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Exhibit 4.2
EXECUTION COPY
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MEDCO HEALTH SOLUTIONS, INC.
7.25% SENIOR NOTES DUE 2013
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INDENTURE
Dated as of August 12, 2003
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U.S. Bank Trust National Association
Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture
Indenture Section
Act Section
310(a)(1)..................................................
7.09
(a)(2)..................................................
7.09
(a)(3)..................................................
N.A.
(a)(4)..................................................
N.A.
(b).....................................................
7.08; 7.10
(c).....................................................
N.A.
311(a).....................................................
7.13
(b).....................................................
7.13
312(a).....................................................
12.03
(b).....................................................
12.03
(c).....................................................
12.03
313(a).....................................................
7.14
(a)
(b).....................................................
7.14
(a)
(c).....................................................
7.14 (a)
(d).....................................................
4.04; 7.14
(b)
314(a).....................................................
4.03
(b).....................................................
N.A.
(c)(1)..................................................
12.04 (1)
(c)(2)..................................................
12.04 (2)
(c)(3)..................................................
N.A.
(d).....................................................
N.A.
(e).....................................................
12.05
(f).....................................................
N.A.
315(a).....................................................
7.01
(b).....................................................
7.02
(c).....................................................
7.01
(d).....................................................
7.01
(e).....................................................
6.11
316(a) (last
sentence).....................................
1.01
(a)(1)(A)...............................................
6.05
(a)(1)(B)...............................................
6.04
(a)(2)..................................................
N.A.
(b).....................................................
6.07
(c).....................................................
N.A.
317(a)(1)..................................................
6.08
(a)(2)..................................................
6.09
(b).....................................................
2.11
318(a).....................................................
12.01
N.A. means not applicable.
* This Cross Reference Table is not part of
the Indenture.
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TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01
Definitions.....................................................1
Section 1.02 Other
Definitions..............................................22
Section 1.03 Rules of
Construction..........................................22
ARTICLE 2.
THE NOTES
Section 2.01 Form and
Denominations.........................................23
Section 2.02 Title and
Terms................................................23
Section 2.03 Execution, Authentication,
Delivery and Dating.................24
Section 2.04 Temporary
Notes................................................25
Section 2.05 Registration, Registration
of Transfer and Exchange............25
Section 2.06 Mutilated, Destroyed, Lost
and Stolen Notes....................27
Section 2.07 Payment of Interest;
Interest Rights Preserved.................27
Section 2.08 Persons Deemed
Owners..........................................28
Section 2.09
Cancellation...................................................28
Section 2.10 Computation of
Interest........................................29
Section 2.11 Paying Agent to Hold Money
in Trust............................29
Section 2.12 CUSIP
Numbers..................................................29
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to
Trustee.............................................29
Section 3.02 Selection of Notes to Be
Redeemed..............................29
Section 3.03 Notice of
Redemption...........................................30
Section 3.04 Effect of Notice of
Redemption.................................31
Section 3.05 Deposit of Redemption
Price....................................31
Section 3.06 Notes Redeemed in
Part.........................................31
Section 3.07 Optional
Redemption............................................31
Section 3.08 Offer to Purchase by
Application of Excess Proceeds............31
ARTICLE 4.
COVENANTS
Section 4.01 Payment of
Notes...............................................33
Section 4.02 Maintenance of Office or
Agency................................33
Section 4.03
Reports........................................................34
Section 4.04 Compliance
Certificate.........................................34
Section 4.05
Taxes..........................................................35
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Section 4.06 Stay, Extension and Usury
Laws.................................35
Section 4.07 Restricted
Payments............................................35
Section 4.08 Dividend and Other Payment
Restrictions Affecting
Subsidiaries...................................................38
Section 4.09 Incurrence of Indebtedness
and Issuance of
Preferred
Stock................................................40
Section 4.10 Asset
Sales....................................................44
Section 4.11 Transactions with
Affiliates...................................45
Section 4.12
Liens..........................................................47
Section 4.13 Corporate
Existence............................................47
Section 4.14 Offer to Repurchase Upon
Change of Control.....................48
Section 4.15 Limitation on Sale and
Leaseback Transactions..................49
Section 4.16 Payments for
Consent...........................................50
Section 4.17 Designation of Restricted
and Unrestricted
Subsidiaries...................................................50
Section 4.18 Changes in Covenants if
Notes Rated Investment
Grade..........................................................51
Section 4.19 Subsidiary
Guarantees..........................................51
Section 4.20 Duty of
Trustee................................................51
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation, or
Sale of Assets.......................51
Section 5.02 Successor Corporation
Substituted..............................52
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of
Default..............................................53
Section 6.02
Acceleration...................................................54
Section 6.03 Other
Remedies.................................................55
Section 6.04 Waiver of Past
Defaults........................................55
Section 6.05 Control by
Majority............................................55
Section 6.06 Limitation on
Suits............................................55
Section 6.07 Rights of Holders of Notes
to Receive Payment..................56
Section 6.08 Collection Suit by
Trustee.....................................56
Section 6.09 Trustee May File Proofs of
Claim...............................56
Section 6.10
Priorities.....................................................56
Section 6.11 Undertaking for
Costs..........................................57
ARTICLE 7.
