale” or “change of control”
provisions applicable to such Capital Stock are no more favorable to the holders
of such Capital Stock than the provisions contained in Sections 4.07
and
4.11 and such Capital Stock specifically provides that such Person will not
repurchase or redeem any such stock pursuant to such provisions prior to the
Issuer’s repurchase of the Notes as are required to be repurchased pursuant to
Sections 4.07 and 4.11.
“Equity
Offering”
means a
public or private offering of Capital Stock (other than Disqualified Stock)
of
the Issuer.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, or any successor statute or
statutes thereto.
“Exchange
Notes”
has the
meaning set forth in the Registration Rights Agreement.
“Exchange
Offer”
means
the offer that may be made by the Issuer pursuant to the Registration Rights
Agreement to exchange Notes bearing the Private Placement Legend for the
Exchange Notes.
“fair
market value”
means
the price that would be paid in an arm’s-length transaction between an informed
and willing seller under no compulsion to sell and an informed and willing
buyer
under no compulsion to buy, as determined in good faith by the Board of
Directors of the Issuer, whose determination shall be conclusive if evidenced
by
a Board Resolution.
“Funds
From Operations”
for any
period means the consolidated net income of the Issuer and its Restricted
Subsidiaries for such period determined in conformity with GAAP after
adjustments for unconsolidated partnerships and joint ventures, plus
depreciation of real property (including furniture and equipment) and other
real
estate assets and excluding (to the extent such amount was deducted in
calculating such consolidated net income):
(1) gains
or
losses from (a) restructuring of Indebtedness or (b) sales of
properties;
(2) non-cash
asset impairment charges;
(3) cash
litigation charges incurred in an amount not to exceed
$5 million;
(4) non-cash
charges associated with the write-down of the value of accounts and/or notes
receivable in an amount not to exceed $5 million;
(5) non-cash
charges related to redemptions of Preferred Stock of the Issuer;
(6) satisfaction
of outstanding unamortized loan fees with respect to the GECC Facility or the
restructuring or refinancing of any Line of Credit;
(7) any
non-cash charges associated with the sale or settlement of any Interest Rate
Agreement in existence with respect to the GECC Facility; and
(8) any
other
non-cash charges associated with the sale or settlement of any Interest Rate
Agreement or other hedging or derivative instruments.
“GAAP”
means
generally accepted accounting principles in the United States of America as
in
effect as of the March 22, 2004, including those set forth in the opinions
and
pronouncements of the Accounting Principles Board of the American Institute
of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity
as
approved by a significant segment of the accounting profession. Except as
otherwise specifically provided in this Indenture, all ratios and computations
contained or referred to in this Indenture shall be computed in conformity
with
GAAP applied on a consistent basis.
“GECC
Facility”
means
(i) the Loan Agreement dated as of June 23, 2003 among General
Electric Capital Corporation and certain subsidiaries of the Issuer party
thereto and (ii) the Guaranty Agreement dated as of June 23,
2003
between the Issuer and General Electric Capital Corporation, in each case as
such agreement may be amended (including any amendment and restatement thereof),
supplemented or otherwise modified from time to time.
“Guarantee”
means
any obligation, contingent or otherwise, of any Person directly or indirectly
guaranteeing any Indebtedness of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect, contingent
or
otherwise, of such Person:
(1) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such
Indebtedness of such other Person (whether arising by virtue of partnership
arrangements, or by agreements to keep-well, to purchase assets, goods,
securities or services (unless such purchase arrangements are on arm’s-length
terms and are entered into in the ordinary course of business), to take-or-pay,
or to maintain financial statement conditions or otherwise); or
(2) entered
into for purposes of assuring in any other manner the obligee of such
Indebtedness of the payment thereof or to protect such obligee against loss
in
respect thereof (in whole or in part);
provided,
however,
that the
term “Guarantee” shall not include endorsements for collection or deposit in the
ordinary course of business. The term “Guarantee” used as a verb has a
corresponding meaning.
“Holder”
means
any registered holder, from time to time, of the Notes.
“Incur”
means,
with respect to any Indebtedness, to incur, create, issue, assume, Guarantee
or
otherwise become liable for or with respect to, or become responsible for,
the
payment of, contingently or otherwise, such Indebtedness, including an
“Incurrence” of Acquired Indebtedness; provided,
however,
that
neither the accrual of interest nor the accretion of original issue discount
shall be considered an Incurrence of Indebtedness.
“Indebtedness”
means,
with respect to any Person at any date of determination (without
duplication):
(1) all
indebtedness of such Person for borrowed money;
(2) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(3) the
face
amount of letters of credit or other similar instruments (excluding obligations
with respect to letters of credit (including trade letters of credit) securing
obligations (other than obligations described in (1) or (2) above
or
(5), (6) or (7) below) entered into in the ordinary course of
business
of such Person to the extent such letters of credit are not drawn upon or,
if
drawn upon, to the extent such drawing is reimbursed no later than the third
Business Day following receipt by such Person of a demand for
reimbursement);
(4) all
unconditional obligations of such Person to pay the deferred and unpaid purchase
price of property or services, which purchase price is due more than six months
after the date of placing such property in service or taking delivery and title
thereto or the completion of such services, except Trade Payables;
(5) all
Capitalized Lease Obligations;
(6) all
Indebtedness of other Persons secured by a Lien on any asset of such Person,
whether or not such Indebtedness is assumed by such Person; provided,
however,
that the
amount of such Indebtedness shall be the lesser of (A) the fair market
value of such asset at that date of determination and (B) the amount
of
such Indebtedness;
(7) all
Indebtedness of other Persons Guaranteed by such Person to the extent such
Indebtedness is Guaranteed by such Person; and
(8) to
the
extent not otherwise included in this definition or the definition of
Consolidated Interest Expense, obligations under Currency Agreements and
Interest Rate Agreements.
The
amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations of the type described
above and, with respect to obligations under any Guarantee, the maximum
liability upon the occurrence of the contingency giving rise to the obligation;
provided,
however,
that:
(1) the
amount outstanding at any time of any Indebtedness issued with original issue
discount shall be deemed to be the face amount with respect to such Indebtedness
less the remaining unamortized portion of the original issue discount of such
Indebtedness at the date of determination in conformity with GAAP,
and
(2) Indebtedness
shall not include any liability for federal, state, local or other
taxes.
“Indenture”
means
this Indenture, as amended or supplemented from time to time in accordance
with
the terms hereof.
“Initial
Purchasers”
means
Deutsche Bank Securities Inc., UBS Securities LLC and Banc of America Securities
LLC.
“Institutional
Accredited Investor”
or
“IAI”
means
an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or
(7) under the Securities Act.
“interest”
means,
with respect to the Notes, interest and Additional Interest, if any, on the
Notes.
“Interest
Coverage Ratio”
means,
on any Transaction Date, the ratio of:
|
(x)
|
the
aggregate amount of Consolidated EBITDA for the then most recent
four
fiscal quarters prior to such Transaction Date for which reports
have been
filed with the SEC or provided to the Trustee pursuant to
Section 4.15 (“Four
Quarter Period”)
to
|
|
(y)
|
the
aggregate Consolidated Interest Expense during such Four Quarter
Period.
|
In
making
the foregoing calculation,
(1) pro forma
effect
shall be given to any Indebtedness Incurred or repaid (other than in connection
with an Asset Acquisition or Asset Disposition) during the period (“Reference
Period”)
commencing on the first day of the Four Quarter Period and ending on the
Transaction Date (other than Indebtedness Incurred or repaid under a revolving
credit or similar arrangement), in each case as if such Indebtedness had been
Incurred or repaid on the first day of such Reference Period;
(2) Consolidated
Interest Expense attributable to interest on any Indebtedness (whether existing
or being Incurred) computed on a pro forma
basis
and bearing a floating interest rate shall be computed as if the rate in effect
on the Transaction Date (taking into account any Interest Rate Agreement
applicable to such Indebtedness if such Interest Rate Agreement has a remaining
term in excess of 12 months or, if shorter, at least equal to the remaining
term of such Indebtedness) had been the applicable rate for the entire
period;
(3) pro forma
effect
shall be given to Asset Dispositions and Asset Acquisitions and Permitted
Mortgage Investments (including giving pro forma
effect
to the application of proceeds of any Asset Disposition and any Indebtedness
Incurred or repaid in connection with any such Asset Acquisitions or Asset
Dispositions or Permitted Mortgage Investments) that occur during such Reference
Period but subsequent to the end of the related Four Quarter Period as if they
had occurred and such proceeds had been applied on the first day of such
Reference Period; and
(4) pro forma
effect
shall be given to asset dispositions and asset acquisitions (including giving
pro forma
effect
to (i) the application of proceeds of any asset disposition and any
Indebtedness Incurred or repaid in connection with any such asset acquisitions
or asset dispositions and (ii) expense and cost reductions calculated
on a
basis consistent with Regulation S-X under the Exchange Act) that have
been
made by any Person that has become a Restricted Subsidiary or has been merged
with or into the Issuer or any of its Restricted Subsidiaries during such
Reference Period but subsequent to the end of the related Four Quarter Period
and that would have constituted asset dispositions or asset acquisitions during
such Reference Period but subsequent to the end of the related Four Quarter
Period had such transactions occurred when such Person was a Restricted
Subsidiary as if such asset dispositions or asset acquisitions were Asset
Dispositions or Asset Acquisitions and had occurred on the first day of such
Reference Period;
provided,
however,
that to
the extent that clause (3) or (4) of this paragraph requires
that
pro forma
effect
be given to an Asset Acquisition or Asset Disposition or asset acquisition
or
asset disposition, as the case may be, such pro forma
calculation shall be based upon the four full fiscal quarters immediately
preceding the Transaction Date of the Person, or division or line of business,
or one or more healthcare properties, of the Person that is acquired or disposed
of to the extent that such financial information is available.
“Interest
Payment Date”
means
the Stated Maturity of an installment of interest on the Notes.
“Interest
Rate Agreement”
means
any interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement, option
or future contract or other similar agreement or arrangement with respect to
interest rates.
“Investment”
in any
Person means any direct or indirect advance, loan or other extension of credit
(including by way of Guarantee or similar arrangement, but excluding advances
to
customers in the ordinary course of business that are, in conformity with GAAP,
recorded as accounts receivable on the consolidated balance sheet of the Issuer
and its Restricted Subsidiaries) or capital contribution to (by means of any
transfer of cash or other property (tangible or intangible) to others or any
payment for property or services solely for the account or use of others, or
otherwise), or any purchase or acquisition of Capital Stock, bonds, notes,
debentures or other similar instruments issued by, such Person and shall
include:
(1) the
designation of a Restricted Subsidiary as an Unrestricted Subsidiary;
and
(2) the
fair
market value of the Capital Stock (or any other Investment), held by the Issuer
or any of its Restricted Subsidiaries of (or in) any Person that has ceased
to
be a Restricted Subsidiary;
provided,
however,
that the
fair market value of the Investment remaining in any Person that has ceased
to
be a Restricted Subsidiary shall be deemed not to exceed the aggregate amount
of
Investments previously made in such Person valued at the time such Investments
were made, less the net reduction of such Investments. For purposes of the
definition of “Unrestricted Subsidiary” and Section 4.09:
(i) “Investment”
shall include the fair market value of the assets (net of liabilities (other
than liabilities to the Issuer or any of its Restricted Subsidiaries)) of any
Restricted Subsidiary at the time such Restricted Subsidiary is designated
an
Unrestricted Subsidiary;
(ii) the
fair
market value of the assets (net of liabilities (other than liabilities to the
Issuer or any of its Restricted Subsidiaries)) of any Unrestricted Subsidiary
at
the time that such Unrestricted Subsidiary is designated a Restricted Subsidiary
shall be considered a reduction in outstanding Investments; and
(iii) any
property transferred to or from an Unrestricted Subsidiary shall be valued
at
its fair market value at the time of such transfer.
“Investment
Grade Status”
means,
with respect to the Issuer, when the Notes have both (1) a rating of
“Baa3”
or higher from Moody’s and (2) a rating of “BBB-” or higher from S&P
(or, if either such agency ceases to rate the Notes for reasons outside the
control of the Issuer, the equivalent investment grade credit rating from any
other “nationally recognized statistical rating organization” within the meaning
of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Issuer
as a replacement agency), in each case published by the applicable agency with
no negative outlook.
“Lien”
means
any mortgage, pledge, security interest, encumbrance, lien or charge of any
kind
(including any conditional sale or other title retention agreement or lease
in
the nature thereof or any agreement to give any security interest).
“Line
of Credit”
means
the Credit Agreement dated as of March 22, 2004, by and among the Issuer, the
lenders party thereto in their capacities as lenders thereunder and Bank of
America, N.A., as administrative agent, together with the related documents
thereto (including any guarantee agreements and security documents), in each
case as such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including one
or
more credit agreements, loan agreements, indentures or similar agreements
extending the maturity of, refinancing, replacing or otherwise restructuring
(including increasing the amount of available borrowings thereunder or adding
Restricted Subsidiaries of the Issuer as additional borrowers or guarantors
thereunder) all or any portion of the Indebtedness under such agreement or
agreements or any successor or replacement agreement or agreements and whether
by the same or any other agent, lender or group of lenders.
“Moody’s”
means
Moody’s Investors Service, Inc. and its successors.
“Net
Cash Proceeds”
means:
(1) with
respect to any Asset Sale, the proceeds of such Asset Sale in the form of cash
or Temporary Cash Investments, including payments in respect of deferred payment
obligations (to the extent corresponding to the principal, but not interest,
component thereof) when received in the form of cash or Temporary Cash
Investments (except to the extent such obligations are financed or sold with
recourse to the Issuer or any of its Restricted Subsidiaries) and proceeds
from
the conversion of other property received when converted to cash or cash
equivalents, net of:
| (i) |
brokerage
commissions and other fees and expenses (including fees and expenses
of
counsel and investment bankers) related to such Asset
Sale,
|
(ii) provisions
for all taxes actually paid or payable as a result of such Asset Sale by the
Issuer and its Restricted Subsidiaries, taken as a whole,
| (iii) |
payments
made to repay Indebtedness or any other obligation outstanding at
the time
of such Asset Sale that either (A) is secured by a Lien on
the
property or assets sold or (B) is required to be paid as a
result of
such sale, and
|
| (iv) |
amounts
reserved by the Issuer and its Restricted Subsidiaries against any
liabilities associated with such Asset Sale, including pension and
other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated
with such Asset Sale, all as determined on a consolidated basis in
conformity with GAAP; and
|
(2) with
respect to any issuance or sale of Capital Stock, the proceeds of such issuance
or sale in the form of cash or Temporary Cash Investments, including payments
in
respect of deferred payment obligations (to the extent corresponding to the
principal, but not interest, component thereof) when received in the form of
cash or Temporary Cash Investments (except to the extent such obligations are
financed or sold with recourse to the Issuer or any of its Restricted
Subsidiaries) and proceeds from the conversion of other property received when
converted to cash or Temporary Cash Investments, net of attorney’s fees,
accountants’ fees, underwriters’ or placement agents’ fees, discounts or
commissions and brokerage, consultant and other fees incurred in connection
with
such issuance or sale and net of tax paid or payable as a result
thereof.
“Non-U.S.
Person”
has the
meaning assigned to such term in Regulation S.
“Notes”
means,
collectively, the Issuer’s 7% Senior Notes due 2016 issued in accordance with
Section 2.02 (whether issued on the Closing Date, issued as Additional
Notes, issued as Exchange Notes or Private Exchange Notes, or otherwise issued
after the Closing Date) treated as a single class of securities under this
Indenture, as amended or supplemented from time to time in accordance with
the
terms of this Indenture.
“Offer
to Purchase”
means
an offer to purchase Notes by the Issuer from the Holders commenced by mailing
a
notice to the Trustee and each Holder stating:
(1) the
covenant pursuant to which the offer is being made and that all Notes validly
tendered will be accepted for payment on a pro rata
basis;
(2) the
purchase price and the date of purchase (which shall be a Business Day no
earlier than 30 days nor later than 60 days from the date such
notice
is mailed) (the “Payment
Date”);
(3) that
any
Note not tendered will continue to accrue interest pursuant to its
terms;
(4) that,
unless the Issuer defaults in the payment of the purchase price, any Note
accepted for payment pursuant to the Offer to Purchase shall cease to accrue
interest on and after the Payment Date;
(5) that
Holders electing to have a Note purchased pursuant to the Offer to Purchase
will
be required to surrender the Note, together with the form entitled “Option of
the Holder to Elect Purchase” on the reverse side of the Note completed, to the
Paying Agent at the address specified in the notice prior to the close of
business on the Business Day immediately preceding the Payment
Date;
(6) that
Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the third Business Day
immediately preceding the Payment Date, a telegram, facsimile transmission
or
letter setting forth the name of such Holder, the principal amount of Notes
delivered for purchase and a statement that such Holder is withdrawing his
election to have such Notes purchased; and
(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,
however,
that
each Note purchased and each new Note issued shall be in a principal amount
of
$1,000 or integral multiples thereof.
On
the
Payment Date, the Issuer shall
| (i) |
accept
for payment on a pro rata
basis Notes or portions thereof tendered pursuant to an Offer to
Purchase;
and
|
(ii) deposit
with the Paying Agent money sufficient to pay the purchase price of all Notes
or
portions thereof so accepted; and
(iii) shall
promptly thereafter deliver, or cause to be delivered, to the Trustee all Notes
or portions thereof so accepted together with an Officers’ Certificate
specifying the Notes or portions thereof accepted for payment by the
Issuer.
The
Paying Agent shall promptly mail to the Holders of Notes so accepted payment
in
an amount equal to the purchase price, and the Trustee shall promptly
authenticate and mail to such Holders a new Note equal in principal amount
to
any unpurchased portion of any Note surrendered; provided,
however,
that
each Note purchased and each new Note issued shall be in a principal amount
of
$1,000 or integral multiples thereof. The Issuer will publicly announce the
results of an Offer to Purchase as soon as practicable after the Payment Date.
The Issuer will comply with Rule 14e-1 under the Exchange Act and any
other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable, in the event that the Issuer is required to
repurchase Notes pursuant to an Offer to Purchase.
“Officer”
means
any of the following of the Issuer or a Subsidiary Guarantor, as applicable:
the
Chairman of the Board of Directors, the Chief Executive Officer, the Chief
Financial Officer, the President, any Vice President, the Treasurer or the
Secretary.
“Officers’
Certificate”
means a
certificate signed by two Officers.
“Opinion
of Counsel”
means a
written opinion from legal counsel who is reasonably acceptable to the Trustee.
The counsel may be an employee of, or counsel to, the Issuer, a Subsidiary
Guarantor or the Trustee.
“Pari
Passu Indebtedness”
means
any Indebtedness of the Issuer or any Subsidiary Guarantor that ranks
pari passu
in right
of payment with the Notes or the Guarantee thereof by such Subsidiary Guarantor,
as applicable.
“Permitted
Investment”
means:
(1) an
investment in the Issuer or any of its Restricted Subsidiaries or a Person
that
will, upon the making of such Investment, become a Restricted Subsidiary or
be
merged or consolidated with or into or transfer or convey all or substantially
all its assets to, the Issuer or any of its Restricted Subsidiaries;
provided,
however,
that
such Person’s primary business is related, ancillary, incidental or
complementary to the businesses of the Issuer or any of its Restricted
Subsidiaries on the date of such Investment;
(2) investments
in cash and Temporary Cash Investments;
(3) Investments
made by the Issuer or its Restricted Subsidiaries as a result of consideration
received in connection with an Asset Sale made in compliance with
Section 4.11
(4) Investments
represented by Guarantees that are otherwise permitted under this
Indenture;
(5) payroll,
travel and similar advances to cover matters that are expected at the time
of
such advances ultimately to be treated as expenses in accordance with
GAAP;
(6) stock,
obligations or securities received in satisfaction of judgments;
(7) Permitted
Mortgage Investments; and
(8) additional
Investments not to exceed $25 million at any time outstanding.
“Permitted
Mortgage Investment”
means
any Investment in secured notes, mortgage, deeds of trust, collateralized
mortgage obligations, commercial mortgage-backed securities, other secured
debt
securities, secured debt derivative or other secured debt instruments, so long
as such investment relates directly or indirectly to real property that
constitutes or is used as a skilled nursing home center, hospital, assisted
living facility or other property customarily constituting an asset of a real
estate investment trust specializing in healthcare or senior housing
property.
“Person”
means
any individual, corporation, partnership, limited liability company, joint
venture, incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
“Preferred
Stock”
means,
with respect to any Person, any and all shares, interests, participations or
other equivalents (however designated, whether voting or non-voting) that have
a
preference on liquidation or with respect to distributions over any other class
of Capital Stock, including preferred partnership interests, whether general
or
limited, or such Person’s preferred or preference stock, whether outstanding on
the Closing Date or issued thereafter, including, without limitation, all series
and classes of such preferred or preference stock.
“principal”
means,
with respect to the Notes, the principal of and premium, if any, on the
Notes.
“Private
Exchange”
has the
meaning given to it in the Registration Rights Agreement.
“Private
Exchange Notes”
has the
meaning given to it in the Registration Rights Agreement.
“Private
Placement Legend”
means
the legends initially set forth on the Notes in the form set forth in
Exhibit B.
“Qualified
Institutional Buyer”
or
“QIB”
shall
have the meaning specified in Rule 144A under the Securities
Act.
“Record
Date”
means
the applicable Record Date specified in the Notes; provided,
however,
that if
any such date is not a Business Day, the Record Date shall be the first day
immediately succeeding such specified day that is a Business Day.
“redeem”
means
to redeem, repurchase, purchase, defease, retire, discharge or otherwise acquire
or retire for value; and “redemption”
shall
have a correlative meaning; provided,
however,
that
this definition shall not apply for purposes of Section 5 or Section 6
of the Notes or Article Three.
“Redemption
Date,”
when
used with respect to any Note to be redeemed, means the date fixed for such
redemption pursuant to this Indenture and the Notes.
“Redemption
Price,”
when
used with respect to any Note to be redeemed, means the price fixed for such
redemption, payable in immediately available funds, pursuant to this Indenture
and the Notes.
“Registration
Rights Agreement”
means
the Registration Rights Agreement dated as of December 30, 2005 among the
Issuer, the Subsidiary Guarantors and the Initial Purchasers, as amended,
supplemented or modified from time to time, and any similar agreement entered
into in connection with the issuance of any Additional Notes.
“Regulation S”
means
Regulation S under the Securities Act.
“Responsible
Officer”
means,
when used with respect to the Trustee, any officer in the Corporate Trust Office
of the Trustee to whom any corporate trust matter is referred because of such
officer’s knowledge of and familiarity with the particular subject and shall
also mean any officer who shall have direct responsibility for the
administration of this Indenture.
“Restricted
Security”
means a
Note that constitutes a “Restricted Security” within the meaning of
Rule 144(a)(3) under the Securities Act; provided,
however,
that the
Trustee shall be entitled to request and conclusively rely on an Opinion of
Counsel with respect to whether any Note constitutes a Restricted
Security.
“Restricted
Subsidiary”
means
any Subsidiary of the Issuer other than an Unrestricted Subsidiary.
“Rule 144A”
means
Rule 144A under the Securities Act.