TRUSTEE
Section 7.01 Certain Duties and
Responsibilities............................57
Section 7.02 Notice of
Defaults.............................................57
Section 7.03 Certain Rights of
Trustee......................................57
Section 7.04 Not Responsible for Recitals
or Issuance of Notes..............58
Section 7.05 May Hold
Notes.................................................58
Section 7.06 Money Held in
Trust............................................58
Section 7.07 Compensation and
Reimbursement.................................59
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Section 7.08 Disqualification;
Conflicting Interests........................59
Section 7.09 Corporate Trustee Required;
Eligibility........................59
Section 7.10 Resignation and Removal;
Appointment of Successor..............59
Section 7.11 Acceptance of Appointment by
Successor.........................60
Section 7.12 Merger, Conversion,
Consolidation or Succession
to
Business....................................................61
Section 7.13 Preferential Collection of
Claims against Company..............61
Section 7.14 Reports by
Trustee.............................................61
Section 7.15 Appointment of
Authenticating Agent............................61
ARTICLE 8.
LEGAL
DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal
Defeasance or Covenant
Defeasance.....................................................62
Section 8.02 Legal Defeasance and
Discharge.................................63
Section 8.03 Covenant
Defeasance............................................63
Section 8.04 Conditions to Legal or
Covenant Defeasance.....................64
Section 8.05 Deposited Money and
Government Securities to be
Held in Trust; Other Miscellaneous
Provisions..................65
Section 8.06 Repayment to
Company...........................................65
Section 8.07
Reinstatement..................................................65
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders
of Notes............................66
Section 9.02 With Consent of Holders of
Notes...............................67
Section 9.03 Compliance with Trust
Indenture Act............................68
Section 9.04 Effect of
Consents.............................................68
Section 9.05 Notation on or Exchange of
Notes...............................68
Section 9.06 Trustee to Sign Amendments,
etc................................68
Section 9.07 Effect of Supplemental
Indentures..............................69
ARTICLE 10.
SUBSIDIARY GUARANTEES
Section 10.01 Subsidiary
Guarantees..........................................69
Section 10.02 Limitation on Subsidiary Guarantor
Liability...................70
Section 10.03 Execution and Delivery of
Subsidiary Guarantee.................70
Section 10.04 Subsidiary Guarantors May
Consolidate, etc., on
Certain
Terms..................................................71
Section 10.05
Releases.......................................................72
ARTICLE 11.
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and
Discharge.....................................72
Section 11.02 Application of Trust
Money.....................................73
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ARTICLE 12.
MISCELLANEOUS
Section 12.01 Trust Indenture Act
Controls...................................74
Section 12.02
Notices........................................................74
Section 12.03 Company to Furnish Trustee Names
and Addresses of Holder;
Preservation of Information; Communications to
Holders.........75
Section 12.04 Certificate and Opinion as to
Conditions Precedent.............75
Section 12.05 Statements Required in Certificate
or Opinion..................76
Section 12.06 Rules by Trustee and
Agents....................................76
Section 12.07 No Personal Liability of
Directors, Officers,
Employees and
Stockholders.....................................76
Section 12.08 Governing
Law..................................................76
Section 12.09 Legal
Holidays.................................................76
Section 12.10 No Adverse Interpretation of Other
Agreements..................77
Section 12.11
Successors.....................................................77
Section 12.12
Separability...................................................77
Section 12.13 Counterpart
Originals..........................................77
Section 12.14 Table of Contents, Headings,
etc...............................77
Section 12.15 Benefits of
Indenture..........................................77
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF SUBSIDIARY
GUARANTEE
Exhibit C FORM OF SUPPLEMENTAL
INDENTURE
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INDENTURE dated
as of August 12, 2003 between Medco Health Solutions, Inc.,
a Delaware corporation (as defined in
Section 1.01 hereof, the "Company"), and
U.S. Bank Trust National Association, as
trustee (as defined in Section 1.01
hereof, the "Trustee").
The Company and
the Trustee agree as follows for the benefit of each other
and for the equal and ratable benefit of
the Holders (as defined) of the 7.25%
Senior Notes due 2013 (the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"Acquired Debt"
means, with respect to any specified Person:
(1) Indebtedness of
any other Person existing at the time such other
Person is merged
with or into or became a Subsidiary of such specified
Person, whether
or not such Indebtedness is incurred in connection with, or
in contemplation
of, such other Person merging with or into, or becoming a
Subsidiary of,
such specified Person; and
(2) Indebtedness
secured by a Lien encumbering any asset acquired by
such specified
Person,
but excluding Indebtedness of such other
Person that is extinguished, retired,
redeemed or repaid concurrently with such
other Person becoming a Restricted
Subsidiary of, or at the time it is merged
into or consolidates with, such
specified Person.
"Additional
Notes" means additional notes (other than the Initial Notes)
issued from time to time under this
Indenture in accordance with Sections 2.02,
4.09 and 9.01 hereof, as part of the same
series as the Initial Notes and
ranking equally with the Initial Notes in
all respects (or in all respects other
than the payment of interest accruing prior
to the issue date of such Additional
Notes).
"Adjusted
Treasury Rate" means, with respect to any redemption date, the
rate per annum equal to the semi-annual
equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price
for the Comparable Treasury Issue
(expressed as a percentage of its principal
amount) equal to the Comparable
Treasury Price for such redemption
date.
"Affiliate" of
any specified Person means any other Person directly or
indirectly controlling or controlled by or
under direct or indirect common
control with such specified Person. For
purposes of this definition, "control,"
as used with respect to any Person, means
the possession, directly or
indirectly, of the power to direct or cause
the direction of the management or
policies of such Person, whether through
the ownership of voting securities, by
agreement or otherwise; provided that
beneficial ownership of 10% or more of the
Voting Stock of a Person shall be deemed to
be control. For purposes of this
definition, the terms "controlling,"
"controlled by" and "under common control
with" have correlative meanings.
Notwithstanding the foregoing, no Person (other
than the Company or any Subsidiary of the
Company) in whom a Receivables
Subsidiary makes an Investment in
connection with a Receivables Program shall be
deemed to be an Affiliate of the Company or
any of its Subsidiaries solely by
reason of such Investment.
"Agent" means
any Registrar, co-registrar, Paying Agent or additional
paying agent.
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"Asset Sale"
means:
(1) the sale, lease,
conveyance or other disposition of any assets or
rights; provided
that the sale, conveyance or other disposition of all or
substantially
all of the assets of the Company and its Restricted
Subsidiaries
taken as a whole shall be governed by the provisions of
Section 5.01
hereof and, if applicable, the provisions of Section 4.14
hereof and not
by the provisions of Section 4.10 hereof; and
(2) the issuance of
Equity Interests by any of the Company's
Restricted
Subsidiaries to any Person other than to the Company or another
Restricted
Subsidiary.
Notwithstanding
the preceding, none of the following items shall be deemed
to be an Asset
Sale:
(1) any single
transaction or series of related transactions that
involves Equity
Interests or assets having a fair market value of less than
$35 million;
(2) a transfer of
assets between or among the Company and one or more
of its
Restricted Subsidiaries (including any Person that becomes a
Restricted
Subsidiary in connection with such transaction);
(3) the sale or lease
of inventory or accounts receivable in the
ordinary course
of business;
(4) any sale or other
disposition of Receivables and Related Assets
pursuant to or
in connection with a Receivables Program;
(5) any sale, lease or
other disposition in the ordinary course of
business of
obsolete, worn out or damaged equipment or other assets no
longer being
used by the Company or its Restricted Subsidiaries;
(6) any sale or
disposition deemed to occur in connection with (a)
creating or
granting any Permitted Lien or enforcing a Permitted Lien by
the sale or
disposition of the assets pledged under such Permitted Lien, to
the extent the
assets have a value not in excess of the Indebtedness
secured by such
Permitted Lien, or (b) a Sale and Leaseback Transaction
that is
permitted by Section 4.15 hereof;
(7) the sale or other
disposition of cash or Cash Equivalents; and
(8) a Restricted Payment or Permitted
Investment that is permitted by
any of clauses
(1) through (8) of Section 4.07(b) hereof.