“SEC”
means
the U.S. Securities and Exchange Commission.
“Secured
Indebtedness”
means
any Indebtedness secured by a Lien upon the property of the Issuer or any of
its
Restricted Subsidiaries.
“Securities
Act”
means
the U.S. Securities Act of 1933, as amended, or any successor statute or
statutes thereto.
“Significant
Subsidiary,”
with
respect to any Person, means any restricted subsidiary of such Person that
satisfies the criteria for a “significant subsidiary” set forth in
Rule 1.02(w) of Regulation S-X under the Exchange Act.
“S&P”
means
Standard & Poor’s Ratings Services and its successors.
“Stated
Maturity”
means:
(1) with
respect to any debt security, the date specified in such debt security as the
fixed date on which the final installment of principal of such debt security
is
due and payable; and
(2) with
respect to any scheduled installment of principal of or interest on any debt
security, the date specified in such debt security as the fixed date on which
such installment is due and payable.
“Subsidiary”
means,
with respect to any Person, any corporation, association or other business
entity of which more than 50% of the voting power of the outstanding Voting
Stock is owned, directly or indirectly, by such Person and one or more other
Subsidiaries of such Person and the accounts of which would be consolidated
with
those of such Person in its consolidated financial statements in accordance
with
GAAP, if such statements were prepared as of such date.
“Subsidiary
Debt”
means
all unsecured Indebtedness of which a Restricted Subsidiary is the primary
obligor.
“Subsidiary
Guarantee”
means a
Guarantee by each Subsidiary Guarantor for payment of the Notes by such
Subsidiary Guarantor. The Subsidiary Guarantee will be an unsecured senior
obligation of each Subsidiary Guarantor and will be unconditional regardless
of
the enforceability of the Notes and this Indenture. Notwithstanding the
foregoing, each Subsidiary Guarantee by a Subsidiary Guarantor shall provide
by
its terms that it shall be automatically and unconditionally released and
discharged upon any sale, exchange or transfer, to any Person not an Affiliate
of the Issuer, of all of the Capital Stock owned by the Issuer and its
Restricted Subsidiaries in, or all or substantially all the assets of, such
Restricted Subsidiary (which sale, exchange or transfer is not then prohibited
by this Indenture).
“Subsidiary
Guarantors”
means
(i) each Restricted Subsidiary of the Issuer on the Closing Date and
(ii) each other Person that is required to become a Subsidiary Guarantor
by
the terms of this Indenture after the Closing Date, in each case, until such
Person is released from its Subsidiary Guarantee.
“Temporary
Cash Investment”
means
any of the following:
(1) direct
obligations of the United States of America or any agency thereof or obligations
fully and unconditionally guaranteed by the United States of America or any
agency thereof;
(2) time
deposits accounts, certificates of deposit and money market deposits maturing
within 180 days of the date of acquisition thereof issued by a bank
or
trust company which is organized under the laws of the United States of America,
any state thereof, and which bank or trust company has capital, surplus and
undivided profits aggregating in excess of $250 million and has outstanding
debt which is rated “A” (or such similar equivalent rating) or higher by at
least one nationally recognized statistical rating organization (as defined
in
Rule 436 under the Securities Act) or any money-market fund sponsored
by a
registered broker dealer or mutual fund distributor;
(3) repurchase
obligations with a term of not more than 30 days for underlying securities
of the types described in clause (1) above entered into with a bank
meeting
the qualifications described in clause (2) above;
(4) commercial
paper, maturing not more than 90 days after the date of acquisition,
issued
by a corporation (other than an Affiliate of the Issuer) organized and in
existence under the laws of the United States of America, any state of the
United States of America with a rating at the time as of which any investment
therein is made of “P-1” (or higher) according to Moody’s or “A-1” (or higher)
according to S&P; and
(5) securities
with maturities of six months or less from the date of acquisition issued or
fully and unconditionally guaranteed by any state, commonwealth or territory
of
the United States of America, or by any political subdivision or taxing
authority thereof, and rated at least “A” by S&P or Moody’s.
“Total
Assets”
means
the sum (without duplication) of:
(1) Undepreciated
Real Estate Assets; and
(2) all
other
assets (excluding intangibles and accounts receivable) of the Issuer and its
Restricted Subsidiaries on a consolidated basis determined in conformity with
GAAP.
“Total
Unencumbered Assets”
as of
any date means the sum of:
(1) those
Undepreciated Real Estate Assets not securing any portion of Secured
Indebtedness; and
(2) all
other
assets (but excluding intangibles and accounts receivable) of the Issuer and
its
Restricted Subsidiaries not securing any portion of Secured Indebtedness
determined on a consolidated basis in conformity with GAAP.
“Trade
Payables”
means,
with respect to any Person, any accounts payable or any other indebtedness
or
monetary obligation to trade creditors created, assumed or Guaranteed by such
Person or any of its Subsidiaries arising in the ordinary course of business
in
connection with the acquisition of goods or services.
“Transaction
Date”
means,
with the respect to the Incurrence of any Indebtedness by the Issuer or any
of
its Restricted Subsidiaries, the date such Indebtedness is to be Incurred and,
with respect to any Restricted Payment, the date such Restricted Payment is
to
be made.
“Trust
Indenture Act”
means
the Trust Indenture Act of 1939, as amended.
“Trustee”
means
the party named as such in this Indenture until a successor replaces it in
accordance with the provisions of this Indenture and thereafter means such
successor.
“Undepreciated
Real Estate Assets”
means,
as of any date, the cost (being the original cost to the Issuer or any of its
Restricted Subsidiaries plus capital improvements) of real estate assets of
the
Issuer and its Restricted Subsidiaries on such date, before depreciation and
amortization of such real estate assets, determined on a consolidated basis
in
conformity with GAAP.
“Unrestricted
Subsidiary”
means
(1) any
Subsidiary of the Issuer that at the time of determination shall be designated
an Unrestricted Subsidiary by the Board of Directors of the Issuer in the manner
provided below; and
(2) any
Subsidiary of an Unrestricted Subsidiary.
Except
during a Suspension Period, the Board of Directors of the Issuer may designate
any Subsidiary (including any newly acquired or newly formed Subsidiary of
the
Issuer) to be an Unrestricted Subsidiary unless such Subsidiary owns any Capital
Stock of, or owns or holds any Lien on any property of, the Issuer or any of
its
Restricted Subsidiaries; provided,
however,
that:
(i) any
Guarantee by the Issuer or any of its Restricted Subsidiaries of any
Indebtedness of the Subsidiary being so designated shall be deemed an
“Incurrence” of such Indebtedness and an “Investment” by the Issuer or such
Restricted Subsidiary (or all, if applicable) at the time of such
designation;
(ii) either
(i) the Subsidiary to be so designated has total assets of $1,000 or
less
or (ii) if such Subsidiary has assets greater than $1,000, such designation
would be permitted under Section 4.09; and
(iii) if
applicable, the Incurrence of Indebtedness and the Investment referred to in
clause (i) of this proviso would be permitted under Section 4.08
and
Section 4.09.
The
Board
of Directors of the Issuer may designate any Unrestricted Subsidiary to be
a
Restricted Subsidiary; provided,
however,
that:
|
(x)
|
no
Default or Event of Default shall have occurred and be continuing
at the
time of or after giving effect to such designation;
and
|
|
(y)
|
all
Liens and Indebtedness of such Unrestricted Subsidiary outstanding
immediately after such designation would, if Incurred at such time,
have
been permitted to be Incurred (and shall be deemed to have been Incurred)
for all purposes of this Indenture.
|
Any
such
designation by the Board of Directors of the Issuer shall be evidenced to the
Trustee by promptly filing with the Trustee a copy of the Board Resolution
giving effect to such designation and an Officers’ Certificate certifying that
such designation complied with the foregoing provisions.
“Unsecured
Indebtedness”
means
any Indebtedness of the Issuer or any of its Restricted Subsidiaries that is
not
Secured Indebtedness.
“U.S.
Government Obligations”
means
direct obligations of, obligations guaranteed by, or participations in pools
consisting solely of obligations of or obligations guaranteed by, the United
States of America for the payment of which obligations or guarantee the full
faith and credit of the United States of America is pledged and that are not
callable or redeemable at the option of the issuer thereof.
“U.S.
Legal Tender”
means
such coin or currency of the United States of America that at the time of
payment shall be legal tender for the payment of public and private
debts.
“Voting
Stock”
means
with respect to any Person, Capital Stock of any class or kind ordinarily having
the power to vote for the election of directors, managers or other voting
members of the governing body of such Person.
“Wholly
Owned”
means,
with respect to any Subsidiary of any Person, the ownership of all of the
outstanding Capital Stock of such Subsidiary (other than any director’s
qualifying shares or Investments by individuals mandated by applicable law)
by
such Person or one or more Wholly Owned Subsidiaries of such
Person.
SECTION
1.02. Other
Definitions.
|
Term
|
Defined
in Section
|
|
“144A
Global Note”
|
2.01
|
|
“Additional
Notes”
|
2.02
|
|
“Authentication
Order”
|
2.02
|
|
“Covenant
Defeasance”
|
8.02
|
|
“Event
of Default”
|
6.01
|
|
“Excess
Proceeds”
|
4.11
|
|
“Four
Quarter Period”
|
1.01
|
|
“Global
Note”
|
2.01
|
|
“Guaranteed
Indebtedness”
|
4.14
|
|
“IAI
Global Note”
|
2.01
|
|
“Initial
Global Notes”
|
2.01
|
|
“Initial
Notes”
|
2.02
|
|
“Issuer”
|
Preamble
|
|
“Legal
Defeasance”
|
8.02
|
|
“Participants”
|
2.15
|
|
“Paying
Agent”
|
2.03
|
|
“Payment
Date”
|
1.01
|
|
“Physical
Notes”
|
2.01
|
|
“Reference
Period”
|
1.01
|
|
“Registrar”
|
2.03
|
|
“Regulation
S Global Note
|
2.01
|
|
“Restricted
Payments”
|
4.09
|
|
“Reversion
Date”
|
4.16
|
|
“Suspension
Period”
|
4.16
|
| SECTION 1.03. |
Incorporation
by Reference of Trust Indenture Act.
|
Whenever
this Indenture refers to a provision of the Trust Indenture Act, such provision
is incorporated by reference in, and made a part of, this Indenture. The
following Trust Indenture Act terms used in this Indenture have the following
meanings:
“indenture
securities”
means
the Notes.
“indenture
security holder”
means a
Holder.
“indenture
to be qualified”
means
this Indenture.
“indenture
trustee”
or
“institutional
trustee”
means
the Trustee.
“obligor”
on the
indenture securities means the Issuer, any Subsidiary Guarantor or any other
obligor on the Notes.
All
other
Trust Indenture Act terms used in this Indenture that are defined by the Trust
Indenture Act, defined by Trust Indenture Act reference to another statute
or
defined by SEC rule and not otherwise defined herein have the meanings
assigned to them therein.
| SECTION 1.04. |
Rules
of Construction.
|
Unless
the context otherwise requires:
(1) a
term
has the meaning assigned to it;
(2) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(3) “or”
is
not exclusive;
(4) words
in
the singular include the plural, and words in the plural include the
singular;
(5) provisions
apply to successive events and transactions;
(6) “herein,”“hereof”
and other words of similar import refer to this Indenture as a whole and not
to
any particular Article, Section or other subdivision; and
(7) the
words
“including,”“includes” and similar words shall be deemed to be followed by
“without limitation.”
ARTICLE
TWO
THE
NOTES
| SECTION 2.01. |
Form
and Dating.
|
The
Notes
and the Trustee’s certificate of authentication shall be substantially in the
form of Exhibit A
hereto.
The Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. The Issuer shall approve the form of the Notes
and
any notation, legend or endorsement on them. Each Note shall be dated the date
of its issuance and show the date of its authentication. Each Note shall have
an
executed Subsidiary Guarantee from each of the Subsidiary Guarantors existing
on
the Closing Date endorsed thereon substantially in the form of Exhibit E.
The
terms
and provisions contained in the Notes and the Subsidiary Guarantees shall
constitute, and are hereby expressly made, a part of this Indenture and, to
the
extent applicable, the Issuer, the Subsidiary Guarantors and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
Notes
offered and sold in reliance on Rule 144A shall be issued initially
in the
form of a single permanent global Note in registered form, substantially in
the
form set forth in Exhibit A
(the
“144A
Global Note”),
deposited with the Trustee, as custodian for the Depository, duly executed
by
the Issuer (and having an executed Subsidiary Guarantee from each of the
Subsidiary Guarantors endorsed thereon) and authenticated by the Trustee as
hereinafter provided and shall bear the legends set forth in Exhibit B.
Notes
offered and sold in offshore transactions in reliance on Regulation S
shall
be issued initially in the form of a single permanent global Note in registered
form, substantially in the form of Exhibit A
(the
“Regulation S
Global Note”),
deposited with the Trustee, as custodian for the Depository, duly executed
by
the Issuer (and having an executed Subsidiary Guarantee from each of the
Subsidiary Guarantors endorsed thereon) and authenticated by the Trustee as
hereinafter provided and shall bear the legends set forth in Exhibit B.
The
initial offer and resale of the Notes shall not be to an Institutional
Accredited Investor. The Notes resold to Institutional Accredited Investors
in
connection with the first transfer made pursuant to Section 2.16(a)
shall
be issued initially in the form of a single permanent Global Note in registered
form, substantially in the form set forth in Exhibit A
(the
“IAI
Global Note,”
and,
together with the 144A Global Note and the Regulation S Global Note, the
“Initial
Global Notes”),
deposited with the Trustee, as custodian for the Depository, duly executed
by
the Issuer (and having an executed Subsidiary Guarantee from each of the
Subsidiary Guarantors endorsed thereon) and authenticated by the Trustee as
hereinafter provided and shall bear the legend set forth in Exhibit B.
Notes
issued after the Closing Date shall be issued initially in the form of one
or
more global Notes in registered form, substantially in the form set forth in
Exhibit A,
deposited with the Trustee, as custodian for the Depository, duly executed
by
the Issuer (and having an executed Subsidiary Guarantee from each of the
Subsidiary Guarantors endorsed thereon) and authenticated by the Trustee as
hereinafter provided and shall bear any legends required by applicable law
(together with the Initial Global Notes, the “Global
Notes”)
or as
Physical Notes.
The
aggregate principal amount of the Global Notes may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depository, as hereinafter provided. Notes issued in exchange
for interests in a Global Note pursuant to Section 2.16 may be issued
in
the form of permanent certificated Notes in registered form in substantially
the
form set forth in Exhibit A
and
bearing the applicable legends, if any, (the “Physical
Notes”).
| SECTION 2.02. |
Execution,
Authentication and Denomination;
Additional
Notes; Exchange Notes
|
One
Officer of the Issuer (who shall have been duly authorized by all requisite
corporate actions) shall sign the Notes for such Issuer by manual or facsimile
signature. One Officer of a Subsidiary Guarantor (who shall have been duly
authorized by all requisite corporate actions) shall sign the Subsidiary
Guarantee for such Subsidiary Guarantor by manual or facsimile
signature.
If
an
Officer whose signature is on a Note or Subsidiary Guarantee, as the case may
be, was an Officer at the time of such execution but no longer holds that office
at the time the Trustee authenticates the Note, the Note shall nevertheless
be
valid.
A
Note
(and the Subsidiary Guarantees in respect thereof) shall not be valid until
an
authorized signatory of the Trustee manually signs the certificate of
authentication on the Note. The signature shall be conclusive evidence that
the
Note has been authenticated under this Indenture.
The
Trustee shall authenticate (i) on the Closing Date, Notes for original
issue in the aggregate principal amount not to exceed $175,000,000 (the
“Initial
Notes”),
(ii) additional Notes (the “Additional
Notes”)
in an
unlimited amount (so long as not otherwise prohibited by the terms of this
Indenture, including Section 4.08) and (iii) Exchange Notes or
Private
Exchange Notes (x) in exchange for a like principal amount of Initial
Notes
or (y) in exchange for a like principal amount of Additional Notes in
each
case upon a written order of the Issuer in the form of a certificate of an
Officer of the Issuer (an “Authentication
Order”).
Each
such Authentication Order shall specify the amount of Notes to be authenticated
and the date on which the Notes are to be authenticated, whether the Notes
are
to be Initial Notes, Exchange Notes, Private Exchange Notes or Additional Notes
and whether the Notes are to be issued as certificated Notes or Global Notes
or
such other information as the Trustee may reasonably request. In addition,
with
respect to authentication pursuant to clause (ii) or (iii) of the first sentence
of this paragraph, the first such Authentication Order from the Issuer shall
be
accompanied by an Opinion of Counsel of the Issuer in a form reasonably
satisfactory to the Trustee.
All
Notes
issued under this Indenture shall be treated as a single class for all purposes
under this Indenture. The Additional Notes and the Private Exchange Notes shall
bear any legend required by applicable law.
The
Trustee may appoint an authenticating agent reasonably acceptable to the Issuer
to authenticate Notes. Unless otherwise provided in the appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so.
Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as
an
Agent to deal with the Issuer and Affiliates of the Issuer. The Trustee shall
have the right to decline to authenticate and deliver any Notes under this
Indenture if the Trustee, being advised by counsel, determines that such action
may not lawfully be taken or if the Trustee in good faith shall determine that
such action would expose the Trustee to personal liability.
The
Notes
shall be issuable only in registered form without coupons in denominations
of
$1,000 and integral multiples thereof.
| SECTION 2.03. |
Registrar
and Paying Agent.
|
The
Issuer shall maintain or cause to be maintained an office or agency in the
Borough of Manhattan, The City of New York, where (a) Notes may be
presented or surrendered for registration of transfer or for exchange
(“Registrar”),
(b) Notes may, subject to Section 2 of the Notes, be presented
or
surrendered for payment (“Paying
Agent”)
and
(c) notices and demands to or upon the Issuer in respect of the Notes
and
this Indenture may be served. The Issuer may also from time to time designate
one or more other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind
such
designations; provided,
however,
that no
such designation or rescission shall in any manner relieve the Issuer of its
obligation to maintain or cause to be maintained an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. The Issuer may
act as Registrar or Paying Agent, except that for the purposes of Articles
Three
and Eight and Sections 4.07 and 4.11, neither the Issuer nor any Affiliate
of the Issuer shall act as Paying Agent. The Registrar shall keep a register
of
the Notes and of their transfer and exchange. The Issuer, upon notice to the
Trustee, may have one or more co-registrars and one or more additional paying
agents reasonably acceptable to the Trustee. The term “Registrar” includes any
co-registrar and the term “Paying Agent” includes any additional paying agent.
The Issuer initially appoints the Trustee as Registrar and Paying Agent until
such time as the Trustee has resigned or a successor has been
appointed.
The
Issuer shall enter into an appropriate agency agreement with any Agent not
a
party to this Indenture, which agreement shall implement the provisions of
this
Indenture that relate to such Agent. The Issuer shall notify the Trustee, in
advance, of the name and address of any such Agent. If the Issuer fails to
maintain a Registrar or Paying Agent, the Trustee shall act as
such.
| SECTION 2.04. |
Paying
Agent To Hold Assets in Trust.
|
The
Issuer shall require each Paying Agent other than the Trustee or the Issuer
or
any Subsidiary to agree in writing that each Paying Agent shall hold in trust
for the benefit of Holders or the Trustee all assets held by the Paying Agent
for the payment of principal of, or interest on, the Notes (whether such assets
have been distributed to it by the Issuer or any other obligor on the Notes),
and shall notify the Trustee of any Default by the Issuer (or any other obligor
on the Notes) in making any such payment. The Issuer at any time may require
a
Paying Agent to distribute all assets held by it to the Trustee and account
for
any assets disbursed and the Trustee may at any time during the continuance
of
any payment Default, upon written request to a Paying Agent, require such Paying
Agent to distribute all assets held by it to the Trustee and to account for
any
assets distributed. Upon distribution to the Trustee of all assets that shall
have been delivered by the Issuer to the Paying Agent, the Paying Agent shall
have no further liability for such assets.
| SECTION 2.05. |
Holder
Lists.
|
The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of Holders. If
the
Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least
two (2) Business Days prior to each Interest Payment Date and at such other
times as the Trustee may request in writing a list, in such form and as of
such
date as the Trustee may reasonably require, of the names and addresses of
Holders, which list may be conclusively relied upon by the Trustee.
| SECTION 2.06. |
Transfer
and Exchange.
|
Subject
to Sections 2.15 and 2.16, when Notes are presented to the Registrar
with a
request to register the transfer of such Notes or to exchange such Notes for
an
equal principal amount of Notes of other authorized denominations, the Registrar
shall register the transfer or make the exchange as requested if its
requirements for such transaction are met; provided,
however,
that the
Notes surrendered for transfer or exchange shall be duly endorsed or accompanied
by a written instrument of transfer in form satisfactory to the Issuer and
the
Registrar, duly executed by the Holder thereof or his or her attorney duly
authorized in writing. To permit registrations of transfers and exchanges,
the
Issuer shall execute and the Trustee shall authenticate Notes at the Registrar’s
request. No service charge shall be made for any registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection
therewith.
Without
the prior written consent of the Issuer, the Registrar shall not be required
to
register the transfer of or exchange of any Note (i) during a period
beginning at the opening of business 15 days before the mailing of a notice
of
redemption of Notes and ending at the close of business on the day of such
mailing, (ii) selected for redemption in whole or in part pursuant to
Article Three, except the unredeemed portion of any Note being redeemed in
part,
and (iii) beginning at the opening of business on any Record Date and
ending on the close of business on the related Interest Payment
Date.
Any
Holder of a beneficial interest in a Global Note shall, by acceptance of such
beneficial interest, agree that transfers of beneficial interests in such Global
Notes may be effected only through a book-entry system maintained by the Holder
of such Global Note (or its agent) in accordance with the applicable legends
thereon, and that ownership of a beneficial interest in the Note shall be
required to be reflected in a book-entry system.
| SECTION 2.07. |
Replacement
Notes.
|
If
a
mutilated Note is surrendered to the Trustee or if the Holder of a Note claims
that the Note has been lost, destroyed or wrongfully taken, the Issuer shall
issue and the Trustee shall authenticate a replacement Note if the Trustee’s
requirements are met. Such Holder must provide an indemnity bond or other
indemnity, sufficient in the judgment of both the Issuer and the Trustee, to
protect the Issuer, the Trustee or any Agent from any loss which any of them
may
suffer if a Note is replaced. The Issuer may charge such Holder for its
reasonable out-of-pocket expenses in replacing a Note pursuant to this
Section 2.07, including reasonable fees and expenses of counsel and
of the
Trustee.
Every
replacement Note is an additional obligation of the Issuer and every replacement
Subsidiary Guarantee shall constitute an additional obligation of the Subsidiary
Guarantor thereof.
The
provisions of this Section 2.07 are exclusive and shall preclude (to
the
extent lawful) all other rights and remedies with respect to the replacement
or
payment of lost, destroyed or wrongfully taken Notes.
| SECTION 2.08. |
Outstanding
Notes.
|
Notes
outstanding at any time are all the Notes that have been authenticated by the
Trustee except those cancelled by it, those delivered to it for cancellation
and
those described in this Section 2.08 as not outstanding. A Note does
not
cease to be outstanding because the Issuer, the Subsidiary Guarantors or any
of
their respective Affiliates hold the Note (subject to the provisions of
Section 2.09).
If
a Note
is replaced pursuant to Section 2.07 (other than a mutilated Note
surrendered for replacement), it ceases to be outstanding unless a Responsible
Officer of the Trustee receives proof satisfactory to it that the replaced
Note
is held by a bona
fide
purchaser. A mutilated Note ceases to be outstanding upon surrender of such
Note
and replacement thereof pursuant to Section 2.07.
If
the
principal amount of any Note is considered paid under Section 4.01,
it
ceases to be outstanding and interest ceases to accrue. If on a Redemption
Date
or the Stated Maturity the Trustee or Paying Agent (other than the Issuer or
an
Affiliate thereof) holds U.S. Legal Tender or U.S. Government Obligations
sufficient to pay all of the principal and interest due on the Notes payable
on
that date, then on and after that date such Notes cease to be outstanding and
interest on them ceases to accrue.
| SECTION 2.09. |
Treasury
Notes.
|
In
determining whether the Holders of the required principal amount of Notes have
concurred in any direction, waiver or consent, Notes owned by the Issuer or
any
of its Affiliates shall be disregarded, except that, for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that a Responsible Officer of the
Trustee actually knows are so owned shall be disregarded.
| SECTION 2.10. |
Temporary
Notes.
|
Until
definitive Notes are ready for delivery, the Issuer may prepare and the Trustee
shall authenticate temporary Notes. Temporary Notes shall be substantially
in
the form of definitive Notes but may have variations that the Issuer considers
appropriate for temporary Notes. Without unreasonable delay, the Issuer shall
prepare and the Trustee shall authenticate definitive Notes in exchange for
temporary Notes. Until such exchange, temporary Notes shall be entitled to
the
same rights, benefits and privileges as definitive Notes. Notwithstanding the
foregoing, so long as the Notes are represented by a Global Note, such Global
Note may be in typewritten form.
| SECTION 2.11. |
Cancellation.
|
The
Issuer 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, or at the
direction of the Trustee, the Registrar or the Paying Agent (other than the
Issuer or a Subsidiary), and no one else, shall cancel and, at the written
direction of the Issuer, shall dispose of all Notes surrendered for transfer,
exchange, payment or cancellation in accordance with its customary procedures.
Subject to Section 2.07, the Issuer may not issue new Notes to replace
Notes that it has paid or delivered to the Trustee for cancellation. If the
Issuer or any Subsidiary Guarantor shall acquire any of the Notes, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Notes unless and until the same are surrendered
to the Trustee for cancellation pursuant to this Section 2.11.
| SECTION 2.12. |
Defaulted
Interest.
|
If
the
Issuer defaults in a payment of interest on the Notes, it shall pay the
defaulted interest, plus (to the extent lawful) any interest payable on the
defaulted interest, in any lawful manner. The Issuer may pay the defaulted
interest to the persons who are Holders on a subsequent special record date,
which date shall be the fifteenth day next preceding the date fixed by the
Issuer for the payment of defaulted interest or the next succeeding Business
Day
if such date is not a Business Day. At least 15 days before any such subsequent
special record date, the Issuer shall mail to each Holder, with a copy to the
Trustee, a notice that states the subsequent special record date, the payment
date and the amount of defaulted interest, and interest payable on such
defaulted interest, if any, to be paid.
| SECTION 2.13. |
CUSIP
and ISIN Numbers.
|
The
Issuer in issuing the Notes may use “CUSIP” or “ISIN” numbers, and if so, the
Trustee shall use the “CUSIP” or “ISIN” numbers in notices of redemption or
exchange as a convenience to Holders; provided,
however,
that any
such notice may state that no representation is made as to the correctness
or
accuracy of the “CUSIP” or “ISIN” numbers 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 Issuer will promptly notify the Trustee of any change in
the
“CUSIP” or “ISIN” numbers.
| SECTION 2.14. |
Deposit
of Moneys.
|
Subject
to Section 2 of the Notes, prior to 10:00 a.m. New York City time on
each
Interest Payment Date, Stated Maturity, Redemption Date and Payment Date, the
Issuer shall have deposited with the Paying Agent in immediately available
funds
money sufficient to make cash payments, if any, due on such Interest Payment
Date, Stated Maturity, Redemption Date and Payment Date, as the case may be,
in
a timely manner which permits the Paying Agent to remit payment to the Holders
on such Interest Payment Date, Stated Maturity, Redemption Date and Payment
Date, as the case may be.
| SECTION 2.15. |
Book-Entry
Provisions for Global Notes.
|
(a) The
Global Notes initially shall (i) be registered in the name of the Depository
or
the nominee of such Depository, (ii) be delivered to the Trustee as custodian
for such Depository and (iii) bear legends as set forth in Exhibit B,
as
applicable.
Members
of, or participants in, the Depository (“Participants”)
shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Global Note, and the Depository may be treated by the Issuer, the Trustee and
any agent of the Issuer or the Trustee as the absolute owner of the Global
Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall
prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository and
Participants, the operation of customary practices governing the exercise of
the
rights of a Holder of any Note.
(b) Transfers
of Global Notes shall be limited to transfers in whole, but not in part, to
the
Depository, its successors or their respective nominees. Interests of beneficial
owners in the Global Notes may be transferred or exchanged for Physical Notes
in
accordance with the rules and procedures of the Depository and the provisions
of
Section 2.16. In addition, Physical Notes shall be transferred to all
beneficial owners in exchange for their beneficial interests in Global Notes
if
(i) the Depository notifies the Issuer that it is unwilling or unable
to
act as Depository for any Global Note, the Issuer so notifies the Trustee in
writing and a successor Depository is not appointed by the Issuer within 90
days
of such notice or (ii) a Default or Event of Default has occurred and
is
continuing and the Registrar has received a written request from any owner
of a
beneficial interest in a Global Note to issue Physical Notes. Upon any issuance
of a Physical Note in accordance with this Section 2.15(b) the Trustee
is
required to register such Physical Note in the name of, and cause the same
to be
delivered to, such person or persons (or the nominee of any thereof). All such
Physical Notes shall bear the applicable legends, if any.
(c) In
connection with any transfer or exchange of a portion of the beneficial interest
in a Global Note to beneficial owners pursuant to paragraph (b) of this
Section 2.15, the Registrar shall (if one or more Physical Notes are
to be
issued) reflect on its books and records the date and a decrease in the
principal amount of such Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the Issuer
shall execute, and the Trustee shall authenticate and deliver, one or more
Physical Notes of authorized denominations in an aggregate principal amount
equal to the principal amount of the beneficial interest in the Global Note
so
transferred.
(d) In
connection with the transfer of a Global Note as an entirety to beneficial
owners pursuant to paragraph (b) of this Section 2.15, such Global
Note shall be deemed to be surrendered to the Trustee for cancellation, and
(i)
the Issuer shall execute, (ii) the Subsidiary Guarantors shall execute notations
of Subsidiary Guarantees on and (iii) the Trustee shall upon written
instructions from the Issuer authenticate and deliver, to each beneficial owner
identified by the Depository in exchange for its beneficial interest in such
Global Note, an equal aggregate principal amount of Physical Notes of authorized
denominations.
(e) Any
Physical Note constituting a Restricted Security delivered in exchange for
an
interest in a Global Note pursuant to paragraph (b) or (c) of this
Section 2.15 shall, except as otherwise provided by Section 2.16,
bear
the Private Placement Legend.
(f) The
Holder of any Global Note may grant proxies and otherwise authorize any Person,
including Participants and Persons that may hold interests through Participants,
to take any action which a Holder is entitled to take under this Indenture
or
the Notes.
| SECTION 2.16. |
Special
Transfer and Exchange Provisions.
|
(a) Transfers
to Non-QIB Institutional Accredited Investors.
The
following provisions shall apply with respect to the registration of any
proposed transfer of a Restricted Security to any Institutional Accredited
Investor which is not a QIB:
(i) the
Registrar shall register the transfer of any Restricted Security, whether or
not
such Note bears the Private Placement Legend, if (x) the requested transfer
is
after the second anniversary of the Closing Date; provided,
however,
that
neither the Issuer nor any Affiliate of the Issuer has held any beneficial
interest in such Note, or portion thereof, at any time on or prior to the second
anniversary of the Closing Date or (y) the proposed transferee has
delivered to the Registrar a certificate substantially in the form of
Exhibit C
hereto
and any legal opinions and certifications as may be reasonably requested by
the
Trustee and the Issuer;
(ii) if
the
proposed transferee is a Participant and the Notes to be transferred consist
of
Physical Notes which after transfer are to be evidenced by an interest in the
IAI Global Note, upon receipt by the Registrar of the Physical Note and
(x) written instructions given in accordance with the Depository’s and the
Registrar’s procedures and (y) the certificate, if required, referred to in
clause (y) of paragraph (i) above (and any legal opinion or other
certifications), the Registrar shall register the transfer and reflect on its
books and records the date and an increase in the principal amount of the IAI
Global Note in an amount equal to the principal amount of Physical Notes to
be
transferred, and the Registrar shall cancel the Physical Notes so transferred;
and
(iii) if
the
proposed transferor is a Participant seeking to transfer an interest in a Global
Note, upon receipt by the Registrar of (x) written instructions given
in
accordance with the Depository’s and the Registrar’s procedures and (y) the
certificate, if required, referred to in clause (y) of paragraph (i)
above, the Registrar shall register the transfer and reflect on its books and
records the date and (A) a decrease in the principal amount of the Global Note
from which such interests are to be transferred in an amount equal to the
principal amount of the Notes to be transferred and (B) an increase in the
principal amount of the IAI Global Note in an amount equal to the principal
amount of the Notes to be transferred.
(b) Transfers
to QIBs.
The
following provisions shall apply with respect to the registration of any
proposed transfer of a Restricted Security to a QIB:
(i) the
Registrar shall register the transfer of any Restricted Security, whether or
not
such Note bears the Private Placement Legend, if (x) the requested transfer
is after the second anniversary of the Closing Date; provided,
however,
that
neither the Issuer nor any Affiliate of the Issuer has held any beneficial
interest in such Note, or portion thereof, at any time on or prior to the second
anniversary of the Closing Date or (y) such transfer is being made by
a
proposed transferor who has checked the box provided for on the applicable
Global Note stating, or has otherwise advised the Issuer and the Registrar
in
writing, that the sale has been made in compliance with the provisions of
Rule 144A to a transferee who has signed the certification provided
for on
the applicable Global Note stating, or has otherwise advised the Issuer and
the
Registrar in writing, that it is purchasing the Note for its own account or
an
account with respect to which it exercises sole investment discretion and that
it and any such account is a QIB within the meaning of Rule 144A, and
is
aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuer as
it
has requested pursuant to Rule 144A or has determined not to request
such
information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from registration
provided by Rule 144A;
(ii) if
the
proposed transferee is a Participant and the Notes to be transferred consist
of
Physical Notes which after transfer are to be evidenced by an interest in the
144A Global Note, upon receipt by the Registrar of the Physical Note and written
instructions given in accordance with the Depository’s and the Registrar’s
procedures, the Registrar shall register the transfer and reflect on its book
and records the date and an increase in the principal amount of the 144A Global
Note in an amount equal to the principal amount of Physical Notes to be
transferred, and the Registrar shall cancel the Physical Notes so transferred;
and
(iii) if
the
proposed transferor is a Participant seeking to transfer an interest in the
IAI
Global Note or the Regulation S Global Note, upon receipt by the Registrar
of written instructions given in accordance with the Depository’s and the
Registrar’s procedures, the Registrar shall register the transfer and reflect on
its books and records the date and (A) a decrease in the principal amount of
the
IAI Global Note or the Regulation S Global Note, as the case may be,
in an
amount equal to the principal amount of the Notes to be transferred and (B)
an
increase in the principal amount of the 144A Global Note in an amount equal
to
the principal amount of the Notes to be transferred.
(c) Transfers
to Non-U.S. Persons.
The
following provisions shall apply with respect to any transfer of a Restricted
Security to a Non-U.S. Person under Regulation S:
(i) the
Registrar shall register any proposed transfer of a Restricted Security to
a
Non-U.S. Person upon receipt of a certificate substantially in the form of
Exhibit D
from the
proposed transferor and such certifications, legal opinions and other
information as the Trustee or the Issuer may reasonably request;
and
(ii) (a)
if
the proposed transferor is a Participant holding a beneficial interest in the
Rule 144A Global Note or the IAI Global Note or the Note to be transferred
consists of Physical Notes, upon receipt by the Registrar of (x) the documents
required by paragraph (i) and (y) instructions in accordance
with the
Depository’s and the Registrar’s procedures, the Registrar shall reflect on its
books and records the date and a decrease in the principal amount of the
Rule 144A Global Note or the IAI Global Note, as the case may be, in
an
amount equal to the principal amount of the beneficial interest in the
Rule 144A Global Note or the IAI Global Note, as the case may be, to
be
transferred or cancel the Physical Notes to be transferred, and (b) if
the
proposed transferee is a Participant, upon receipt by the Registrar of
instructions given in accordance with the Depository’s and the Registrar’s
procedures, the Registrar shall reflect on its books and records the date and
an
increase in the principal amount of the Regulation S Global Note in
an
amount equal to the principal amount of the Rule 144A Global Note, the
IAI
Global Note or the Physical Notes, as the case may be, to be
transferred.
(d) Exchange
Offer.
Upon
the occurrence of the Exchange Offer in accordance with the Registration Rights
Agreement, the Issuer shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.02, the Trustee shall authenticate one
or more
Global Notes and/or Physical Notes not bearing the Private Placement Legend
in
an aggregate principal amount equal to the principal amount of the beneficial
interests in the Initial Global Notes or Physical Notes, as the case may be,
tendered for acceptance in accordance with the Exchange Offer and accepted
for
exchange in the Exchange Offer.
(e) Restrictions
on Transfer and Exchange of Global Notes.
Notwithstanding any other provisions of this Indenture, a Global Note may not
be
transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository
or
a nominee of such successor Depository.
(f) Private
Placement Legend.
Upon
the transfer, exchange or replacement of Notes not bearing the Private Placement
Legend unless otherwise required by applicable law, the Registrar shall deliver
Notes that do not bear the Private Placement Legend. Upon the transfer, exchange
or replacement of Notes bearing the Private Placement Legend, the Registrar
shall deliver only Notes that bear the Private Placement Legend unless (i)
there
is delivered to the Trustee an Opinion of Counsel reasonably satisfactory to
the
Issuer and the Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with
the
provisions of the Securities Act or (ii) such Note has been offered and sold
(including pursuant to the Exchange Offer) pursuant to an effective registration
statement under the Securities Act.
(g) General.
By its
acceptance of any Note bearing the Private Placement Legend, each Holder of
such
a Note acknowledges the restrictions on transfer of such Note set forth in
this
Indenture and in the Private Placement Legend and agrees that it will transfer
such Note only as provided in this Indenture.
The
Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 2.15 or Section 2.16.
The
Issuer shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
The
Trustee shall have no obligation or duty to monitor, determine or inquire as
to
compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any Note
(including any transfers between or among Depository Participants or beneficial
owners of interests in any Global Note) other than to require delivery of such
certificates and other documentation or evidence as are expressly required
by,
and to do so if and when expressly required by the terms of, this Indenture,
and
to examine the same to determine substantial compliance as to form with the
express requirements hereof.
The
Trustee shall have no responsibility for the actions or omissions of the
Depository, or the accuracy of the books and records of the
Depository.
(h) Cancellation
and/or Adjustment of Global Note.
At such
time as all beneficial interests in a particular Global Note have been exchanged
for Physical 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 2.11
hereof. At any time prior to such cancellation, if any beneficial interest
in a
Global Note is exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note or for
Physical 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.
ARTICLE
THREE
REDEMPTION
| SECTION 3.01. |
Notices
to Trustee.
|
If
the
Issuer elects to redeem Notes pursuant to Section 5 or Section 6
of
the Notes, it shall notify the Trustee in writing of the Redemption Date, the
Redemption Price and the principal amount of Notes to be redeemed. The Issuer
shall give notice of redemption to the Trustee at least 45 days but not more
than 60 days before the Redemption Date (unless a shorter notice shall be agreed
to by the Trustee in writing), together with such documentation and records
as
shall enable the Trustee to select the Notes to be redeemed.
| SECTION 3.02. |
Selection
of Notes To Be Redeemed.
|
If
less
than all of the Notes are to be redeemed at any time pursuant to Section 5
or 6 of the Notes, the Trustee will select Notes for redemption as
follows:
(x) if
the
Notes are listed on a national securities exchange, in compliance with the
requirements of the principal national securities exchange on which the Notes
are listed; or
(y) if
the
Notes are not so listed, on a pro
rata
basis,
by lot or by such method as the Trustee shall deem fair and
appropriate;
provided,
however,
that,
in the case of such redemption pursuant to Section 6 of the Notes, the
Trustee will select the Notes on a pro
rata
basis or
on as nearly a pro
rata basis
as
practicable (subject to the procedures of the Depository) unless that method
is
otherwise prohibited.
No
Notes
of $1,000 or less shall be redeemed in part.
| SECTION 3.03. |
Notice
of Redemption.
|
At
least
30 days but not more than 60 days before a Redemption Date, the Issuer shall
mail a notice of redemption by first class mail, postage prepaid, to each Holder
whose Notes are to be redeemed at its registered address (except that a notice
issued in connection with a redemption referred to in Section 8.01 may
be
more than 60 days before such Redemption Date). At the Issuer’s request, the
Trustee shall forward the notice of redemption in the Issuer’s name and at the
Issuer’s expense. Each notice for redemption shall identify the Notes (including
the CUSIP or ISIN number) to be redeemed and shall state:
(1) the
Redemption Date;
(2) the
Redemption Price and the amount of accrued interest, if any, to be
paid;
(3) the
name
and address of the Paying Agent;
(4) that
Notes called for redemption must be surrendered to the Paying Agent to collect
the Redemption Price plus accrued interest, if any;
(5) that,
unless the Issuer defaults in making the redemption payment, interest on Notes
called for redemption ceases to accrue on and after the Redemption Date, and
the
only remaining right of the Holders of such Notes is to receive payment of
the
Redemption Price upon surrender to the Paying Agent of the Notes
redeemed;
(6) if
any
Note is being redeemed in part, the portion of the principal amount of such
Note
to be redeemed and that, after the Redemption Date, and upon surrender and
cancellation of such Note, a new Note or Notes in aggregate principal amount
equal to the unredeemed portion thereof will be issued;
(7) if
fewer
than all the Notes are to be redeemed, the identification of the particular
Notes (or portion thereof) to be redeemed, as well as the aggregate principal
amount of Notes to be redeemed and the aggregate principal amount of Notes
to be
outstanding after such partial redemption; and
(8) the
Section of the Notes or the Indenture, as applicable, pursuant to which
the
Notes are to be redeemed.
The
notice, if mailed in a manner herein provided, shall be conclusively presumed
to
have been given, whether or not the Holder receives such notice. In any case,
failure to give such notice by mail or any defect in the notice to the Holder
of
any Note designated for redemption in whole or in part shall not affect the
validity of the proceedings for the redemption of any other Note. Notices of
redemption may not be conditional.
| SECTION 3.04. |
Effect
of Notice of Redemption.
|
Once
notice of redemption is mailed in accordance with Section 3.03, Notes
called for redemption become due and payable on the Redemption Date and at
the
Redemption Price plus accrued interest, if any. Upon surrender to the Trustee
or
Paying Agent, such Notes called for redemption shall be paid at the Redemption
Price (which shall include accrued interest thereon to, but not including,
the
Redemption Date), but installments of interest, the maturity of which is on
or
prior to the Redemption Date, shall be payable to Holders of record at the
close
of business on the relevant Record Dates. On and after the Redemption Date
interest shall cease to accrue on Notes or portions thereof called for
redemption unless the Issuer shall have not complied with its obligations
pursuant to Section 3.05.
| SECTION 3.05. |
Deposit
of Redemption Price.
|
On
or
before 10:00 a.m. New York time on the Redemption Date, the Issuer shall deposit
with the Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price
plus accrued and unpaid interest, if any, of all Notes to be redeemed on that
date.
If
the
Issuer complies with the preceding paragraph, then, unless the Issuer defaults
in the payment of such Redemption Price plus accrued interest, if any, interest
on the Notes to be redeemed will cease to accrue on and after the applicable
Redemption Date, whether or not such Notes are presented for
payment.
| SECTION 3.06. |
Notes
Redeemed in Part.
|
If
any
Note is to be redeemed in part only, the notice of redemption that relates
to
such Note shall state the portion of the principal amount thereof to be
redeemed. A new Note or Notes in principal amount equal to the unredeemed
portion of the original Note or Notes shall be issued in the name of the Holder
thereof upon surrender and cancellation of the original Note or
Notes.
ARTICLE
FOUR
COVENANTS
| SECTION 4.01. |
Payment
of Notes.
|
The
Issuer shall pay the principal of, premium, if any, and interest on the Notes
in
the manner provided in the Notes, the Registration Rights Agreement and this
Indenture. An installment of principal of, or interest on, the Notes shall
be
considered paid on the date it is due if the Trustee or Paying Agent (other
than
the Issuer or an Affiliate thereof) holds on that date U.S. Legal Tender
designated for and sufficient to pay the installment. Interest on the Notes
will
be computed on the basis of a 360-day year comprised of twelve 30-day
months.
The
Issuer shall pay interest on overdue principal (including post petition interest
in a proceeding under any Bankruptcy Law), and overdue interest, to the extent
lawful, at the same rate per
annum
borne by
the Notes.
| SECTION 4.02. |
Maintenance
of Office or Agency.
|
The
Issuer shall maintain in the Borough of Manhattan, The City of New York, the
office or agency required under Section 2.03 (which may be an office
of the
Trustee or an affiliate of the Trustee or Registrar). The Issuer 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 Issuer 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 set forth in
Section 11.02.
The
Issuer 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 Issuer will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or
agency.
The
Issuer hereby initially designates U.S. Bank National Association, located
at
1360 Peachtree Street, N.E., Suite 1105, EX-GA-ATPT, Atlanta, Georgia 30309,
Attention: Corporate Trust Department, as such office of the Issuer in
accordance with Section 2.03.
| SECTION 4.03. |
Corporate
Existence.
|
Except
as
otherwise permitted by Article Five, the Issuer 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 of its
Restricted Subsidiaries in accordance with the respective organizational
documents of each such Restricted Subsidiary and the material rights (charter
and statutory) and material franchises of the Issuer and each of its Restricted
Subsidiaries; provided,
however,
that the
Issuer shall not be required to preserve any such right, franchise or corporate
existence with respect to itself or any Restricted Subsidiary if the Board
of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Issuer and its Restricted Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders of the Notes.
| SECTION 4.04. |
Payment
of Taxes.
|
The
Issuer and the Subsidiary Guarantors shall, and shall cause each of the
Restricted Subsidiaries to, pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all material taxes,
assessments and governmental charges levied or imposed upon it or any of the
Restricted Subsidiaries or upon the income, profits or property of it or any
of
the Restricted Subsidiaries and (b) all lawful claims for labor, materials
and supplies which, in each case, if unpaid, might by law become a material
liability or Lien upon the property of it or any of the Restricted Subsidiaries;
provided,
however,
that the
Issuer and the Subsidiary Guarantors shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount the applicability or validity is being contested in good faith
by
appropriate actions and for which appropriate provision has been
made.
| SECTION 4.05. |
Compliance
Certificate; Notice of Default.
|
(a) The
Issuer shall deliver to the Trustee, within 120 days after the close of each
fiscal year, an Officers’ Certificate stating that a review of the activities of
the Issuer and its Subsidiaries has been made under the supervision of the
signing Officers with a view to determining whether the Issuer and the
Subsidiary Guarantors have kept, observed, performed and fulfilled their
obligations under this Indenture and further stating, as to each such Officer
signing such certificate, that to the best of such Officer’s knowledge, the
Issuer and the Subsidiary Guarantors during such preceding fiscal year has
kept,
observed, performed and fulfilled each and every such covenant and no Default
occurred during such year and at the date of such certificate there is no
Default that has occurred and is continuing or, if such signers do know of
such
Default, the certificate shall specify such Default and what action, if any,
the
Issuer is taking or proposes to take with respect thereto. The Officers’
Certificate shall also notify the Trustee should the Issuer elect to change
the
manner in which it fixes the fiscal year end.