"Attributable
Debt" in respect of a Sale and Leaseback Transaction means,
at the time of determination, the present
value of the obligation of the lessee
for net rental payments (excluding,
however, any amounts required to be paid by
such lessee, whether or not designated as
rent or additional rent, on account of
maintenance and repairs, insurance, taxes,
assessments, water rates or similar
charges or any amounts required to be paid
by such lessee thereunder contingent
upon the amount of sales or similar
contingent amounts) during the remaining
term of the lease included in such Sale and
Leaseback Transaction including any
period for which such lease has been
extended or may, at the option of the
lessor, be extended. Such present value
shall be calculated using a discount
rate equal to the rate of interest implicit
in such lease, determined in
accordance with GAAP.
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"Authenticating
Agent" means any Person authorized by the Trustee pursuant
to Section 7.15 hereof to act on behalf of
the Trustee to authenticate Notes.
"Bankruptcy Law"
means Title 11, United States Bankruptcy Code of 1978, as
amended, or any similar federal, state or
foreign law for the relief of debtors.
"Beneficial
Owner" has the meaning assigned to such term in Rule 13d-3 and
Rule 13d-5 under the Exchange Act, except
that in calculating the beneficial
ownership of any particular "person" (as
that term is used in Section 13(d)(3)
of the Exchange Act), such "person" shall
be deemed to have beneficial ownership
of all securities that such "person" has
the right to acquire by conversion or
exercise of other securities, whether such
right is currently exercisable or is
exercisable only upon the occurrence of a
subsequent condition. The terms
"Beneficially Owns" and "Beneficially
Owned" have a corresponding meaning.
"Board of
Directors" means:
(1) with respect to a
corporation, the board of directors of the
corporation or,
except in the context of the definitions of "Change of
Control" and
"Continuing Directors," any committee thereof;
(2) with respect to a
partnership, the Board of Directors of the
general partner
of the partnership; and
(3) with respect to
any other Person, the board, manager or committee
of such Person
serving a similar function.
"Board
Resolution" means a copy of a resolution certified by the
Secretary
or an Assistant Secretary of the Company to
have been adopted by the Board of
Directors of the Company and to be in full
force and effect on the date of such
certification, and delivered to the
Trustee.
"Business Day"
means each day other than a Saturday, Sunday or other day on
which commercial banking institutions are
authorized or required by law or
executive order to close in New York
City.
"Capital Lease
Obligation" means, at the time any determination is to be
made, the amount of the liability in
respect of a capital lease that would at
that time be required to be capitalized on
a balance sheet in accordance with
GAAP.
"Capital Stock"
means:
(1) in the case of a
corporation, corporate stock;
(2) in the case of an
association or business entity, any and all
shares,
interests, participations, rights or other equivalents (however
designated) of
corporate stock;
(3) in the case of a
partnership or limited liability company,
partnership or
membership interests (whether general or limited); and
(4) any other interest
or participation that confers on a Person the
right to receive
a share of the profits and losses of, or distributions of
assets of, the
issuing Person,
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but excluding any debt securities
convertible into, or exchangeable for, such
Capital Stock.
"Cash
Equivalents" means:
(1) United States
dollars;
(2) securities issued
or directly and fully guaranteed or insured by
the United
States government or any agency or instrumentality of the
United
States
government (provided that the full faith and credit of the
United
States is
pledged in support of those securities) having maturities of
not
more than one
year from the date of acquisition;
(3) certificates of
deposit, time deposits, eurodollar time deposits
and similar
instruments with maturities of one year or less from the date
of acquisition,
bankers' acceptances with maturities not exceeding six
months and
overnight bank deposits, in each case, with any domestic
commercial bank
having capital and surplus in excess of $500.0 million and
a Thomson Bank
Watch Rating (or the successor thereto) of "B" or better or
whose short-term
commercial paper is rated at least A-2 or the equivalent
thereof by
S&P or at least P-2 or the equivalent thereof by Moody's;
(4) repurchase
obligations with a term of not more than seven days
for underlying
securities of the types described in clauses (2) and (3)
above entered
into with any financial institution meeting the
qualifications
specified in clause (3) above or with a term of not more
than 30 days and
entered into with any domestic commercial bank having
capital and
surplus in excess of $500.0 million and a Thomson Bank Watch
Rating (or the
successor thereto) of "B" or better or a domestic commercial
bank, trust
company or securities dealer whose short-term commercial paper
is rated at
least A-2 or the equivalent thereof by S&P or at least P-2
or
the equivalent
thereof by Moody's;
(5) commercial paper
rated at least A-2 or the equivalent thereof by
S&P or at
least P-2 or the equivalent thereof by Moody's and in each case
maturing within
one year after the date of acquisition; and
(6) money market funds
(a) at least 95% of the assets of which
constitute Cash
Equivalents of the kinds described in clauses (1) through
(5) of this
definition, or (b) that comply with the criteria set forth in
SEC Rule 2a-7 of
the Investment Company Act of 1940.