(b) The
Issuer shall deliver to the Trustee promptly and in any event within five days
after the Issuer becomes aware of the occurrence of any Default an Officers’
Certificate specifying the Default and what action, if any, the Issuer is taking
or proposes to take with respect thereto.
| SECTION 4.06. |
Waiver
of Stay, Extension or Usury Laws.
|
The
Issuer and each Subsidiary Guarantor covenants (to the extent permitted by
applicable law) that it will not at any time insist upon, plead, 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
such
Issuer or such Subsidiary Guarantor from paying all or any portion of the
principal of and/or interest on the Notes or the Subsidiary Guarantee of any
such Subsidiary Guarantor 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 permitted by applicable law)
each 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 4.07. |
Change
of Control.
|
The
Issuer must commence, within 30 days of the occurrence of a Change of
Control, and consummate an Offer to Purchase for all Notes then outstanding,
at
a purchase price equal to 101% of the principal amount of the Notes, plus
accrued and unpaid interest, if any, to the Payment Date.
| SECTION 4.08. |
Limitations
on Additional Indebtedness.
|
(a) The
Issuer will not, and will not permit any of its Restricted Subsidiaries to,
Incur any Indebtedness (including Acquired Indebtedness) if, immediately after
giving effect to the Incurrence of such additional Indebtedness and the receipt
and application of the proceeds therefrom, the aggregate principal amount of
all
outstanding Indebtedness of the Issuer and its Restricted Subsidiaries on a
consolidated basis determined in conformity with GAAP is greater than 60% of
Adjusted Total Assets.
(b) The
Issuer will not, and will not permit any of its Restricted Subsidiaries to,
Incur any Subsidiary Debt or any Secured Indebtedness if, immediately after
giving effect to the Incurrence of such additional Subsidiary Debt or Secured
Indebtedness and the receipt and application of the proceeds therefrom, the
aggregate principal amount of all outstanding Subsidiary Debt and Secured
Indebtedness of the Issuer and its Restricted Subsidiaries on a consolidated
basis determined in conformity with GAAP is greater than 40% of Adjusted Total
Assets.
(c) The
Issuer will not, and will not permit any of its Restricted Subsidiaries to,
Incur any Indebtedness (other than the Notes issued on the Closing Date and
other Indebtedness existing on the Closing Date); provided,
however,
that the
Issuer or any of the Subsidiary Guarantors may Incur Indebtedness if, after
giving effect to the Incurrence of such Indebtedness and the receipt and
application of the proceeds therefrom, the Interest Coverage Ratio of the Issuer
and its Restricted Subsidiaries on a consolidated basis would be greater than
2.0 to 1.
(d) Notwithstanding
paragraph (a), (b) or (c) above, the Issuer or any of its Restricted
Subsidiaries (except as specified below) may Incur each and all of the
following:
(1) Indebtedness
outstanding under the Line of Credit at any time in an aggregate principal
amount not to exceed $200 million;
(2) Indebtedness
owed to:
| (i) |
the
Issuer evidenced by an unsubordinated promissory
note,
|
| (ii) |
to
any Restricted Subsidiary;
|
provided,
however,
that any
event which results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any subsequent transfer of such Indebtedness (other than to the
Issuer or any other Restricted Subsidiary) shall be deemed, in each case, to
constitute an Incurrence of such Indebtedness not permitted by this clause
(2);
(3) Indebtedness
issued in exchange for, or the net proceeds of which are used to refinance
or
refund, outstanding Indebtedness (other than Indebtedness Incurred under clause
(1), (2) or (4) of this paragraph (d)) and any refinancings thereof
in an
amount not to exceed the amount so refinanced or refunded (plus premiums,
accrued interest, fees and expenses); provided,
however,
that
Indebtedness the proceeds of which are used to refinance or refund the Notes
or
Indebtedness that ranks equally with or subordinate in right of payment to,
the
Notes shall only be permitted under this clause (3) if:
| (i) |
in
case the Notes are refinanced in part or the Indebtedness to be refinanced
ranks equally with the Notes, such new Indebtedness, by its terms
or by
the terms of any agreement or instrument pursuant to which such new
Indebtedness is outstanding, ranks equally with or is expressly made
subordinate in right of payment to the remaining
Notes;
|
| (ii) |
in
case the Indebtedness to be refinanced is subordinated in right of
payment
to the Notes, such new Indebtedness, by its terms or by the terms
of any
agreement or instrument pursuant to which such new Indebtedness is
issued
or remains outstanding, is expressly made subordinate in right of
payment
to the Notes at least to the extent that the Indebtedness to be refinanced
is subordinated to the Notes; and
|
| (iii) |
such
new Indebtedness, determined as of the date of Incurrence of such
new
Indebtedness, does not mature prior to the Stated Maturity of the
Indebtedness to be refinanced or refunded, and the Average Life of
such
new Indebtedness is at least equal to the remaining Average Life
of the
Indebtedness to be refinanced or
refunded;
|
provided
further,
however,
that in
no event may Indebtedness of the Issuer that ranks equally with or subordinate
in right of payment to the Notes be refinanced by means of any Indebtedness
of
any Restricted Subsidiary pursuant to this clause (3);
(4) Indebtedness:
| (i) |
in
respect of performance, surety or appeal bonds provided in the ordinary
course of business,
|
| (ii) |
under
Currency Agreements and Interest Rate Agreements; provided, however,
that
such agreements (x) are designed solely to protect the Issuer or
any of
its Restricted Subsidiaries against fluctuations in foreign currency
exchange rates or interest rates and (y) do not increase the Indebtedness
of the obligor outstanding at any time other than as a result of
fluctuations in foreign currency exchange rates or interest rates
or by
reason of fees, indemnities and compensation payable thereunder;
and
|
| (iii) |
arising
from agreements providing for indemnification, adjustment of purchase
price or similar obligations, or from Guarantees or letters of credit,
surety bonds or performance bonds securing any obligations of the
Issuer
or any of its Restricted Subsidiaries pursuant to such agreements,
in any
case Incurred in connection with the disposition of any business,
assets
or Restricted Subsidiary (other than Guarantees of Indebtedness Incurred
by any Person acquiring all or any portion of such business, assets
or
Restricted Subsidiary for the purpose of financing such acquisition),
in a
principal amount not to exceed the gross proceeds actually received
by the
Issuer and its Restricted Subsidiaries on a consolidated basis in
connection with such disposition;
|
(5) Indebtedness
of the Issuer, to the extent the net proceeds thereof are promptly:
| (i) |
used
to purchase Notes tendered in an Offer to Purchase made as a result
of a
Change in Control, or
|
| (ii) |
deposited
to defease the Notes as described in Sections 8.02 and 8.03,
or
|
| (iii) |
deposited
to discharge the obligations under the Notes and this Indenture as
described in Section 8.01;
|
(6) Guarantees
of the Notes and Guarantees of Indebtedness of the Issuer by any of its
Restricted Subsidiaries provided the guarantee of such Indebtedness is permitted
by and made in accordance with Section 4.14; or
(7) additional
Indebtedness of the Issuer and its Restricted Subsidiaries not to exceed $30
million in aggregate principal amount at any time outstanding.
(e) Notwithstanding
any other provision of this Section 4.08, the maximum amount of
Indebtedness that the Issuer or any of its Restricted Subsidiaries may Incur
pursuant to this Section 4.08 shall not be deemed to be exceeded, with
respect to any outstanding Indebtedness, due solely to the result of
fluctuations in the exchange rates of currencies.
(f) For
purposes of determining any particular amount of Indebtedness under this
Section 4.08,
(1) Indebtedness
Incurred under the Line of Credit on or prior to the Closing Date shall be
treated as Incurred pursuant to clause (1) of paragraph (d) of this
Section 4.08, and
(2) Guarantees,
Liens or obligations with respect to letters of credit supporting Indebtedness
otherwise included in the determination of such particular amount shall not
be
included.
For
purposes of determining compliance with this Section 4.08, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of permitted Indebtedness described in clauses (1) through (7) of
paragraph (d) above or is entitled to be incurred pursuant to
paragraph (c) above, the Issuer shall, in its sole discretion, classify
(and may later reclassify) such item of Indebtedness and may divide and classify
such Indebtedness in more than one of the types of Indebtedness described,
except that Indebtedness incurred under the Line of Credit on the Closing Date
shall be deemed to have been incurred under clause (1) of paragraph (d)
above.
| SECTION 4.09. |
Limitations
on Restricted Payments.
|
(a) The
Issuer will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly:
(1) declare
or pay any dividend or make any distribution on or with respect to Capital
Stock
of the Issuer held by Persons other than the Issuer or any of its Restricted
Subsidiaries, other than dividends or distributions payable solely in shares
of
its Capital Stock (other than Disqualified Stock) or in options, warrants or
other rights to acquire shares of such Capital Stock;
(2) purchase,
redeem, retire or otherwise acquire for value any shares of Capital Stock
(including options, warrants or other rights to acquire such shares of Capital
Stock) of the Issuer;
(3) make
any
voluntary or optional principal payment, or voluntary or optional redemption,
repurchase, defeasance, or other acquisition or retirement for value, of
Indebtedness of the Issuer that is subordinated in right of payment to the
Notes
or the Subsidiary Guaranties of the Notes; or
(4) make
an
Investment, other than a Permitted Investment, in any Person
(such
payments or any other actions described in clauses (1) through (4) above being
collectively “Restricted
Payments”)
if, at
the time of, and after giving effect to, the proposed Restricted
Payment:
(A) a
Default
or Event of Default shall have occurred and be continuing,
(B) the
Issuer could not Incur at least $1.00 of Indebtedness under paragraphs (a),
(b) and (c) of Section 4.08, or
(C) the
aggregate amount of all Restricted Payments (the amount, if other than in cash,
to be determined in good faith by the Board of Directors, whose determination
shall be conclusive and evidenced by a Board Resolution) made after March 22,
2004 shall exceed the sum of:
| (i) |
95%
of the aggregate amount of the Funds From Operations (or, if the
amount of
Funds From Operations is a loss, minus 100% of the amount of such
loss)
accrued on a cumulative basis during the period (taken as one accounting
period) beginning January 1, 2004 and ending on the last day of the
last
fiscal quarter preceding the Transaction Date for which reports have
been
filed with the SEC or provided to the Trustee pursuant to the
Section 4.15, plus
|
| (ii) |
100%
of the aggregate Net Cash Proceeds received by the Issuer after March
22,
2004 from the issuance and sale permitted by this Indenture of its
Capital
Stock (other than Disqualified Stock) to a Person who is not a Subsidiary
of the Issuer, including from an issuance or sale permitted by this
Indenture of Indebtedness of the Issuer for cash subsequent to March
22,
2004 upon the conversion of such Indebtedness into Capital Stock
(other
than Disqualified Stock) of the Issuer, or from the issuance to a
Person
who is not a Subsidiary of the Issuer of any options, warrants or
other
rights to acquire Capital Stock of the Issuer (in each case, exclusive
of
any Disqualified Stock or any options, warrants or other rights that
are
redeemable at the option of the holder, or are required to be redeemed,
prior to the Stated Maturity of the Notes), plus
|
| (iii) |
an
amount equal to the net reduction in Investments (other than reductions
in
Permitted Investments) in any Person after March 22, 2004 resulting
from
payments of interest on Indebtedness, dividends, repayments of loans
or
advances, or other transfers of assets, in each case to the Issuer
or any
of its Restricted Subsidiaries or from the Net Cash Proceeds from
the sale
of any such Investment (except, in each case, to the extent any such
payment or proceeds are included in the calculation of Funds From
Operations) or from redesignations of Unrestricted Subsidiaries as
Restricted Subsidiaries (valued in each case as provided in the definition
of “Investments”) not to exceed, in each case, the amount of Investments
previously made by the Issuer and its Restricted Subsidiaries in
such
Person or Unrestricted Subsidiary, plus
|
| (iv) |
the
fair market value of noncash tangible assets or Capital Stock acquired
in
exchange for an issuance of Capital Stock (other than Disqualified
Stock
or Capital Stock issued in exchange for Capital Stock of the Issuer
pursuant to clauses (3) or (4) of the Section 4.09(c)) of
the Issuer
subsequent to March 22, 2004, plus
|
| (v) |
$25
million.
|
(b) Notwithstanding
Section 4.09(a), the Issuer may declare or pay any dividend or make
any
distribution that is necessary to maintain the Issuer’s status as a REIT under
the Code if:
(1) the
aggregate principal amount of all outstanding Indebtedness of the Issuer and
its
Restricted Subsidiaries on a consolidated basis at such time is less than 60%
of
Adjusted Total Assets; and
(2) no
Default or Event of Default shall have occurred and be continuing.
(c) The
provisions of Section 4.09(a) and 4.09(b) shall not be violated by reason
of:
(1) the
payment of any dividend within 60 days after the date of declaration thereof
if,
at said date of declaration, such payment would comply with
Section 4.09(b);
(2) the
redemption, repurchase, defeasance or other acquisition or retirement for value
of Indebtedness that is subordinated in right of payment to the Notes including
premium, if any, and accrued and unpaid interest, with the proceeds of, or
in
exchange for, Indebtedness Incurred under Section 4.08(d)(3);
(3) the
repurchase, redemption or other acquisition of Capital Stock of the Issuer
or an
Unrestricted Subsidiary (or options, warrants or other rights to acquire such
Capital Stock) in exchange for, or out of the proceeds of an issuance of, shares
of Capital Stock (other than Disqualified Stock) of the Issuer (or options,
warrants or other rights to acquire such Capital Stock) within 90 days of such
repurchase, redemption or other acquisition;
(4) the
making of any principal payment on, or the repurchase, redemption, retirement,
defeasance or other acquisition for value of, Indebtedness of the Issuer which
is subordinated in right of payment to the Notes in exchange for, or out of
the
proceeds of an issuance of, shares of the Capital Stock (other than Disqualified
Stock) of the Issuer (or options, warrants or other rights to acquire such
Capital Stock) within 90 days of such principal payment, repurchase, redemption,
retirement, defeasance or other acquisition;
(5) payments
or distributions, to dissenting stockholders pursuant to applicable law pursuant
to or in connection with a consolidation, merger or transfer of assets that
complies with the provisions of this Indenture applicable to mergers,
consolidations and transfers of all or substantially all of the property and
assets of the Issuer;
(6) the
payment of any regularly scheduled cash dividend on shares of cumulative
preferred stock of the Issuer outstanding on March 22, 2004 as in effect on
March 22, 2004;
(7) the
repurchase, redemption or other acquisition or retirement for value of any
shares of Capital Stock of the Issuer held by any member of the Issuer’s (or any
of the Restricted Subsidiaries’) management or other employees pursuant to (A)
any management or employee equity subscription agreement, stock option agreement
or similar agreement in an aggregate amount not to exceed $1 million in the
aggregate in any 12-month period or (B) the terms of any employee stock option
plan of the Issuer for the purpose of paying employee withholding taxes with
respect to such shares; or
(8) additional
Restricted Payments in an aggregate amount not to exceed $15
million;
provided,
however,
that,
except in the case of clauses (1) and (3), no Default or Event of Default shall
have occurred and be continuing or occur as a direct consequence of the actions
or payments set forth therein.
Each
Restricted Payment permitted pursuant to the immediately preceding
paragraph (other than the Restricted Payment referred to in clause (2)
of
the immediately preceding paragraph or an exchange of Capital Stock
for
Capital Stock or Indebtedness referred to in clause (3) or (4) of the
immediately preceding paragraph), and the Net Cash Proceeds from any issuance
of
Capital Stock referred to in clauses (3) and (4) of the immediately preceding
paragraph, shall be included in calculating whether the conditions of
Section 4.09(a)(C) have been met with respect to any subsequent Restricted
Payments.
| SECTION 4.10. |
Maintenance
of Total Unencumbered Assets.
|
The
Issuer and its Restricted Subsidiaries will maintain Total Unencumbered Assets
of not less than 150% of the aggregate outstanding principal amount of the
Unsecured Indebtedness of the Issuer and its Restricted Subsidiaries on a
consolidated basis.
| SECTION 4.11. |
Limitations
on Asset Sales.
|
(a) The
Issuer will not, and will not permit any of its Restricted Subsidiaries to,
consummate any Asset Sale, unless:
(1) the
consideration received by the Issuer or such Restricted Subsidiary is at least
equal to the fair market value of the assets sold or disposed of;
and
(2) at
least
75% of the consideration received consists of cash or Temporary Cash
Investments; provided,
however,
with
respect to the sale of one or more healthcare properties that (A) up to 75%
of
the consideration may consist of indebtedness of the purchaser of such
healthcare properties so long as such indebtedness is secured by a first
priority Lien on the healthcare property or properties sold and (B) up to
66-2/3% of the consideration may consist of indebtedness of the purchaser of
such healthcare properties so long as such indebtedness is secured by a second
priority Lien on the healthcare property or properties sold and such
indebtedness together with all other indebtedness received pursuant to this
clause (B) does not exceed $7.5 million in aggregate principal amount at any
time outstanding.
(b) In
the
event and to the extent that the Net Cash Proceeds received by the Issuer or
such Restricted Subsidiary from one or more Asset Sales occurring on or after
the Closing Date in any period of 12 consecutive months exceed 5% of Adjusted
Consolidated Net Tangible Assets (determined as of the date closest to the
commencement of such 12-month period for which a consolidated balance sheet
of
the Issuer and its Restricted Subsidiaries has been filed with the SEC or
provided to the Trustee pursuant to Section 4.15), then the Issuer shall
or
shall cause the relevant Restricted Subsidiary to:
(1) within
12
months after the date Net Cash Proceeds so received exceed 5% of Adjusted
Consolidated Net Tangible Assets:
| (i) |
apply
an amount equal to such excess Net Cash Proceeds to permanently reduce
Indebtedness under the Line of Credit,
or
|
| (ii) |
invest
an equal amount, or the amount not so applied pursuant to clause (i)
of this Section 4.11(b)(1) (or enter into a definitive agreement
committing to so invest within six months after the date of such
agreement), in property or assets (which may include Permitted Mortgage
Investments) (other than current assets) of a nature or type or that
are
used in a business (or in a Restricted Subsidiary having property
and
assets of a nature or type, or engaged in a business) similar or
related
to the nature or type of the property and assets of, or the business
of,
the Issuer or any of its Restricted Subsidiaries existing on the
date of
such Investment, and
|
(2) apply
(no
later than the end of the 12-month period referred to in clause (1)) such excess
Net Cash Proceeds (to the extent not applied pursuant to clause (1)) as provided
in the following paragraph of this Section 4.11.
The
amount of such excess Net Cash Proceeds required to be applied (or to be
committed to be applied) during such 12-month period as set forth in clause
(1)
of the preceding sentence and not applied as so required by the end of such
period shall constitute “Excess
Proceeds.”
If, as
of the first day of any calendar month, the aggregate amount of Excess Proceeds
not previously subject to an Offer to Purchase pursuant to this
Section 4.11 totals at least $10 million, the Issuer must commence,
not
later than the fifteenth Business Day of such month, and consummate an Offer
to
Purchase from the Holders of the Notes and, to the extent required by the terms
of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness
on a pro
rata
basis an
aggregate principal amount of Notes (and Pari Passu Indebtedness) equal to
the
Excess Proceeds on such date, at a purchase price equal to 100% of the principal
amount of the Notes (and Pari Passu Indebtedness), plus, in each case, accrued
and unpaid interest, if any, to the Payment Date.
| SECTION 4.12. |
Limitations
on Transactions with Affiliates.
|
(a) The
Issuer will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, enter into, renew or extend any transaction (including
the purchase, sale, lease or exchange of property or assets, or the rendering
of
any service) with any holder (or any Affiliate of such holder) of 5% or more
of
any class of Capital Stock of the Issuer or with any Affiliate of the Issuer
or
any of its Restricted Subsidiaries, except upon fair and reasonable terms no
less favorable to the Issuer or such Restricted Subsidiary than could be
obtained, at the time of such transaction or, if such transaction is pursuant
to
a written agreement, at the time of the execution of the agreement providing
therefor, in a comparable arm’s-length transaction with a Person that is not
such a holder or an Affiliate.
(b) The
limitation set forth in Section 4.12(a) does not limit, and shall not
apply
to:
(1) transactions
(A) approved by a majority of the independent directors of the Board of
Directors of the Issuer or (B) for which the Issuer or any Restricted Subsidiary
delivers to the Trustee a written opinion of a nationally recognized investment
banking firm stating that the transaction is fair to the Issuer or such
Restricted Subsidiary from a financial point of view;
(2) any
transaction solely between the Issuer and any of its Wholly Owned Restricted
Subsidiaries or solely between Wholly Owned Restricted
Subsidiaries;
(3) the
payment of reasonable and customary fees and expenses to directors of the Issuer
who are not employees of the Issuer;
(4) any
Restricted Payments not prohibited by Section 4.09;
(5) any
employment agreement entered into by the Issuer or any Restricted Subsidiary
with an employee of the Issuer or such Restricted Subsidiary in the ordinary
course consistent with past practice; or
(6) advances
to employees of the Issuer or any Restricted Subsidiary for reasonable moving
and relocation, entertainment and travel expenses and similar expenses in the
ordinary course of business and consistent with past practice.
(c) Notwithstanding
Section 4.12(a) and 4.12(b), any transaction or series of related
transactions covered by Section 4.12(a) and not covered by clause (2)
through (6) of Section 4.12(b):
| (i) |
the
aggregate amount of which exceeds $5 million in value must be approved
or
determined to be fair in the manner provided for in
Section 4.12(b)(1)(A) or (B);
and
|
| (ii) |
the
aggregate amount of which exceeds $10 million in value, must be determined
to be fair in the manner provided for in
Section 4.12(b)(1)(B);
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| SECTION 4.13. |
Limitations
on Dividend and Other Payment
Restrictions
|
Affecting
Restricted Subsidiaries.
(a) The
Issuer will not, and will not permit any of its Restricted Subsidiaries to,
create or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Restricted
Subsidiary to:
(1) pay
dividends or make any other distributions permitted by applicable law on any
Capital Stock of such Restricted Subsidiary owned by the Issuer or any of its
Restricted Subsidiaries;
(2) pay
any
Indebtedness owed to the Issuer or any other Restricted Subsidiary;
(3) make
loans or advances to the Issuer or any other Restricted Subsidiary;
or
(4) transfer
its property or assets to the Issuer or any other Restricted
Subsidiary.
(b) Section 4.13(a)
shall not restrict any encumbrances or restrictions:
(1) existing
on the Closing Date in this Indenture, the Line of Credit and any other
agreement in effect on the Closing Date as in effect on the Closing Date, and
any extensions, refinancings, renewals or replacements of such agreements;
provided,
however,
that the
encumbrances and restrictions in any such extensions, refinancings, renewals
or
replacements are no less favorable in any material respect to the Holders than
those encumbrances or restrictions that are then in effect and that are being
extended, refinanced, renewed or replaced;
(2) existing
under or by reason of applicable law;
(3) existing
with respect to any Person or the property or assets of such Person acquired
by
the Issuer or any Restricted Subsidiary, existing at the time of such
acquisition and not Incurred in contemplation thereof, which encumbrances or
restrictions are 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;
(4) in
the
case of Section 4.15(a)(4):
| (i) |
that
restrict in a customary manner the subletting, assignment or transfer
of
any property or asset that is a lease, license, conveyance or contract
or
similar property or asset,
|
| (ii) |
existing
by virtue of any transfer of, agreement to transfer, option or right
with
respect to, or Lien on, any property or assets of the Issuer or any
Restricted Subsidiary not otherwise prohibited by this Indenture,
or
|
| (iii) |
arising
or agreed to in the ordinary course of business, not relating to
any
Indebtedness, and that do not, individually or in the aggregate,
detract
from the value of property or assets of the Issuer or any Restricted
Subsidiary in any manner material to the Issuer and its Restricted
Subsidiaries taken as a whole;
|
(5) with
respect to a Restricted Subsidiary and imposed pursuant to an agreement that
has
been entered into for the sale or disposition of all or substantially all of
the
Capital Stock of, or property and assets of, such Restricted
Subsidiary;
(6) contained
in the terms of any Indebtedness or any agreement pursuant to which such
Indebtedness was issued if:
| (i) |
the
encumbrance or restriction applies only in the event of a payment
default
or a default with respect to a financial covenant contained in such
Indebtedness or agreement,
|
| (ii) |
the
encumbrance or restriction is not materially more disadvantageous
to the
Holders of the Notes than is customary in comparable financings (as
determined by the good faith judgment of the Board of Directors of
the
Issuer), and
|
| (iii) |
the
Board of Directors of the Issuer, in its good faith, determines that
such
encumbrance or restriction will not materially affect the Issuer’s ability
to make principal or interest payments on the Notes;
or
|
(7) restrictions
on the transfer of assets subject to any Lien permitted under this Indenture
imposed by the holder of such Lien.
(c) Nothing
contained in this Section 4.13 shall prevent the Issuer or any Restricted
Subsidiary from restricting the sale or other disposition of property or assets
of the Issuer or any of its Restricted Subsidiaries that secure Indebtedness
of
the Issuer or any of its Restricted Subsidiaries.
| SECTION 4.14. |
Limitation
on Issuances of Guarantees by
Restricted
|
Subsidiaries.
(a) The
Issuer will not permit any of its Restricted Subsidiaries, directly or
indirectly, to Guarantee any Indebtedness of the Issuer which ranks equally
with
or subordinate in right of payment to the Notes (“Guaranteed
Indebtedness”),
unless:
(1) such
Restricted Subsidiary simultaneously executes and delivers a supplemental
indenture to this Indenture providing for a Subsidiary Guarantee by such
Restricted Subsidiary; and
(2) such
Restricted Subsidiary waives and will not in any manner whatsoever claim or
take
the benefit or advantage of, any rights of reimbursement, indemnity or
subrogation or any other rights against the Issuer or any other Restricted
Subsidiary as a result of any payment by such Restricted Subsidiary under its
Subsidiary Guarantee;
provided,
however,
that
this paragraph shall not be applicable to any Guarantee of any Restricted
Subsidiary that existed at the time such Person became a Restricted Subsidiary
and was not Incurred in connection with, or in contemplation of, such person
becoming a Restricted Subsidiary. If the Guaranteed Indebtedness:
| (i) |
ranks
equally with the Notes, then the Guarantee of such Guaranteed Indebtedness
shall rank equally with, or subordinate to, the Subsidiary Guarantee;
or
|
| (ii) |
is
subordinate to the Notes, then the Guarantee of such Guaranteed
Indebtedness shall be subordinated to the Subsidiary Guarantee at
least to
the extent that the Guaranteed Indebtedness is subordinated to the
Notes.
|
(b) Any
Subsidiary Guarantee by a Restricted Subsidiary may provide by its terms that
it
shall be automatically and unconditionally released and discharged
upon:
(1) any
sale,
exchange or transfer, to any Person not an Affiliate of the Issuer of all of
the
Capital Stock held by the Issuer and its Restricted Subsidiaries in, or all
or
substantially all the assets of, such Restricted Subsidiary (which sale,
exchange or transfer is not prohibited by this Indenture); or
(2) the
release or discharge of the Guarantee which resulted in the creation of such
Subsidiary Guarantee, except a discharge or release by or as a result of payment
under such Guarantee.
| SECTION 4.15. |
Reports
to Holders.
|
Whether
or not the Issuer is then required to file reports with the SEC, the Issuer
shall file with the SEC all such reports and other information as it would
be
required to file with the SEC by Sections 13 (a) or 15 (d) under
the
Exchange Act if it was subject thereto; provided,
however,
that,
if filing such documents by the Issuer with the SEC is not permitted under
the
Exchange Act, the Issuer shall provide such documents to the Trustee and upon
written request supply copies of such documents to any prospective Holder.
The
Issuer shall supply the Trustee and each Holder or shall supply to the Trustee
for forwarding to each Holder, without cost to such Holder, copies of such
reports and other information.
| SECTION 4.16. |
Suspension
of Covenants
|
During
a
Suspension Period, the Issuer and its Subsidiaries will not be subject to
Section 4.07, 4.09, 4.11, 4.12, 4.13 or 4.14. All other provisions of
this
Indenture shall continue to apply during any Suspension Period so long as any
Notes remain outstanding.
“Suspension
Period”
means
any period (1) beginning on the date that:
(1) the
Notes
have Investment Grade status by both Rating Agencies;
(2) no
Default or Event of Default has occurred and is continuing; and
(3) the
Issuer has delivered an Officers’ Certificate to the Trustee certifying that the
conditions set forth in clauses (1) and (2) above are satisfied;
and
(2) ending
on
the date (the “Reversion
Date”)
that
the Notes cease to have Investment Grade Status.
On
each
Reversion Date, all Indebtedness incurred during the Suspension Period prior
to
such Reversion Date will be deemed to have been outstanding on the Closing
Date.
For
purposes of calculating the amount available to be made as Restricted Payments
under Section 4.09(a)(C), calculations under that clause will be made
with
reference to the Transaction Date as set forth in that clause. Accordingly,
(x)
Restricted Payments made during the Suspension Period permitted pursuant to
any
of clauses (1) through (8) of Section 4.09(c), will reduce the amount
available to be made as Restricted Payments under Section 4.09(a)(C)
to the
extent that would otherwise be required by the second paragraph of
Section 4.09(b); provided,
however,
that
the amount available to be made as a Restricted Payment on the Transaction
Date
shall not be reduced to below zero solely as a result of such Restricted
Payments, but may be reduced to below zero as a result of cumulative Funds
from
Operations for the purpose of Section 4.09(a)(C)(i) being a negative,
and
(y) the items specified in Section 4.09(a)(C)(i), (ii), (iii)
and (iv)
that occur during the Suspension Period will increase the amount available
to be
made as Restricted Payment under Section 4.09(a)(C). Any Restricted
Payment
made during the Suspension Period that are of the type described in
Section 4.09(c) (other than the Restricted Payment referred to in
clause (2) of Section 4.09(c) or an exchange of Capital Stock
for
Capital Stock or Indebtedness referred to in clause (3) or (4) of
Section 4.09(c)), and the Net Cash Proceeds from any issuance of Capital
Stock referred to in clauses (3) and (4) of Section 4.09(c)
shall
be included in calculating the amounts permitted to be incurred under
Section 4.09(a)(C) on each Reversion Date.
For
purposes of Section 4.11, on each Reversion Date, the unutilized Excess
Proceeds will be reset to zero.
During
any Suspension Period, the Issuer will not, and will not permit any of its
Restricted Subsidiaries to, make any Investment in an Unrestricted
Subsidiary.
ARTICLE
FIVE
SUCCESSOR
CORPORATION
| SECTION 5.01. |
Consolidation,
Merger and Sale of Assets.
|
(a) The
Issuer will not consolidate with or merge with or into, or sell, convey,
transfer, lease or otherwise dispose of all or substantially of its property
and
assets (as an entirety or substantially an entirety in one transaction or a
series of related transactions) to, any Person or permit any Person to merge
with or into the Issuer unless:
(1) the
Issuer shall be the continuing Person, or the Person (if other than the Issuer)
formed by such consolidation or into which the Issuer is merged or that acquired
or leased such property and assets of the Issuer shall be a corporation
organized and validly existing under the laws of the United States of America
or
any state or jurisdiction thereof and shall expressly assume, by a supplemental
indenture, executed and delivered to the Trustee, all of the obligations of
the
Issuer on the Notes and under this Indenture;
(2) immediately
after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing;
(3) immediately
after giving effect to such transaction on a pro
forma
basis
the Issuer, or any Person becoming the successor obligor of the Notes, as the
case may be, could Incur at least $1.00 of Indebtedness under
paragraphs (a), (b) and (c) of Section 4.08; provided,
however,
that
this clause (3) shall not apply to a consolidation or merger with or into a
Wholly Owned Restricted Subsidiary with a positive net worth; provided
further,
however,
that,
in connection with any such merger or consolidation, no consideration (other
than Capital Stock (other than Disqualified Stock) in the surviving Person
or
the Issuer) shall be issued or distributed to the holders of Capital Stock
of
the Issuer; and
(4) the
Issuer delivers to the Trustee an Officers’ Certificate (attaching the
arithmetic computations to demonstrate compliance with clause (3) above) and
an
Opinion of Counsel, in each case stating that such consolidation, merger or
transfer and such supplemental indenture complies with this Section 5.01
and that all conditions precedent provided for herein relating to such
transaction have been complied with; provided,
however,
that
clause (3) above does not apply if, in the good faith determination of the
Board
of Directors of the Issuer, whose determination shall be evidenced by a Board
Resolution, the principal purpose of such transaction is to change the state
of
domicile of the Issuer; provided
further,
however,
that
any such transaction shall not have as one of its purposes the evasion of the
foregoing limitations.
(b) Except
as
provided in Section 10.04, no Subsidiary Guarantor may consolidate with
or
merge with or into (whether or not such Subsidiary Guarantor is the surviving
Person) another Person, unless:
(1) either
such Subsidiary Guarantor shall be the continuing Person or the Person (if
other
than such Subsidiary Guarantor) formed by such consolidation or into which
Subsidiary Guarantor is merged shall be a corporation or other legal entity
organized and validly existing under the laws of the United States of America
or
any state or jurisdiction thereof and shall expressly assume, by a supplemental
indenture, executed and delivered to the Trustee, all of the obligations of
such
Subsidiary Guarantor under the Subsidiary Guarantee of such Subsidiary Guarantor
and under this Indenture;
(2) immediately
after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing.
(c) For
purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries, the Capital Stock of which constitute all or substantially all
of
the properties and assets of the Issuer, will be deemed to be the transfer
of
all or substantially all of the properties and assets of the
Issuer.
(d) Upon
any
such consolidation, combination or merger of the Issuer or a Subsidiary
Guarantor, or any such sale, conveyance, transfer, lease or other disposition
of
all or substantially all of the assets of the Issuer in accordance with this
Section 5.01, in which the Issuer or such Subsidiary Guarantor is not
the
continuing obligor under the Notes or its Subsidiary Guarantee, the surviving
entity formed by such consolidation or into which the Issuer or such Subsidiary
Guarantor is merged or the entity to which the sale, conveyance, transfer,
lease
or other disposition is made will succeed to, and be substituted for, and may
exercise every right and power of, the Issuer or such Subsidiary Guarantor
under
this Indenture and, the Notes and the Subsidiary Guarantees with the same effect
as if such surviving entity had been named therein as the Issuer or such
Subsidiary Guarantor and, except in the case of a lease, the Issuer or such
Subsidiary Guarantor, as the case may be, will be released from the obligation
to pay the principal of and interest on the Notes or in respect of its
Subsidiary Guarantee, as the case may be, and all of the Issuer’s or such
Subsidiary Guarantor’s other obligations and covenants under the Notes, this
Indenture and its Subsidiary Guarantee, if applicable.
(e) Notwithstanding
the foregoing, any Restricted Subsidiary may consolidate with or merge with
or
into the Issuer or another Restricted Subsidiary.
ARTICLE
SIX
DEFAULT
AND REMEDIES
| SECTION 6.01. |
Events
of Default.
|
Each
of
the following is an “Event
of Default”:
(1) default
in the payment of principal of, or premium, if any, on any Note when they are
due and payable at maturity, upon acceleration, redemption or
otherwise;
(2) default
in the payment of interest on any Note when they are due and payable, and such
default continues for a period of 30 days;
(3) default
in the performance or breach of the provisions of this Indenture applicable
to
mergers, consolidations and transfers of all or substantially all of the assets
of the Issuer or the failure by the Issuer to make or consummate an Offer to
Purchase in accordance with Section 4.07 or Section 4.11;
(4) the
Issuer defaults in the performance of or breaches any other covenant or
agreement of the Issuer in this Indenture or under the Notes (other than a
default specified in clause (1), (2) or (3) above) and such default or breach
continues for a period of 30 consecutive days after written notice by the
Trustee or the Holders of 25% or more in aggregate principal amount of the
Notes;
(5) there
occurs with respect to any issue or issues of Indebtedness of the Issuer or
any
Significant Subsidiary having an outstanding principal amount of $10 million
or
more in the aggregate for all such issues of all such Persons, whether such
Indebtedness now exists or shall hereafter be created,
| (i) |
an
event of default that has caused the Holder thereof to declare such
Indebtedness to be due and payable prior to its Stated Maturity and
such
Indebtedness has not been discharged in full or such acceleration
has not
been rescinded or annulled within 30 days of such acceleration
and/or
|
| (ii) |
the
failure to make a principal payment at the final (but not any interim)
fixed maturity and such defaulted payment shall not have been made,
waived
or extended within 30 days of such payment
default;
|
(6) any
final
judgment or order (not covered by insurance) for the payment of money in excess
of $10 million in the aggregate for all such final judgments or orders against
all such Persons (treating any deductibles, self-insurance or retention as
not
covered by insurance):
| (i) |
shall
be rendered against the Issuer or any Significant Subsidiary and
shall not
be paid or discharged, and
|
| (ii) |
and
there shall be any period of 60 consecutive days following entry
of the
final judgment or order that causes the aggregate amount for all
such
final judgments or orders outstanding and not paid or discharged
against
all such Persons to exceed $10 million during which a stay of enforcement
of such final judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect;
|
(7) a
court
of competent jurisdiction enters a decree or order for:
| (i) |
relief
in respect of the Issuer or any Significant Subsidiary in an involuntary
case under any Bankruptcy Law now or hereafter in
effect,
|
| (ii) |
appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator
or
similar official of the Issuer or any Significant Subsidiary or for
all or
substantially all of the property and assets of the Issuer or any
Significant Subsidiary, or
|
| (iii) |
the
winding up or liquidation of the affairs of the Issuer or any Significant
Subsidiary and, in each case, such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days;
or
|
(8) the
Issuer or any Significant Subsidiary:
| (i) |
commences
a voluntary case under any Bankruptcy Law now or hereafter in effect,
or
consents to the entry of an order for relief in an involuntary case
under
such law,
|
| (ii) |
consents
to the appointment of or taking possession by a receiver, liquidator,
assignee, custodian trustee, sequestrator or similar official of
the
Issuer or such Significant Subsidiary or for all or substantially
all of
the property and assets of the Issuer or such Significant Subsidiary,
or
|
| (iii) |
effects
any general assignment for the benefit of its
creditors.
|
| SECTION 6.02. |
Acceleration.
|
If
an
Event of Default (other than an Event of Default specified in clause (7) or
(8)
of Section 6.01 that occurs with respect to the Issuer) occurs and is
continuing under this Indenture, the Trustee or the Holders of at least 25%
in
aggregate principal amount of the Notes then outstanding, by written notice
to
the Issuer (and to the Trustee if such notice is given by the Holders), may,
and
the Trustee at the request of the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding shall, declare the principal of, premium,
if any, and accrued interest on the Notes to be immediately due and payable.
Upon a declaration of acceleration, such principal of, premium, if any, and
accrued interest shall be immediately due and payable. In the event of a
declaration of acceleration because an Event of Default set forth in clause
(5)
of Section 6.01 has occurred and is continuing, such declaration of
acceleration shall be automatically rescinded and annulled if the event of
default triggering such Event of Default pursuant to clause (5) of
Section 6.01 shall be remedied or cured by the Issuer or the relevant
Significant Subsidiary or waived by the holders of the relevant Indebtedness
within 60 days after the declaration of acceleration with respect
thereto.
If
an
Event or Default specified in clause (7) or (8) of Section 6.01 occurs
with
respect to the Issuer, the principal of, premium, if any, and accrued interest
on the Notes then outstanding shall automatically become and be immediately
due
and payable without any declaration or other act on the part of the Trustee
or
any Holder. The Holders of at least a majority in principal amount of the
outstanding Notes by written notice to the Issuer and to the Trustee, may waive
all past defaults and rescind and annul a declaration of acceleration and its
consequences if:
|
(x)
|
all
existing Events of Default, other than the nonpayment of the principal
of,
premium, if any, and interest on the Notes that have become due solely
by
such declaration of acceleration, have been cured or
waived;
|
|
(y)
|
the
rescission would not conflict with any judgment or decree of a court
of
competent jurisdiction; and
|
|
(z)
|
in
the event of a cure or waiver of a Default of the type set forth
in
Section 6.01(7) or (8), the Trustee shall have received an Officers’
Certificate and an Opinion of Counsel that such Default has been
cured or
waived.
|
No
such
rescission shall affect any subsequent Default or impair any right consequent
thereto.
| SECTION 6.03. |
Other
Remedies.
|
If
a
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, or
interest on, the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
The
Trustee may maintain a proceeding even if it does not possess any of the Notes
or does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder in exercising any right or remedy accruing upon a Default
shall not impair the right or remedy or constitute a waiver of or acquiescence
in the Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
| SECTION 6.04. |
Waiver
of Past Defaults.
|
Subject
to Sections 2.09, 6.07 and 9.02, the Holders of a majority in principal
amount of the outstanding Notes (which may include consents obtained in
connection with a tender offer or exchange offer of Notes) by notice to the
Trustee may waive an existing Default and its consequences, except a Default
in
the payment of principal of, or interest on, any Note as specified in
Section 6.01(1) or (2). The Issuer shall deliver to the Trustee an
Officers’ Certificate stating that the requisite percentage of Holders have
consented to such waiver and attaching copies of such consents. When a Default
is waived, it is cured and ceases.
| SECTION 6.05. |
Control
by Majority.
|
The
Holders of at least a majority in principal amount of the outstanding Notes
may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on it.
Subject to Section 7.01, however, the Trustee may refuse to follow any
direction that conflicts with any law or this Indenture, that may involve the
Trustee in personal liability, or that the Trustee determines in good faith
may
be unduly prejudicial to the rights of another Holder; provided,
however,
that
the Trustee may take any other action deemed proper by the Trustee which is
not
inconsistent with such direction.
In
the
event the Trustee takes any action or follows any direction pursuant to this
Indenture, the Trustee shall be entitled to indemnification against any loss
or
expense caused by taking such action or following such direction.
| SECTION 6.06. |
Limitation
on Suits.
|
No
Holder
will have any right to institute any proceeding with respect to this Indenture
or for any remedy thereunder, unless the Trustee:
(1) the
Holder gives the Trustee written notice of a continuing Event of
Default;
(2) the
Holders of at least 25% in aggregate principal amount of outstanding Notes
make
a written request to the Trustee to pursue the remedy;
(3) such
Holder or Holders offer the Trustee indemnity satisfactory to the Trustee
against any costs, liability or expense;
(4) the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and
(5) during
such 60-day period, the Holders of a majority in aggregate principal amount
of
the outstanding Notes do not give the Trustee a direction that is inconsistent
with the request.
However,
such limitations do not apply to a suit instituted by a Holder of any Note
for
enforcement of payment of the principal of or interest on such Note on or after
the due date therefor.
A
Holder
may not use this Indenture to prejudice the rights of another Holder or to
obtain a preference or priority over such other Holder.
| SECTION 6.07. |
Rights
of Holders To Receive Payment.
|
Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of principal of and premium, if any, and interest on, a Note, on or
after the respective due dates therefor, or to bring suit for the enforcement
of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of the Holder.
| SECTION 6.08. |
Collection
Suit by Trustee.
|
If
a
Default in payment of principal or interest specified in Section 6.01(1)
or
(2) occurs and is continuing, the Trustee may recover judgment in its own name
and as trustee of an express trust against the Issuer or any other obligor
on
the Notes for the whole amount of principal and accrued interest and fees
remaining unpaid, together with 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 per
annum
borne by
the Notes and such further amount as shall be sufficient to cover the costs
and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
| SECTION 6.09. |
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 compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and the Holders allowed in any judicial proceedings
relating to the Issuer, their creditors or their 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, and any Custodian
in
any such judicial proceedings is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to
the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agent and counsel, and any other amounts due the
Trustee under Section 7.07. Nothing herein contained shall be deemed
to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of
any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
The Trustee shall be entitled to participate as a member of any official
committee of creditors in the matters as it deems necessary or
advisable.
| SECTION 6.10. |
Priorities.
|
If
the
Trustee collects any money or property pursuant to this Article Six, it shall
pay out the money or property in the following order:
First:
to
the Trustee for amounts due under Section 7.07;
Second:
to Holders for interest accrued on the Notes, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes
for
interest;
Third:
to
Holders for principal amounts due and unpaid on the Notes, ratably, without
preference or priority of any kind, according to the amounts due and payable
on
the Notes for principal; and
Fourth:
to the Issuer or, if applicable, the Subsidiary Guarantors, as their respective
interests may appear.
The
Trustee, upon prior notice to the Issuer, may fix a record date and payment
date
for any payment to Holders 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 and expenses,
against any party litigant in the suit, having due regard to the merits and
good
faith of the claims or defenses made by the party litigant. This
Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10%
in principal amount of the outstanding Notes.
ARTICLE
SEVEN
TRUSTEE
| SECTION 7.01. |
Duties
of Trustee.
|
(a) If
a
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 person would exercise or use under
the
circumstances in the conduct of his or her own affairs.