"Change of
Control" means the occurrence of any of the following:
(1) the direct or
indirect sale, transfer, conveyance or other
disposition
(other than by way of merger or consolidation), in one or a
series of
related transactions, of all or substantially all of the
properties or
assets of the Company and its Restricted Subsidiaries, taken
as a whole, to
any "person" (as that term is used in Section 13(d)(3) of
the Exchange
Act), other than the Company or a Subsidiary Guarantor that is
a Wholly Owned
Subsidiary of the Company;
(2) the adoption of a
plan relating to the liquidation or dissolution
of the
Company;
(3) the consummation
of any transaction (including, without
limitation, any
merger or consolidation) the result of which is that any
"person" (as
that term is used in Section 13(d)(3) of the Exchange Act),
other than the
Company or a Subsidiary Guarantor that is a Wholly Owned
Subsidiary of
the Company, becomes the Beneficial Owner, directly or
indirectly, of
more than
4
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50% of the
Voting Stock of the Company, measured by voting power rather
than number of
shares; or
(4) the first day on
which a majority of the members of the Board of
Directors of the
Company are not Continuing Directors.
Notwithstanding
the foregoing, a transaction effected to create a holding
company of the Company shall not be deemed
to involve a Change of Control if (1)
pursuant to such transaction the Company
becomes a Wholly Owned Subsidiary of
such holding company and (2) the holders of
the Voting Stock of such holding
company immediately following such
transaction are the same as the holders of
Voting Stock of the Company immediately
prior to such transaction.
"Change of
Control Event" means the occurrence of a Change of Control and
a
Rating Decline.
"Company" means
Medco Health Solutions, Inc., a Delaware corporation and
any and all successors thereto.
"Company Order"
means a written request or order signed in the name of the
Company by its Chairman of the Board, its
Vice Chairman of the Board, its
President or any Vice President, and by its
Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Comparable
Treasury Issue" means the U.S. Treasury security selected by
the Quotation Agent as having a maturity
comparable to the remaining term of the
Notes to be redeemed that would be
utilized, at the time of selection and in
accordance with customary financial
practice, in pricing new issues of corporate
debt securities of comparable maturity to
the remaining term of such Notes.
"Comparable
Treasury Price" means, with respect to any redemption date:
(1) the average of the
bid and asked prices for the Comparable
Treasury Issue
(expressed in each case as a percentage of its principal
amount) on the
third Business Day preceding such redemption date, as set
forth in the
daily statistical release (or any successor release) published
by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for
U.S. Government Securities"; or
(2) if such release
(or any successor release) is not published or
does not contain
such prices on such Business Day, (a) the average of the
Reference
Treasury Dealer Quotations for such redemption date, after
excluding the
highest and lowest of such Reference Treasury Dealer
Quotations, or
(b) if the Quotation Agent obtains fewer than three such
Reference
Treasury Dealer Quotations, the average of all such quotations.
"Consolidated
Cash Flow" means, with respect to any specified Person for
any period, the Consolidated Net Income of
such Person for such period plus:
(1) an amount equal to
any extraordinary loss plus any net loss
realized by such
Person or any of its Restricted Subsidiaries in connection
with an Asset
Sale, to the extent such losses were deducted in computing
such
Consolidated Net Income; plus
(2) provision for
federal, state, local or foreign taxes based on
income or
profits of such Person and its Restricted Subsidiaries for such
period, to the
extent that such provision for taxes was deducted in
computing such
Consolidated Net Income; plus
5
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(3) Consolidated
Interest Expense, to the extent that any such
expense was
deducted in computing such Consolidated Net Income; plus
(4) depreciation,
amortization (including amortization or impairment
of goodwill and
other intangibles) and other non-cash expenses or charges
of such Person
and its Restricted Subsidiaries for such period to the
extent that such
depreciation, amortization, impairment and other non-cash
expenses or
charges were deducted in computing such Consolidated Net
Income;
minus
(5) any extraordinary
or non-recurring non-cash gains for such
period,
in each case, on a consolidated basis and
determined in accordance with GAAP.
"Consolidated
Interest Expense" means, for any period, the total interest
expense of a Person and its consolidated
Restricted Subsidiaries determined in
accordance with GAAP, plus, to the extent
not included in such total interest
expense and to the extent incurred by