(b) Except
during the continuance of a Default:
(1) The
Trustee need perform only those duties as are specifically set forth herein
or
in the Trust Indenture Act and no duties, covenants, responsibilities or
obligations shall be implied in this Indenture against 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 (including Officers’ Certificates) or opinions (including
Opinions of Counsel) furnished to the Trustee and conforming to the requirements
of this Indenture. However, in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished to
the
Trustee, the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) Notwithstanding
anything to the contrary herein, 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 Section 7.01(b).
(2) The
Trustee shall not be liable for any error of judgment made in good faith by
a
Responsible Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts.
(3) The
Trustee shall not be liable with respect to any action it takes or omits to
take
in good faith in accordance with a direction received by it pursuant to
Section 6.05.
(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 to take or omit to take any action under this Indenture
or take any action at the request or direction of Holders if it shall have
reasonable grounds for believing that repayment of such funds is not 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 this
Section 7.01.
(f) The
Trustee shall not be liable for interest on any money received by it except
as
the Trustee may agree in writing with the Issuer. Money held in trust by the
Trustee need not be segregated from other funds except to the extent required
by
law.
(g) In
the
absence of bad faith, negligence or willful misconduct on the part of the
Trustee, the Trustee shall not be responsible for the application of any money
by any Paying Agent other than the Trustee.
| SECTION 7.02. |
Rights
of Trustee.
|
Subject
to Section 7.01:
(a) The
Trustee may rely conclusively on any resolution, certificate (including any
Officers’ Certificate), statement, instrument, opinion (including any Opinion of
Counsel), notice, request, direction, consent, order, bond, debenture, or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate and an Opinion of Counsel, which shall conform to the provisions
of
Section 11.05. The Trustee shall not be liable for any action it takes
or
omits to take in good faith in reliance on such Officer’s Certificate or Opinion
of Counsel.
(c) The
Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent (other than an agent who is an
employee of the Trustee) appointed with due care.
(d) 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 under this Indenture.
(e) The
Trustee may consult with counsel of its selection and the advice or opinion
of
such counsel as to matters of law shall be full and complete authorization
and
protection from liability in respect of any action taken, omitted or suffered
by
it hereunder in good faith and in accordance with the advice or opinion of
such
counsel.
(f) 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 satisfactory to
it
against the costs, expenses and liabilities which may be incurred therein or
thereby.
(g) The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate (including any Officers’ Certificate),
statement, instrument, opinion (including any Opinion of Counsel), 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 Issuer, to examine the books, records,
and premises of the Issuer, personally or by agent or attorney at the sole
cost
of the Issuer.
(h) The
Trustee shall not be required to give any bond or surety in respect of the
performance of its powers and duties hereunder.
(i) The
permissive rights of the Trustee to do things enumerated in this Indenture
shall
not be construed as duties.
(j) Except
with respect to Section 4.01 and 4.05, the Trustee shall have no duty
to
inquire as to the performance of the Issuer with respect to the covenants
contained in Article 4. In addition, the Trustee shall not be deemed to have
knowledge of an Event of Default except (i) any Default or Event of Default
occurring pursuant to Sections 4.01, 6.01(1) or 6.01(2) or (ii) any
Default
or Event of Default known to a Responsible Officer.
(k) The
rights, privileges, protections, immunities and benefits given to the Trustee,
including its right to be indemnified, are extended to, and shall be enforceable
by, the Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
| SECTION 7.03. |
Individual
Rights of Trustee.
|
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer, its Subsidiaries or its
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 7.04. |
Trustee’s
Disclaimer.
|
The
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Notes, it shall not be accountable
for the Issuer’s use of the proceeds from the Notes, and it shall not be
responsible for any statement of the Issuer in this Indenture or any document
issued in connection with the sale of Notes or any statement in the Notes other
than the Trustee’s certificate of authentication. The Trustee makes no
representations with respect to the effectiveness or adequacy of this
Indenture.
| SECTION 7.05. |
Notice
of Default.
|
If
a
Default occurs and is continuing and is deemed to be known to the Trustee
pursuant to Section 7.02(j), the Trustee shall mail to each Holder notice of
the
uncured Default within 30 days after such Default occurs. Except in the case
of
a Default in payment of principal of, or interest on, any Note, including an
accelerated payment and the failure to make a payment on a Payment Date pursuant
to an Offer to Purchase or a Default in complying with the provisions of Article
Five, the Trustee may withhold the notice if and so long as the Board of
Directors, the executive committee, or a trust committee of directors and/or
Responsible Officers, of the Trustee in good faith determines that withholding
the notice is in the interest of the Holders.
| SECTION 7.06. |
Reports
by Trustee to Holders.
|
Within
60
days after each January 1, beginning with January 1, 2005, the
Trustee
shall, to the extent that any of the events described in Trust Indenture Act
§ 313(a) occurred within the previous twelve months, but not otherwise,
mail to each Holder a brief report dated as of such date that complies with
Trust Indenture Act § 313(a). The Trustee also shall comply with Trust
Indenture Act §§ 313(b), 313(c) and 313(d).
A
copy of
each report at the time of its mailing to Holders shall be mailed to the Issuer
and filed with the SEC and each securities exchange, if any, on which the Notes
are listed.
The
Issuer shall notify the Trustee if the Notes become listed on any securities
exchange or of any delisting thereof and the Trustee shall comply with Trust
Indenture Act § 313(d).
| SECTION 7.07. |
Compensation
and Indemnity.
|
The
Issuer shall pay to the Trustee from time to time such compensation as the
Issuer and the Trustee shall from time to time agree in writing for its services
hereunder. The Trustee’s compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuer shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances
(including reasonable fees and expenses of counsel) incurred or made by it
in
addition to the compensation for its services, except any such disbursements,
expenses and advances as may be attributable to the Trustee’s negligence, bad
faith or willful misconduct. Such expenses shall include the reasonable fees
and
expenses of the Trustee’s agents and counsel.
The
Issuer shall indemnify each of the Trustee or any predecessor Trustee and its
agents for, and hold them harmless against, any and all loss, damage, claims
including taxes (other than taxes based upon, measured by or determined by
the
income of the Trustee), liability or expense incurred by them except for such
actions to the extent caused by any negligence, bad faith or willful misconduct
on their part, arising out of or in connection with the acceptance or
administration of this trust including the reasonable costs and expenses of
defending themselves against or investigating any claim or liability in
connection with the exercise or performance of any of the Trustee’s rights,
powers or duties hereunder. The Trustee shall notify the Issuer promptly of
any
claim asserted against the Trustee or any of its agents for which it may seek
indemnity. The Issuer may, subject to the approval of the Trustee (which
approval shall not be unreasonably withheld), defend the claim and the Trustee
shall cooperate in the defense. The Trustee and its agents subject to the claim
may have separate counsel and the Issuer shall pay the reasonable fees and
expenses of such counsel; provided,
however,
that the
Issuer will not be required to pay such fees and expenses if, subject to the
approval of the Trustee (which approval shall not be unreasonably withheld),
it
assumes the Trustee’s defense and there is no conflict of interest between the
Issuer and the Trustee and its agents subject to the claim in connection with
such defense as reasonably determined by the Trustee. The Issuer need not pay
for any settlement made without its written consent. The Issuer 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 Issuer’s payment obligations in this Section 7.07, the Trustee shall
have a Lien prior to the Notes against all money or property held or collected
by the Trustee, in its capacity as Trustee, except money or property held in
trust to pay principal and interest on particular Notes.
When
the
Trustee incurs expenses or renders services after a Default specified in
Section 6.01(7) or 6.01(8) occurs, such expenses and the compensation
for
such services shall be paid to the extent allowed under any Bankruptcy
Law.
Notwithstanding
any other provision in this Indenture, the foregoing provisions of this
Section 7.07 shall survive the satisfaction and discharge of this Indenture
or the appointment of a successor Trustee.
| SECTION 7.08. |
Replacement
of Trustee.
|
The
Trustee may resign at any time by so notifying the Issuer in writing. The
Holders of a majority in principal amount of the outstanding Notes may remove
the Trustee by so notifying the Issuer and the Trustee and may appoint a
successor Trustee. The Issuer may remove the Trustee if:
(1) the
Trustee fails to comply with Section 7.10;
(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 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 Issuer shall notify each Holder of such event and shall
promptly appoint a successor Trustee. Within one year after the successor
Trustee takes office, the Holders of a majority in principal amount of the
Notes
may appoint a successor Trustee to replace the successor Trustee appointed
by
the Issuer.
A
successor Trustee shall deliver a written acceptance of its appointment to
the
retiring Trustee and to the Issuer. Immediately after that, the retiring Trustee
shall transfer, after payment of all sums then owing to the Trustee pursuant
to
Section 7.07, all property held by it as Trustee to the successor Trustee,
subject to the Lien provided in Section 7.07, 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
Holder.
If
a
successor Trustee does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Issuer 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 at the expense
of the Issuer.
If
the
Trustee fails to comply with Section 7.10, any Holder may petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
Notwithstanding
replacement of the Trustee pursuant to this Section 7.08, the Issuer’s
obligations under Section 7.07 shall continue for the benefit of the
retiring Trustee.
| SECTION 7.09. |
Successor
Trustee by Merger, Etc.
|
If
the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation,
the
resulting, surviving or transferee corporation without any further act shall,
if
such resulting, surviving or transferee corporation is otherwise eligible
hereunder, be the successor Trustee; provided
that
such corporation shall be otherwise qualified and eligible under this Article
Seven.
| SECTION 7.10. |
Eligibility;
Disqualification.
|
This
Indenture shall always have a Trustee who satisfies the requirement of Trust
Indenture Act §§ 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee shall have
a combined capital and surplus of at least $150,000,000 as set forth in its
most
recent published annual report of condition. The Trustee shall comply with
Trust
Indenture Act § 310(b); provided,
however,
that
there shall be excluded from the operation of Trust Indenture Act
§ 310(b)(1) any indenture or indentures under which other securities,
or
certificates of interest or participation in other securities, of the Issuer
are
outstanding, if the requirements for such exclusion set forth in Trust Indenture
Act § 310(b)(1) are met. The provisions of Trust Indenture Act § 310
shall apply to the Issuer and any other obligor of the Notes.
| SECTION 7.11. |
Preferential
Collection of Claims Against the Issuer.
|
The
Trustee, in its capacity as Trustee hereunder, shall comply with Trust Indenture
Act § 311(a), excluding any creditor relationship listed in Trust Indenture
Act § 311(b). A Trustee who has resigned or been removed shall be subject
to Trust Indenture Act § 311(a) to the extent indicated.
ARTICLE
EIGHT
DISCHARGE
OF INDENTURE;
DEFEASANCE
| SECTION 8.01. |
Termination
of the Issuer’s Obligations.
|
The
Issuer may terminate its obligations under the Notes and this Indenture and
the
obligations of the Subsidiary Guarantors under the Subsidiary Guarantees and
this Indenture and this Indenture shall cease to be of further effect, except
those obligations referred to in the penultimate paragraph of this
Section 8.01, if:
(1) either
(A) all
the
Notes theretofore authenticated and delivered (except lost, stolen or destroyed
Notes which have been replaced or paid and Notes for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Issuer and thereafter repaid to the Issuer or discharged from such trust) have
been delivered to the Trustee for cancellation; or
(B) all
Notes
not theretofore delivered to the Trustee for cancellation (1) have become
due and payable or (2) will become due and payable within one year,
or are
to be called for redemption within one year, under arrangements reasonably
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Issuer, and the Issuer has
irrevocably deposited or caused to be deposited with the Trustee funds in an
amount sufficient to pay and discharge the entire Indebtedness on the Notes
not
theretofore delivered to the Trustee for cancellation, for principal of,
premium, if any, and interest on the Notes to the date of maturity or
redemption, as the case may be, together with irrevocable instructions from
the
Issuer directing the Trustee to apply such funds to the payment thereof at
maturity or redemption, as the case may be;
(2) the
Issuer has paid all sums payable by them under this Indenture, and
(3) the
Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel stating that all conditions precedent under this Indenture relating
to
the satisfaction and discharge of this Indenture have been complied
with.
In
the
case of clause (B) of this Section 8.01, and subject to the next sentence
and notwithstanding the foregoing paragraph, the Issuer’s obligations in
Sections 2.05, 2.06, 2.07, 2.08, 4.01, 4.02, 4.03 (as to legal existence
of
the Issuer only), 7.07, 8.05 and 8.06 shall survive until the Notes are no
longer outstanding pursuant to the last paragraph of Section 2.08.
After the Notes are no longer outstanding, the Issuer’s obligations in
Sections 7.07, 8.05 and 8.06 shall survive.
After
such delivery or irrevocable deposit, the Trustee upon request shall acknowledge
in writing the discharge of the Issuer’s obligations under the Notes and this
Indenture except for those surviving obligations specified above.
| SECTION 8.02. |
Legal
Defeasance and Covenant Defeasance.
|
(a) The
Issuer may, at its option and at any time, elect to have either
paragraph (b) or (c) below be applied to all outstanding Notes upon
compliance with the conditions set forth in Section 8.03.
(b) Upon
the
Issuer’s exercise under Section 8.02(a) hereof of the option applicable to
this Section 8.02(b), the Issuer and the Subsidiary Guarantors shall,
subject to the satisfaction of the conditions set forth in Section 8.03,
be
deemed to have been discharged from their obligations with respect to all
outstanding Notes on the date the conditions set forth below are satisfied
(hereinafter, “Legal
Defeasance”).
For
this purpose, Legal Defeasance means that the Issuer and the Subsidiary
Guarantors shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes and Subsidiary Guarantees, which shall
thereafter be deemed to be “outstanding” only for the purposes of
Section 8.04 hereof and the other Sections of this Indenture
referred
to in (i) and (ii) below, and to have satisfied all its other obligations under
such Notes and this Indenture and the Subsidiary Guarantors shall be deemed
to
have satisfied all of their obligations under the Subsidiary Guarantees and
this
Indenture (and the Trustee, on demand of and at the expense of the Issuer,
shall
execute proper instruments acknowledging the same), except for the following
provisions which shall survive until otherwise terminated or discharged
hereunder:
(i) the
rights of Holders of outstanding Notes to receive, solely from the trust fund
described in Section 8.04, and as more fully set forth in such
Section 8.04, payments in respect of the principal of, premium, if any,
and
interest on such Notes when such payments are due;
(ii) the
Issuer’s obligations with respect to such Notes under Article Two and
Section 4.02 hereof;
(iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and
the
Issuer’s obligations in connection therewith; and
(iv) the
provisions of this Article Eight applicable to Legal
Defeasance.
Subject
to compliance with this Article Eight, the Issuer may exercise its option under
this Section 8.02(b) notwithstanding the prior exercise of its option
under
Section 8.02(c).
(c) Upon
the
Issuer’s exercise under paragraph (a) hereof of the option applicable to
this paragraph (c), the Issuer and the Subsidiary Guarantors shall,
subject
to the satisfaction of the conditions set forth in Section 8.03, be
released from their respective obligations under the covenants contained in
Sections 4.03 (other than with respect to the legal existence of the
Issuer), 4.04, 4.07 through 4.16 and clause (3) of Section 5.01(a)
with respect to the outstanding Notes on and after the date the conditions
set
forth in Section 8.03 are satisfied (hereinafter, “Covenant
Defeasance”),
and
the Notes shall thereafter be deemed not “outstanding” for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to
the
outstanding Notes, the Issuer and the Subsidiary Guarantors may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of
any
reference elsewhere herein to any such covenant or by reason of any reference
in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute an Event of Default under
Section 6.01, but, except as specified above, the remainder of this
Indenture and such Notes shall be unaffected thereby. In addition, upon the
Issuer’s exercise under paragraph (a) hereof of the option applicable to
this paragraph (c), subject to the satisfaction of the conditions set
forth
in Section 8.03, clauses (3), (4), (5) and (6) of Section 6.01
shall
not constitute Events of Default.
| SECTION 8.03. |
Conditions
to Legal Defeasance or Covenant Defeasance.
|
The
following shall be the conditions to the application of either
Section 8.02(b) or 8.02(c) hereof to the outstanding Notes:
(1) the
Issuer must irrevocably deposit with the Trustee, in trust, for the benefit
of
the Holders, U.S. Legal Tender, U.S. Government Obligations or a combination
thereof, in such amounts as will be sufficient (without reinvestment), in the
opinion of a nationally recognized firm of independent public accountants
selected by the Issuer, to pay the principal of and interest and premium, if
any, on the Notes on the stated date for payment or on the redemption date
Notes;
(2) in
the
case of Legal Defeasance, the Issuer shall have delivered to the Trustee an
Opinion of Counsel in the United States confirming that:
(a) the
Issuer has received from, or there has been published by the Internal Revenue
Service, a ruling, or
(b) since
the
date of this Indenture, there has been a change in the applicable U.S. federal
income tax law,
in
either
case to the effect that, and based thereon the Holders will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of such
Legal Defeasance and will be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if
such Legal Defeasance had not occurred;
(3) in
the
case of Covenant Defeasance, the Issuer shall have delivered to the Trustee
an
Opinion of Counsel in the United States reasonably acceptable to the Trustee
confirming that the Holders will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of such Covenant Defeasance and will
be
subject to U.S. 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;
(4) no
Default shall have occurred and be continuing on the date of such deposit (other
than a Default resulting from the borrowing of funds to be applied to such
deposit);
(5) the
Legal
Defeasance or Covenant Defeasance shall not result in a breach or violation
of,
or constitute a Default under this Indenture or a default under any other
material agreement or instrument to which the Issuer or any of its Subsidiaries
is a party or by which the Issuer or any of its Subsidiaries is bound (other
than any such Default or default resulting solely from the borrowing of funds
to
be applied to such deposit);
(6) the
Issuer shall have delivered to the Trustee an Officers’ Certificate stating that
the deposit was not made by it with the intent of preferring the Holders over
any other creditors of the Issuer or with the intent of defeating, hindering,
delaying or defrauding any other of its creditors; and
(7) the
Issuer shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that the conditions provided for in, in the
case of the Officers’ Certificate, clauses (1) through (6), as applicable, and,
in the case of the Opinion of Counsel, clauses (2), if applicable, and/or (3)
and (5) of this Section 8.03 have been complied with.
| SECTION 8.04. |
Application
of Trust Money.
|
The
Trustee or Paying Agent shall hold in trust U.S. Legal Tender and U.S.
Government Obligations deposited with it pursuant to this Article Eight, and
shall apply the deposited U.S. Legal Tender and the money from U.S. Government
Obligations in accordance with this Indenture to the payment of the principal
of
and the interest on the Notes. The Trustee shall be under no obligation to
invest said U.S. Legal Tender and U.S. Government Obligations, except as it
may
agree with the Issuer.
The
Issuer shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Legal Tender and U.S. Government
Obligations deposited pursuant to Section 8.03 or the principal and
interest received in respect thereof, other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding
Notes.
Anything
in this Article Eight to the contrary notwithstanding, the Trustee shall deliver
or pay to the Issuer from time to time upon the Issuer’s request any U.S. Legal
Tender and U.S. Government Obligations held by it as provided in
Section 8.03 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 that would then
be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
| SECTION 8.05. |
Repayment
to the Issuer.
|
The
Trustee and the Paying Agent shall pay to the Issuer upon request any money
held
by them for the payment of principal or interest that remains unclaimed for
two
years; provided,
however,
that
the Trustee or such Paying Agent, before being required to make any payment,
may
at the expense of the Issuer cause to be published once in a newspaper of
general circulation in the City of New York or mail to each Holder entitled
to
such money notice that such money remains unclaimed and that after a date
specified therein which shall be at least 30 days from the date of such
publication or mailing any unclaimed balance of such money then remaining will
be repaid to the Issuer. After payment to the Issuer, Holders entitled to such
money must look to the Issuer for payment as general creditors unless an
applicable law designates another Person.
| SECTION 8.06. |
Reinstatement.
|
If
the
Trustee or Paying Agent is unable to apply any U.S. Legal Tender and U.S.
Government Obligations in accordance with this Article Eight 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, or if the funds deposited with the Trustee to effect Covenant
Defeasance are insufficient to pay the principal of, and interest on, the Notes
when due, the Issuer’s obligations under this Indenture, and the Notes and the
Subsidiary Guarantees shall be revived and reinstated as though no deposit
had
occurred pursuant to this Article Eight until such time as the Trustee or Paying
Agent is permitted to apply all such U.S. Legal Tender and U.S. Government
Obligations in accordance with this Article Eight; provided
that if
the Issuer has made any payment of interest on, or principal of, any Notes
because of the reinstatement of its obligations, the Issuer shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the
U.S.
Legal Tender and U.S. Government Obligations held by the Trustee or Paying
Agent.
ARTICLE
NINE
AMENDMENTS,
SUPPLEMENTS AND WAIVERS
| SECTION 9.01. |
Without
Consent of Holders.
|
(a) The
Issuer, the Subsidiary Guarantors and the Trustee, together, may amend or
supplement this Indenture, the Notes or the Subsidiary Guarantees without notice
to or consent of any Holder:
(1) to
cure
any ambiguity, defect or inconsistency;
(2) to
provide for uncertificated Notes in addition to or in place of certificated
Notes;
(3) to
provide for the assumption of the Issuer’s or a Subsidiary Guarantor’s
obligations to the Holders of the Notes in the case of a merger, consolidation
or sale of all or substantially all of the assets, in accordance with Article
Five;
(4) to
release any Subsidiary Guarantor from any of its obligations under its
Subsidiary Guarantee or this Indenture (to the extent permitted by this
Indenture);
(5) to
make
any change that would not materially adversely affect the rights of any Holder;
or
(6) to
comply
with requirements of the SEC in order to effect or maintain the qualification
of
this Indenture under the Trust Indenture Act;
provided,
however,
that
the Issuer has delivered to the Trustee an Opinion of Counsel and an Officers’
Certificate, each stating that such amendment or supplement complies with the
provisions of this Section 9.01.
| SECTION 9.02. |
With
Consent of Holders.
|
(a) Subject
to Section 6.07, the Issuer, the Subsidiary Guarantors and the Trustee,
together, with the written consent of the Holder or Holders of a majority in
aggregate principal amount of the outstanding Notes may amend or supplement
this
Indenture, the Notes or the Subsidiary Guarantees, without notice to any other
Holders. Subject to Sections 6.07, the Holder or Holders of a majority
in
aggregate principal amount of the outstanding Notes may waive compliance with
any provision of this Indenture, the Notes or the Subsidiary Guarantees without
notice to any other Holders.
(b) Notwithstanding
Section 9.02(a), without the consent of each Holder affected, no amendment
or waiver may:
(1) change
the Stated Maturity of the principal of, or any installment of interest on,
any
Note;
(2) reduce
the principal amount of, or premium, if any, or interest on, any
Note;
(3) change
the place of payment of principal of, or premium, if any, or interest on, any
Note;
(4) impair
the right to institute suit for the enforcement of any payment on or after
the
Stated Maturity (or, in the case of a redemption, on or after the Redemption
Date) of any Note;
(5) reduce
the above-stated percentages of outstanding Notes the consent of whose Holders
is necessary to modify or amend this Indenture;
(6) waive
a
default in the payment of principal of, premium, if any, or interest on the
Notes;
(7) voluntarily
release a Subsidiary Guarantor of the Notes, except as permitted by this
Indenture; or
(8) reduce
the percentage or aggregate principal amount of outstanding Notes the consent
of
whose Holders is necessary for waiver of compliance with Sections 6.02
and
6.04.
(c) It
shall
not be necessary for the consent of the Holders under this Section to
approve the particular form of any proposed amendment, supplement or waiver
but
it shall be sufficient if such consent approves the substance
thereof.
(d) A
consent
to any amendment, supplement or waiver under this Indenture by any Holder given
in connection with an exchange (in the case of an exchange offer) or a tender
(in the case of a tender offer) of such Holder’s Notes will not be rendered
invalid by such tender or exchange.
(e) After
an
amendment, supplement or waiver under this Section 9.02 becomes effective,
the Issuer shall mail to the Holders affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure of the Issuer to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such amendment, supplement or waiver.
| SECTION 9.03. |
Compliance
with the Trust Indenture Act.
|
From
the
date on which this Indenture is qualified under the Trust Indenture Act, every
amendment, waiver or supplement of this Indenture, the Notes or the Subsidiary
Guarantees shall comply with the Trust Indenture Act as then in
effect.
| SECTION 9.04. |
Revocation
and Effect of Consents.
|
Until
an
amendment, waiver or supplement becomes effective, a consent to it by a Holder
is a continuing consent by the Holder and every subsequent Holder of a Note
or
portion of a Note that evidences the same debt as the consenting Holder’s Note,
even if notation of the consent is not made on any Note. However, any such
Holder or subsequent Holder may revoke the consent as to his Note or portion
of
his Note by notice to the Trustee or the Issuer received before the date on
which the Trustee receives an Officers’ Certificate certifying that the Holders
of the requisite principal amount of Notes have consented (and not theretofore
revoked such consent) to the amendment, supplement or waiver.
The
Issuer may, but shall not be obligated to, fix a record date for the purpose
of
determining the Holders entitled to consent to any amendment, supplement or
waiver, which record date shall be at least 30 days prior to the first
solicitation of such consent. If a record date is fixed, then notwithstanding
the last sentence of the immediately preceding paragraph, those Persons who
were
Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled 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. The
Issuer shall inform the Trustee in writing of the fixed record date if
applicable.
After
an
amendment, supplement or waiver becomes effective, it shall bind every Holder,
unless it makes a change described in any of clauses (1) through (8)
of
Section 9.02(b), in which case, the amendment, supplement or waiver
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; provided,
however,
that
any such waiver shall not impair or affect the right of any Holder to receive
payment of principal of, and interest on, a Note, on or after the respective
due
dates therefor, or to bring suit for the enforcement of any such payment on
or
after such respective dates without the consent of such Holder.
| SECTION 9.05. |
Notation
on or Exchange of Notes.
|
If
an
amendment, supplement or waiver changes the terms of a Note, the Issuer may
require the Holder of the Note to deliver it to the Trustee. The Issuer shall
provide the Trustee with an appropriate notation on the Note about the changed
terms and cause the Trustee to return it to the Holder at the Issuer’s expense.
Alternatively, if the Issuer or the Trustee so determines, the Issuer 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 amendment,
supplement or waiver.
| SECTION 9.06. |
Trustee
To Sign Amendments, Etc.
|
The
Trustee shall execute any amendment, supplement or waiver authorized pursuant
to
this Article Nine; provided,
however,
that
the Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver which affects the Trustee’s own rights, duties or
immunities under this Indenture. The Trustee shall be entitled to receive,
and
shall be fully protected in relying upon, an Opinion of Counsel and an Officers’
Certificate each stating that the execution of any amendment, supplement or
waiver authorized pursuant to this Article Nine is authorized or permitted
by
this Indenture and constitutes legal, valid and binding obligations of the
Issuer enforceable in accordance with its terms. Such Opinion of Counsel shall
be at the expense of the Issuer.
ARTICLE
TEN
SUBSIDIARY
GUARANTEE
| SECTION 10.01. |
Guarantee.
|
Subject
to this Article 10, each of the Subsidiary Guarantors hereby, jointly
and
severally, unconditionally guarantees to each Holder of a Note authenticated
and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes
or
the obligations of the Issuer hereunder or thereunder, that: (a) the principal
of and interest on the Notes will be promptly paid in full when due, whether
at
maturity, by acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful, and all other
obligations of the Issuer to the Holders or the Trustee hereunder or thereunder
will be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that same will be
promptly paid in full when due or performed in accordance with the terms of
the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so
guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly
and
severally obligated to pay the same immediately. Each Subsidiary Guarantor
agrees that this is a guarantee of payment and not a guarantee of
collection.
The
Subsidiary Guarantors hereby agree that their obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of
the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Issuer, any action
to enforce the same or any other circumstance which might otherwise constitute
a
legal or equitable discharge or defense of a guarantor. Each Subsidiary
Guarantor hereby waives, to the extent permitted by applicable law, diligence,
presentment, demand of payment, filing of claims with a court in the event
of
insolvency or bankruptcy of the Issuer, any right to require a proceeding first
against the Issuer, protest, notice and all demands whatsoever and covenant
that
this Note Guarantee shall not be discharged except by complete performance
of
the obligations contained in the Notes and this Indenture.
If
any
Holder or the Trustee is required by any court or otherwise to return to the
Issuer, the Subsidiary Guarantors or any custodian, trustee, liquidator or
other
similar official acting in relation to either the Issuer or the Subsidiary
Guarantors, any amount paid by either to the Trustee or such Holder, this
Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated
in full force and effect.
Each
Subsidiary Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors,
on the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated as provided
in
Article Six hereof for the purposes of this Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any declaration of acceleration of such obligations as provided in
Article Six hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Subsidiary Guarantors for the purpose
of
this Subsidiary Guarantee.
| SECTION 10.02. |
Limitation
on Subsidiary Guarantor Liability.
|
Each
Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Subsidiary
Guarantee of such Subsidiary Guarantor not constitute a fraudulent transfer
or
conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law
to
the extent applicable to any Subsidiary Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders and the Subsidiary Guarantors hereby
irrevocably agree that the obligations of such Subsidiary Guarantor will, after
giving effect to such maximum amount and all other contingent and fixed
liabilities of such Subsidiary Guarantor that are relevant under such laws,
and
after giving effect to any collections from, rights to receive contribution
from
or payments made by or on behalf of any other Subsidiary Guarantor in respect
of
the obligations of such other Subsidiary Guarantor under this Article Ten,
result in the obligations of such Subsidiary Guarantor under its Subsidiary
Guarantee not constituting a fraudulent transfer or conveyance. Each Subsidiary
Guarantor that makes a payment for distribution under its Subsidiary Guarantee
is entitled to a contribution from each other Subsidiary Guarantor in a
pro
rata
amount
based on the adjusted net assets of each Subsidiary Guarantor.
| SECTION 10.03. |
Execution
and Delivery of Subsidiary Guarantee.
|
To
evidence its Subsidiary Guarantee set forth in Section 10.01, each
Subsidiary Guarantor hereby agrees that a notation of such Subsidiary Guarantee
substantially in the form included in Exhibit E
shall be
endorsed by an Officer of such Subsidiary Guarantor on each Note authenticated
and delivered by the Trustee and that this Indenture shall be executed on behalf
of such Subsidiary Guarantor by an Officer.
Each
Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee set forth
in
Section 10.01 shall remain in full force and effect notwithstanding
any
failure to endorse on each Note a notation of such Subsidiary
Guarantee.
If
an
Officer whose signature is on this Indenture or on the Subsidiary Guarantee
no
longer holds that office at the time the Trustee authenticates the Note on
which
a Subsidiary Guarantee is endorsed, the Subsidiary Guarantee shall be valid
nevertheless.
The
delivery of any Note by the Trustee, after the authentication thereof hereunder,
shall constitute due delivery of the Subsidiary Guarantee set forth in this
Indenture on behalf of the Subsidiary Guarantors.
| SECTION 10.04. |
Release
of a Subsidiary Guarantor.
|
A
Subsidiary Guarantor shall be released from its obligations under its Note
Guarantee and its obligations under this Indenture and the Registration Rights
Agreement in the event of:
(1) any
sale,
exchange or transfer, to any Person not an Affiliate of the Issuer of all of
Capital Stock held by the Issuer and its Restricted Subsidiaries in, or all
or
substantially all the assets of, such Subsidiary Guarantor (which sale, exchange
or transfer is not prohibited by this Indenture);
(2) the
release or discharge of the Guarantee which resulted in the creation of such
Subsidiary Guarantee, except a discharge or release by or as a result of payment
under such Guarantee; or
(3) the
designation of such Subsidiary Guarantor as an Unrestricted Subsidiary in
accordance with the provisions of this Indenture.
The
Trustee shall execute an appropriate instrument prepared by the Issuer
evidencing the release of a Subsidiary Guarantor from its obligations under
its
Subsidiary Guarantee and this Indenture upon receipt of a request by the Issuer
or such Subsidiary Guarantor accompanied by an Officers’ Certificate and an
Opinion of Counsel certifying as to the compliance with this Section 10.04;
provided,
however,
that the
legal counsel delivering such Opinion of Counsel may rely as to matters of
fact
on one or more Officers’ Certificates of the Issuer.
Nothing
contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Subsidiary Guarantor with or into the Issuer (in
which case such Subsidiary Guarantor shall no longer be a Subsidiary Guarantor)
or another Subsidiary Guarantor or shall prevent any sale or conveyance of
the
property of a Subsidiary Guarantor as an entirety or substantially as an
entirety to the Issuer or another Subsidiary Guarantor.
ARTICLE
ELEVEN
MISCELLANEOUS
| SECTION 11.01. |
Trust
Indenture Act Controls.
|
If
any
provision of this Indenture limits, qualifies, or conflicts with another
provision which is required or deemed to be included in this Indenture by the
Trust Indenture Act, such required or deemed provision shall
control.
| SECTION 11.02. |
Notices.
|
Any
notices or other communications required or permitted hereunder shall be in
writing, and shall be sufficiently given if made by hand delivery, by telex,
by
nationally recognized overnight courier service, by telecopier or registered
or
certified mail, postage prepaid, return receipt requested, addressed as
follows:
if
to the
Issuer or a Subsidiary Guarantor:
c/o
Omega
Healthcare Investors, Inc.
9690
Deereco Road,
Suite 100
Timonium,
Maryland
21093
Attention:
Robert O.
Stephenson
Telephone: (410)
427-1700
Facsimile: (410)
427-8800
with
a
copy to:
Powell
Goldstein LLP
One
Atlantic Center
Fourteenth
Floor
1201
W.
Peachtree Street, NW
Atlanta,
Georgia 30309-3488
Attention: Richard
H. Miller
Telephone: (404)
572-6600
Facsimile: (404)
572-6999
if
to the
Trustee:
1360
Peachtree Street, N.E.
Suite
1105, EX-GA-ATPT
Atlanta,
Georgia 30309
Attention:
Corporate Trust Department
Telephone: (404)
965-7222
Facsimile: (404)
365-7946
Each
of
the Issuer and the Trustee by written notice to each other such Person may
designate additional or different addresses for notices to such Person. Any
notice or communication to the Issuer and the Trustee, shall be deemed to have
been given or made as of the date so delivered if personally delivered; when
replied to; when receipt is acknowledged, if telecopied; five (5) calendar
days
after mailing if sent by registered or certified mail, postage prepaid (except
that a notice of change of address shall not be deemed to have been given until
actually received by the addressee); and next Business Day if by nationally
recognized overnight courier service.
Any
notice or communication mailed to a Holder shall be mailed to him by first
class
mail or other equivalent means at his address as it appears on the registration
books of the Registrar and shall be sufficiently given to him if so mailed
within the time prescribed.
Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
| SECTION 11.03. |
Communications
by Holders with Other Holders.
|
Holders
may communicate pursuant to Trust Indenture Act § 312(b) with other Holders
with respect to their rights under this Indenture, the Notes or the Subsidiary
Guarantees. The Issuer, the Trustee, the Registrar and any other Person shall
have the protection of Trust Indenture Act § 312(c).
| SECTION 11.04. |
Certificate
and Opinion as to Conditions Precedent.
|
Upon
any
request or application by the Issuer to the Trustee to take any action under
this Indenture, the Issuer shall furnish to the Trustee at the request of the
Trustee:
(1) an
Officers’ Certificate, in form and substance satisfactory to the Trustee,
stating that, in the opinion of the signers, all conditions precedent to be
performed or effected by the Issuer, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
| SECTION 11.05. |
Statements
Required in Certificate or Opinion.
|
Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture, other than the Officers’ Certificate required by
Section 4.06, shall include:
(1) a
statement that the Person making such certificate or opinion has read such
covenant or condition;
(2) a
brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;
(3) a
statement that, in the opinion of such Person, he has made such examination
or
investigation as is necessary to enable him to express an informed opinion
as to
whether or not such covenant or condition has been complied with or satisfied;
and
(4) a
statement as to whether or not, in the opinion of each such Person, such
condition or covenant has been complied with; provided,
however,
that
with respect to matters of fact, an Opinion of Counsel may rely on an Officers’
Certificate or certificates of public officials.
| SECTION 11.06. |
Rules
by Paying Agent or Registrar.
|
The
Paying Agent or Registrar may make reasonable rules and set reasonable
requirements for their functions.
| SECTION 11.07. |
Legal
Holidays.
|
If
a
payment date is not a Business Day, payment may be made on the next succeeding
day that is a Business Day.
| SECTION 11.08. |
Governing
Law.
|
This
Indenture, the Notes and the Subsidiary Guarantees will be governed by and
construed in accordance with the laws of the State of New
York.
| SECTION 11.09. |
No
Adverse Interpretation of Other Agreements.
|
This
Indenture may not be used to interpret another indenture, loan or debt agreement
of any of the Issuer or any of its Subsidiaries. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
| SECTION 11.10. |
No
Recourse Against Others.
|
No
director, officer, employee, incorporator, stockholder, member or manager of
the
Issuer or any Subsidiary Guarantor shall have any liability for any obligations
of the Issuer under the Notes or this Indenture or of any Subsidiary Guarantor
under its Subsidiary Guarantee or the Indenture or for any claim based on,
in
respect of, or by reason of, such obligations or their creation. Each Holder
of
Notes by accepting a Note waives and releases all such liability. Such waiver
and release are part of the consideration for issuance of the
Notes.
| SECTION 11.11. |
Successors.
|
All
agreements of the Issuer and the Subsidiary Guarantors in this Indenture, the
Notes and the Note Guarantees shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its
successor.
| SECTION 11.12. |
Duplicate
Originals.
|
All
parties may sign any number of copies of this Indenture. Each signed copy or
counterpart shall be an original, but all of them together shall represent
the
same agreement.
| SECTION 11.13. |
Severability.
|
To
the
extent permitted by applicable law, in case any one or more of the provisions
in
this Indenture, in the Notes or in the Subsidiary Guarantees shall be held
invalid, illegal or unenforceable, in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and
of
the remaining provisions shall not in any way be affected or impaired thereby,
it being intended that all of the provisions hereof shall be enforceable to
the
full extent permitted by law.
SIGNATURES
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed all as of the date first written above.
OMEGA
HEALTHCARE INVESTORS, INC.,
as
Issuer
By:/s/
Robert O. Stephenson
Name: Robert
O.
Stephenson
Title: Chief
Financial Officer
BAYSIDE
ALABAMA HEALTHCARE SECOND, INC.
BAYSIDE
ARIZONA HEALTHCARE ASSOCIATES, INC.
BAYSIDE
ARIZONA HEALTHCARE SECOND, INC.
BAYSIDE
COLORADO HEALTHCARE ASSOCIATES, INC.
BAYSIDE
COLORADO HEALTHCARE SECOND, INC.
OHI
(CONNECTICUT), INC.
BAYSIDE
STREET II, INC.
OHI
ASSET
(CA), LLC
OHI
ASSET
(FL), LLC
OHI
ASSET
(ID), LLC
OHI
ASSET
(IN), LLC
OHI
ASSET
(LA), LLC
as
Subsidiary Guarantors
By:/s/
Robert O. Stephenson
Name: Robert
O.
Stephenson
Title: Chief
Financial Officer and
Treasurer
OHI
ASSET
(MI/NC), LLC
OHI
ASSET
(MO), LLC
OHI
ASSET
(OH), LLC
OHI
ASSET
(PA), LLC
OHI
ASSET
(TX), LLC
OHI
ASSET
II (CA), LLC
OHI
ASSET, LLC
OMEGA
ACQUISITION FACILITY I, LLC
OHI
(FLORIDA), INC.
OHI
SUNSHINE, INC.
LONG
TERM
CARE ASSOCIATES - ILLINOIS, INC.
OHI
(ILLINOIS), INC.
SKILLED
NURSING - HERRIN, INC.
SKILLED
NURSING - PARIS, INC.
BAYSIDE
INDIANA HEALTHCARE ASSOCIATES, INC.
LONG
TERM
CARE ASSOCIATES - INDIANA, INC.
OHI
(INDIANA), INC.
SKILLED
NURSING - GASTON, INC.
OHI
(IOWA), INC.
OHI
(KANSAS), INC.
OMEGA
(KANSAS), INC.
NRS
VENTURES, LLC
OS
LEASING COMPANY
STERLING
ACQUISITION CORP.
STERLING
ACQUISITION CORP. II
ARIZONA
LESSOR - INFINIA, INC.
BAYSIDE
STREET, INC.
COLORADO
LESSOR - CONIFER, INC.
DELTA
INVESTORS I, LLC
DELTA
INVESTORS II, LLC
FLORIDA
LESSOR - CRYSTAL SPRINGS, INC.
as
Subsidiary Guarantors
By:/s/
Robert O. Stephenson
Name: Robert
O.
Stephenson
Title: Chief
Financial Officer and
Treasurer
FLORIDA
LESSOR - EMERALD, INC.
FLORIDA
LESSOR - LAKELAND, INC.
FLORIDA
LESSOR - MEADOWVIEW, INC.
FLORIDA
LESSOR - WEST PALM BEACH AND SOUTHPOINT, INC.
GEORGIA
LESSOR - BONTERRA/PARKVIEW, INC.
INDIANA
LESSOR - JEFFERSONVILLE, INC.
INDIANA
LESSOR - WELLINGTON MANOR, INC.
JEFFERSON
CLARK, INC.
OHI
OF
KENTUCKY, INC.
OHI
OF
TEXAS, INC.
OMEGA
TRS
I, INC.
TEXAS
LESSOR - STONEGATE GP, INC.
TEXAS
LESSOR - STONEGATE LIMITED, INC.
TEXAS
LESSOR - STONEGATE, L.P.
TEXAS
LESSOR - TREEMONT, INC.
WASHINGTON
LESSOR - SILVERDALE, INC.
OHIMA,
INC.
LONG
TERM
CARE - MICHIGAN, INC.
LONG
TERM
CARE - NORTH CAROLINA, INC.
SKILLED
NURSING - HICKSVILLE, INC.
CENTER
HEALTHCARE ASSOCIATES, INC.
CHERRY
STREET - SKILLED NURSING, INC.
as
Subsidiary Guarantors
By:/s/
Robert O. Stephenson
Name: Robert
O.
Stephenson
Title: Chief
Financial Officer and
Treasurer
DALLAS
SKILLED NURSING, INC.
HERITAGE
TEXARKANA HEALTHCARE ASSOCIATES, INC.
LAKE
PARK
SKILLED NURSING, INC.
LONG
TERM
CARE ASSOCIATES - TEXAS, INC.
PARKVIEW
- SKILLED NURSING, INC.
PINE
TEXARKANA HEALTHCARE ASSOCIATES, INC.
REUNION
TEXARKANA HEALTHCARE ASSOCIATES, INC.
SAN
AUGUSTINE HEALTHCARE ASSOCIATES, INC.
SOUTH
ATHENS HEALTHCARE ASSOCIATES, INC.
WAXAHACHIE
HEALTHCARE ASSOCIATES, INC.
WEST
ATHENS HEALTHCARE ASSOCIATES, INC.
OHI
ASSET
II (TX), LLC
OHI
ASSET
(OH) LENDER, LLC
OHI
ASSET
(OH) NEW PHILADELPHIA, LLC
OHI
ASSET
(PA) TRUST
BALDWIN
HEALTH CENTER, INC.
CANTON
HEALTH CARE LAND, INC.
DICON
HEALTH CARE CENTER, INC.
HANOVER
HOUSE, INC.
HOUSE
OF
HANOVER, LTD.
HUTTON
I
LAND, INC.
HUTTON
II
LAND, INC.
HUTTON
III LAND, INC.
as
Subsidiary Guarantors
By:/s/
Robert O. Stephenson
Name: Robert
O.
Stephenson
Title: Chief
Financial Officer and
Treasurer
LEATHERMAN
90-1, INC.
LEATHERMAN
PARTNERSHIP 89-1, IN.C
LEATHERMAN
PARTNERSHIP 89-2, INC.
MERIDIAN
ARMS LAND, INC.
OHI
ASSET
II (PA) TRUST
OHI
ASSET
III (PA) TRUST
ORANGE
VILLAGE CARE CENTER, INC.
PAVILLION
NORTH, LLP
PAVILLION
NORTH PARTNES, INC.
PAVILLION
NURSING CENTER NORTH, INC.
ST.
MARY’S PROPERTIES, INC.
WILCARE,
LLC
as
Subsidiary Guarantors
By:/s/
Robert O. Stephenson
Name: Robert
O.
Stephenson
Title: Chief
Financial Officer and
Treasurer
OHI
ASSET
(CT) LENDER, LLC
OHI
ASSET
II (OH), LLC
COLONIAL
GARDENS, LLC
COPLEY
HEALTH CENTER, INC.
THE
SUBURBAN PAVILION, INC.
as
Subsidiary Guarantors
By:/s/
Robert O. Stephenson
Name: Robert
O.
Stephenson
Title: Chief
Financial Officer and
Treasurer
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
By:/s/
Teresa L. Davis
Name:
Teresa L. Davis
Title:
EXHIBIT A
[Insert
the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert
the Private Placement Legend, if applicable pursuant to the provisions of the
Indenture]
OMEGA
HEALTHCARE INVESTORS, INC.
7%
Senior
Notes due 2016
CUSIP
No.
No.
[ ]$[
]
OMEGA
HEALTHCARE INVESTORS, INC., a Maryland corporation (the “Issuer”),
for
value received promise to pay to Cede & Co., or its registered assigns, the
principal sum of
[ ]
DOLLARS [or such other amount as is provided in a schedule attached
hereto]1 This
language should be included only if the Note is issued in global
form.
on
January 15, 2016.
Interest
Payment Dates: January 15 and July 15, commencing [ ].
Record
Dates: January 1 and July 1.
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.
IN
WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by
facsimile by its duly authorized officer.
Dated:
OMEGA
HEALTHCARE INVESTORS, INC., as Issuer
By:
Name:
Title:
[FORM
OF]
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This
is
one of the 7% Senior Notes due 2016 described in the within-mentioned
Indenture.
Dated:
U.S.
Bank
National Association,
as
Trustee
By:
Authorized
Signatory
(Reverse
of Note)
7%
Senior
Notes due 2016
Capitalized
terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
SECTION 1.
Interest.
Omega
Healthcare Investors, Inc., a Maryland corporation (the “Issuer”)
promises to pay interest on the principal amount of this Note at 7% per annum
from [ ], [ ] until maturity. The Issuer will pay interest semi-annually on
January 15 and July 15 of each year, or if any such day is not a Business Day,
on the next succeeding Business Day (each an “Interest
Payment Date”),
commencing July 15, 2006. 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
[ ],
2005. The Issuer shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
from time to time on demand to the extent lawful at the interest rate applicable
to the Notes; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand
at
the same rate to the extent lawful. Interest will be computed on the basis
of a
360-day year of twelve 30-day months.
SECTION 2.
Method
of Payment.
The
Issuer will pay interest on the Notes to the Persons who are registered Holders
of Notes at the close of business on the January 1 or July 1 next preceding
the
Interest Payment Date, even if such Notes are canceled after such record date
and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The
Notes
will be issued in denominations of $1,000 and integral multiples thereof. The
Issuer shall pay principal, premium, if any, and interest on the Notes 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 (“U.S.
Legal Tender”).
Principal, premium, if any, and interest on the Notes will be payable at the
office or agency of the Issuer maintained for such purpose except that, at
the
option of the Issuer, the payment of interest may be made by check mailed to
the
Holders of the Notes at their respective addresses set forth in the register
of
Holders of Notes. Until otherwise designated by the Issuer, the Issuer’s office
or agency in New York will be the office of the Trustee maintained for such
purpose.
SECTION 3.
Paying
Agent and Registrar.
Initially, U.S. Bank National Association, the Trustee under the Indenture,
will
act as Paying Agent and Registrar. The Issuer may change any Paying Agent or
Registrar without notice to any Holder. Except as provided in the Indenture,
the
Issuer or any of their Subsidiaries may act in any such capacity.
SECTION 4.
Indenture.
The
Issuer issued the Notes under an Indenture dated as of December 30, 2005
(“Indenture”)
by and
among the Issuer, the Subsidiary Guarantors and the Trustee. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code §§ 77aaa-77bbbb) (the “Trust
Indenture Act”).
The
Notes are subject to all such terms, and Holders are referred to the Indenture
and the Trust Indenture Act for a statement of such terms.
SECTION 5.
Optional
Redemption.
Except
as
set forth in Section 6 hereof, the Notes will not be redeemable at the
Issuer’s option prior to January 15, 2011. The Notes will be redeemable at the
option of the Issuer, in whole or in part, at any time, and from time to time,
on and after January 15, 2011, upon not less than 30 days’ nor more than
60 days’ notice, at the following redemption prices (expressed as
percentages of the principal amount thereof) if redeemed during the 12-month
period commencing January 15 of the years indicated below, in each case together
with accrued and unpaid interest thereon to the redemption date:
|
Year
|
Percentage
|
|
2011
|
103.500%
|
|
2012
|
102.333%
|
|
2013
|
101.167%
|
|
2014
and thereafter
|
100.000%
|
SECTION 6.
Optional
Redemption With Proceeds From Equity Offerings.
At any
time, or from time to time, on or prior to January 15, 2009, the Issuer may,
at
its option, use the Net Cash Proceeds of one or more Equity Offerings to redeem
up to 35% of the principal amount of the Notes issued under the Indenture at
a
redemption price of 107% of the principal amount thereof plus accrued and unpaid
interest thereon, if any, to the date of redemption; provided,
however,
that:
(1) at
least
65% of the principal amount of Notes issued under the Indenture remains
outstanding immediately after such redemption; and
(2) the
Issuer makes such redemption not more than 90 days after the consummation
of any such Equity Offering.
SECTION 7.
Notice
of Redemption.
Notice
of redemption will be mailed by first class mail at least 30 days but not more
than 60 days before the redemption date to each Holder of Notes to be redeemed
at its registered address. Notes in denominations larger than $1,000 may be
redeemed in part. If any Note is to be redeemed in part only, the notice of
redemption that relates to such Note shall state the portion of the principal
amount thereof to be redeemed. A new Note in principal amount equal to the
unredeemed portion thereof will be issued in the name of the Holder thereof
upon
cancellation of the original Note. On and after the redemption date interest
ceases to accrue on Notes or portions thereof called for
redemption.
SECTION 8.
Mandatory
Redemption.
For
the
avoidance of doubt, an offer to purchase pursuant to Section 9 hereof
shall
not be deemed a redemption. The Issuer shall not be required to make mandatory
redemption payments with respect to the Notes.
SECTION 9.
Repurchase
at Option of Holder.
Upon
the
occurrence of a Change of Control, and subject to certain conditions set forth
in the Indenture, the Issuer will be required to offer to purchase all of the
outstanding Notes at a purchase price equal to 101% of the principal amount
thereof, plus accrued and unpaid interest, if any, thereon to the date of
repurchase.
The
Issuer is, subject to certain conditions and exceptions, obligated to make
an
offer to purchase Notes at 100% of their principal amount, plus accrued and
unpaid interest, if any, thereon to the date of repurchase, with certain net
cash proceeds of certain sales or other dispositions of assets in accordance
with the Indenture.
SECTION 10.
Denominations,
Transfer, Exchange.
The
Notes are in registered form without coupons in denominations of $1,000 and
integral multiples of $1,000. The transfer of Notes may be registered and Notes
may be exchanged as provided in the Indenture. The Registrar and the Trustee
may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Issuer may require a Holder to pay any taxes and
fees
required by law or permitted by the Indenture. The Issuer and the Registrar
are
not required to transfer or exchange any Note selected for redemption. Also,
the
Issuer and the Registrar are not required to transfer or exchange any Notes
for
a period of 15 days before a selection of Notes to be redeemed.
SECTION 11.
Persons
Deemed Owners.
The
registered Holder of a Note may be treated as its owner for all
purposes.
SECTION 12.
Amendment,
Supplement and Waiver.
Subject
to certain exceptions, the Indenture and the Notes may be amended or
supplemented with the written consent of the Holders of at least a majority
in
aggregate principal amount of the Notes then outstanding, and any existing
Default or compliance with any provision may be waived with the consent of
the
Holders of a majority in aggregate principal amount of the Notes then
outstanding. Without notice to or consent of any Holder, the parties thereto
may
amend or supplement the Indenture and the Notes to, among other things, cure
any
ambiguity, defect or inconsistency in the Indenture, provide for uncertificated
Notes in addition to certificated Notes, comply with any requirements of the
SEC
in connection with the qualification of the Indenture under the Trust Indenture
Act, or make any change that does not materially adversely affect the rights
of
any Holder of a Note.
SECTION 13.
Defaults
and Remedies.
If a
Default occurs and is continuing, the Trustee or the Holders of at least 25%
in
principal amount of the then outstanding Notes generally may declare all the
Notes to be due and payable immediately. Notwithstanding the foregoing, in
the
case of a Default arising from certain events of bankruptcy or insolvency as
set
forth in the Indenture, with respect to the Issuer, all outstanding Notes will
become due and payable without further action or notice. Holders of the Notes
may not enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount of
the
then outstanding Notes may direct the Trustee in its exercise of any trust
or
power. The Trustee may withhold from Holders of the Notes notice of any
continuing Default if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the Notes
then outstanding by notice to the Trustee may on behalf of the Holders of all
of
the Notes waive any existing Default and its consequences under the Indenture
except a continuing Default in the payment of interest on, or the principal
of,
or the premium on, the Notes.
SECTION 14.
Restrictive
Covenants.
The
Indenture contains certain covenants that, among other things, limit the ability
of the Issuer and its Restricted Subsidiaries to make restricted payments,
to
incur indebtedness, to create liens, to sell assets, to permit restrictions
on
dividends and other payments by Restricted Subsidiaries of the Issuer, to
consolidate, merge or sell all or substantially all of its assets or to engage
in transactions with affiliates. The limitations are subject to a number of
important qualifications and exceptions. The Issuer must annually report to
the
Trustee on compliance with such limitations and other provisions in the
Indenture.
SECTION 15.
No
Recourse Against Others.
No
director, officer, employee, incorporator, stockholder, member or manager of
the
Issuer or any Subsidiary Guarantor shall have any liability for any obligations
of the Issuer under the Notes or the Indenture, or of any Subsidiary Guarantor
under its Subsidiary Guarantee or the Indenture or for any claim based on,
in
respect of, or by reason of, such obligations or their creation. Each Holder
of
Notes by accepting a Note waives and releases all such liability. The waiver
and
release are part of the consideration for issuance of the Notes.
SECTION 16.
Subsidiary
Guarantees.
This
Note will be entitled to the benefits of certain Subsidiary Guarantees made
for
the benefit of the Holders. Reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and
obligations thereunder of the Subsidiary Guarantors, the Trustee and the
Holders.
SECTION 17.
Trustee
Dealings with the Issuer.
Subject
to certain terms, the Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Notes and may otherwise
deal
with the Issuer, their Subsidiaries or their respective Affiliates as if it
were
not the Trustee.
SECTION 18.
Authentication.
This
Note shall not be valid until authenticated by the manual signature of the
Trustee or an authenticating agent.
SECTION 19.
Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee,
such
as: TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT
TEN
(= joint tenants with right of survivorship and not as tenants in common),
CUST
(= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
SECTION 20.
Additional
Rights of Holders of Restricted Global Notes and Restricted Definitive
Notes.
Pursuant to, but subject to the exceptions in, the Registration Rights
Agreement, the Issuer and the Subsidiary Guarantors will be obligated to
consummate an exchange offer pursuant to which the Holder of this Note shall
have the right to exchange this Note for a 7% Senior Note due 2016 of the Issuer
which shall have been registered under the Securities Act, in like principal
amount and having terms identical in all material respects to this Note (except
that such Note shall not be entitled to Additional Interest and shall not
contain terms with respect to transfer restrictions). The Holders shall be
entitled to receive certain Additional Interest in the event such exchange
offer
is not consummated or the Notes are not offered for resale and upon certain
other conditions, all pursuant to and in accordance with the terms of the
Registration Rights Agreement.2 This
Section not to appear on Exchange Notes or Private Exchange Notes or
Additional Notes unless required by the terms of such Additional
Notes.
SECTION 21.
CUSIP
and ISIN Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Issuer has caused CUSIP and ISIN numbers to
be
printed on the Notes and the Trustee may use CUSIP or ISIN numbers in notices
of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in
any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
SECTION 22.
Governing
Law.
This
Note shall be governed by, and construed in accordance with, the laws of the
State of New York.
The
Issuer will furnish to any Holder upon written request and without charge a
copy
of the Indenture.
ASSIGNMENT
FORM
I
or we
assign and transfer this Note to
(Print
or
type name, address and zip code of assignee or transferee)
(Insert
Social Security or other identifying number of assignee or
transferee)
and
irrevocably appoint _______________________________________ agent to transfer
this Note on the books of the Issuer. The agent may substitute another to act
for him.
|
Dated:
_________________
|
Signed:
__________________________________
(Sign
exactly as name appears on
the
other side of this Note)
|
|
Signature
Guarantee:
|
___________________________________________
Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor program reasonably acceptable to the Trustee)
|
In
connection with any transfer of this Note occurring prior to the date which
is
the date following the second anniversary of the original issuance of this
Note,
the undersigned confirms that it has not utilized any general solicitation
or
general advertising in connection with the transfer and is making the transfer
pursuant to one of the following:
[Check
One]
(1)
___ to
the
Issuer or a subsidiary thereof; or
|
(2)
___
|
to
a person who the transferor reasonably believes is a “qualified
institutional buyer” pursuant to and in compliance with Rule 144A
under the Securities Act of 1933, as amended (the “Securities Act”);
or
|
|
(3)
___
|
to
an institutional “accredited investor” (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act) that has furnished to the
Trustee a signed letter containing certain representations and agreements
(the form of which letter can be obtained from the Trustee);
or
|
|
(4)
___
|
outside
the United States to a non-“U.S. person” as defined in Rule 902 of
Regulation S under the Securities Act in compliance with
Rule 904 of Regulation S under the Securities Act;
or
|
|
(5)
___
|
pursuant
to the exemption from registration provided by Rule 144 under
the
Securities Act; or
|
|
(6)
___
|
pursuant
to an effective registration statement under the Securities
Act.
|
The
transferee is an Affiliate of the Issuer.
Unless
one of the foregoing items (1) through (6) is checked, the Trustee will refuse
to register any of the Notes evidenced by this certificate in the name of any
person other than the registered Holder thereof; provided,
however,
that if
item (3), (4) or (5) is checked, the Issuer or the Trustee may require, prior
to
registering any such transfer of the Notes, in their sole discretion, such
written legal opinions, certifications (including an investment letter in the
case of box (3) or (4)) and other information as the Trustee or the Issuer
has
reasonably requested to confirm that such transfer is being made pursuant to
an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
If
none
of the foregoing items (1) through (6) are checked, 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 2.16 of the Indenture shall
have been satisfied.
Dated:
Signed:
(Sign
exactly as name appears on the other
side
of
this Note)
Signature
Guarantee:
|
Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor program reasonably acceptable to the Trustee)
|
TO
BE
COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The
undersigned represents and warrants that it is purchasing this Note for its
own
account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a “qualified institutional buyer”
within the meaning of Rule 144A under the Securities Act and is aware
that
the sale to it is being made in reliance on Rule 144A and acknowledges
that
it has received such information regarding the Issuer as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned’s foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
NOTICE: To
be
executed by an executive
officer
OPTION
OF
HOLDER TO ELECT PURCHASE
If
you
want to elect to have this Note purchased by the Issuer pursuant to
Section 4.07 or Section 4.11 of the Indenture, check the appropriate
box:
Section 4.07
[ ] Section 4.11
[ ]
If
you
want to elect to have only part of this Note purchased by the Issuer pursuant
to
Section 4.07 or Section 4.11 of the Indenture, state the amount
(in
denominations of $1,000 and integral multiples thereof):
$___________
|
Dated:
_________________Signed:
|
(Sign
exactly as name appears on the other side of this Note)
|
|
Signature
Guarantee:
|
Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor program reasonably acceptable to the Trustee)
|
SCHEDULE
OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE3 This
schedule should be included only if the Note is issued in global
form.
The
following exchanges of a part of this Global Note for an interest in another
Global Note or for a Physical Note, or exchanges of a part of another Global
Note or Physical Note for an interest in this Global Note, have been
made:
|
Date
of Exchange
|
Amount
of decrease in
Principal
Amount of
this
Global Note
|
Amount
of increase in
Principal
Amount of
this
Global Note
|
Principal
Amount of
this
Global Note
following
such decrease
(or
increase)
|
Signature
of
authorized
officer of
Trustee
or Note
Custodian
|
1
2
3
EXHIBIT B
FORM
OF
LEGENDS
Each
Global Note and Physical Note that constitutes a Restricted Security shall
bear
the following legend (the “Private
Placement Legend”)
on the
face thereof until after the second anniversary of the Closing Date, unless
otherwise agreed by the Issuer and the Holder thereof or if such legend is
no
longer required by Section 2.16(f) of the Indenture:
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER
(1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT
WITHIN
TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO OMEGA HEALTHCARE INVESTORS, INC.
OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR (AS DEFINED IN
RULE
501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT) (AN “ACCREDITED
INVESTOR”) THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS
BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE
FOR
THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION
IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF AVAILABLE),
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER
THE SECURITIES ACT (IF AVAILABLE), (F) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL IF THE COMPANY SO REQUESTS) OR (G) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES
THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER
OF
THIS SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY,
IF
THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO
SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS,
LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR
IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.
AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,”“UNITED STATES” AND “U.S.
PERSON” HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.
Each
Global Note authenticated and delivered hereunder shall also bear the following
legend:
THIS
NOTE
IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND
IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A
SUCCESSOR DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN
THE
NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER
THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
TRANSFERS
OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART,
TO
NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE
AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS
MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.16 OF THE
INDENTURE.
EXHIBIT C
Form
of
Certificate To Be
Delivered
in Connection
with
Transfers
to Non-QIB Institutional Accredited Investors
[ ],
[ ]
U.S.
Bank
National Association
1360
Peachtree Street, N.E.
Suite
1105, EX-GA-ATPT
Atlanta,
Georgia 30309
T:
[ ]
F:
[ ]
Attention:
Corporate Trust Department
Ladies
and Gentlemen:
In
connection with our proposed purchase of 7% Senior Notes due 2016 (the
“Notes”)
of
OMEGA HEALTHCARE INVESTORS, INC., a Maryland corporation (the “Issuer”),
we
confirm that:
1. We
understand that any subsequent transfer of the Notes is subject to certain
restrictions and conditions set forth in the Indenture relating to the Notes
(the “Indenture”)
and
the undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes except in compliance with, such restrictions and conditions
and the Securities Act of 1933, as amended (the “Securities
Act”),
and
all applicable state securities laws.
2. We
understand that the offer and sale of the Notes have not been registered under
the Securities Act, and that the Notes may not be offered, sold, pledged or
otherwise transferred except as permitted in the following sentence. We agree,
on our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell, offer, pledge or otherwise transfer
any Notes, we will do so only (A) to the Issuer or any of the Issuer’s
Subsidiaries, (B) inside the United States to a “qualified institutional
buyer” (as defined in Rule 144A under the Securities Act) in a transaction
complying with Rule 144A under the Securities Act, (C) inside
the
United States to an institutional “accredited investor” (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act)
(an
“Accredited
Investor”),
that,
prior to such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to the Trustee a signed letter containing certain representations
and agreements relating to the restrictions on transfer of the Notes (the form
of which letter can be obtained from such Trustee), (D) outside the
United
States in compliance with Rule 904 under the Securities Act,
(E) pursuant to the exemption from registration provided by Rule 144
under the Securities Act (if available), (F) in accordance with another
exemption from the registration requirements of the Securities Act (and based
upon an opinion of counsel if we so request) or (G) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing any of the Notes from us a notice advising
such purchaser that resales of the Notes are restricted as stated
herein.
3. We
are
not acquiring the Notes for or on behalf of, and will not transfer the Notes
to,
any employee benefit plan subject to Title I of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”),
any
plan, individual retirement accounts or other arrangements subject to
Section 4975 of the Internal Revenue Code of 1986, as amended (the
“Code”),
or
provisions under any federal, state, local, or non-U.S. or other laws or
regulations that are similar to such provisions of ERISA of the Code or any
entity whose underlying assets are considered to include “plan assets” of such
plans, accounts or arrangements, except as permitted in the
Sections entitled “Notice to investors” and “Certain ERISA considerations”
of the Offering Memorandum of the Issuer relating to the Notes dated March
15,
2004.
4. We
understand that, on any proposed resale of any Notes, we will be required to
furnish to the Trustee and the Issuer such certification, legal opinions and
other information as the Trustee and the Issuer may reasonably require to
confirm that the proposed sale complies with the foregoing restrictions. We
further understand that the Notes purchased by us will bear a legend to the
foregoing effect.
5. We
are an
institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3)
or (7) of Regulation D under the Securities Act) and have such knowledge and
experience in financial and business matters as to be capable of evaluating
the
merits and risks of our investment in the Notes, and we and any accounts for
which we are acting are each able to bear the economic risk of our or their
investment, as the case may be.
6. We
are
acquiring the Notes purchased by us for our account or for one or more accounts
(each of which is an institutional “accredited
investor”)
as to
each of which we exercise sole investment discretion.
You,
as
Trustee, the Issuer, counsel for the Issuer and others are entitled to rely
upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
Very
truly yours,
[Name
of
Transferee]
By:
Name:
Title:
EXHIBIT D
Form
of
Certificate To Be Delivered
in
Connection with Transfers
Pursuant
to Regulation S
[ ],
[ ]
U.S.
Bank
National Association
1360
Peachtree Street, N.E.
Suite
1105, EX-GA-ATPT
Atlanta,
Georgia 30309
T:
[ ]
F:
[ ]
Attention:
Corporate Trust Department
Re: Omega
Healthcare Investors, Inc. (the “Issuer”)
7%
Senior Notes due 2016 (the “Notes”)
Ladies
and Gentlemen:
In
connection with our proposed sale of
$[ ] aggregate
principal amount
of the Notes, we confirm that such sale has been effected pursuant to and in
accordance with Regulation S under the U.S. Securities Act of 1933, as amended
(the “Securities
Act”),
and,
accordingly, we represent that:
(1) the
offer
of the Notes was not made to a person in the United States;
(2) either
(a) at the time the buy offer was originated, the transferee was outside the
United States or we and any person acting on our behalf reasonably believed
that
the transferee was outside the United States, or (b) the transaction was
executed in, on or through the facilities of a designated offshore securities
market and neither we nor any person acting on our behalf knows that the
transaction has been prearranged with a buyer in the United States;
(3) no
directed selling efforts have been made in the United States in contravention
of
the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as
applicable;
(4) the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act; and
(5) we
have
advised the transferee of the transfer restrictions applicable to the
Notes.
You,
as
Trustee, the Issuer, counsel for the Issuer and others are entitled to rely
upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby. Terms used in
this
certificate have the meanings set forth in Regulation S.
Very
truly yours,
[Name
of
Transferor]
By:
Authorized
Signatory
EXHIBIT E
SUBSIDIARY
GUARANTEE
For
value
received, each of the undersigned (including any successor Person under the
Indenture) hereby unconditionally guarantees, jointly and severally, to the
extent set forth in the Indenture (as defined below) to the Holder of this
Note
the payment of principal, premium, if any, and interest on this Note in the
amounts and at the times when due and interest on the overdue principal,
premium, if any, and interest, if any, of this Note when due, if lawful, and,
to
the extent permitted by law, the payment or performance of all other obligations
of the Issuer under the Indenture or the Notes, to the Holder of this Note
and
the Trustee, all in accordance with and subject to the terms and limitations
of
this Note, the Indenture, including Article Ten thereof, and this Subsidiary
Guarantee. This Subsidiary Guarantee will become effective in accordance with
Article Ten of the Indenture and its terms shall be evidenced therein. The
validity and enforceability of any Subsidiary Guarantee shall not be affected
by
the fact that it is not affixed to any particular Note.
Capitalized
terms used but not defined herein shall have the meanings ascribed to them
in
the Indenture dated as of December 30, 2005, among
Omega
Healthcare Investors, Inc., a Maryland corporation (the “Issuer”),
the
Subsidiary Guarantors named therein and U.S. Bank National Association, as
trustee (the “Trustee”),
as
amended or supplemented (the “Indenture”).
The
obligations of the undersigned to the Holders of Notes and to the Trustee
pursuant to this Subsidiary Guarantee and the Indenture are expressly set forth
in Article Ten of the Indenture and reference is hereby made to the Indenture
for the precise terms of the Subsidiary Guarantee and all of the other
provisions of the Indenture to which this Subsidiary Guarantee
relates.
No
director, officer, employee, incorporator, stockholder, member or manager of
any
Subsidiary Guarantor, as such, shall have any liability for any obligations
of
such Subsidiary Guarantors under such Subsidiary Guarantors’ Subsidiary
Guarantee or the Indenture or for any claim based on, in respect of, or by
reason of, such obligation or its creation.
This
Subsidiary Guarantee shall be governed by, and construed in accordance with,
the
laws of the State of New York.
This
Subsidiary Guarantee is subject to release upon the terms set forth in the
Indenture.
IN
WITNESS WHEREOF, each Subsidiary Guarantor has caused its Subsidiary Guarantee
to be duly executed.
Date:
[ ]
By:
Name:
Title: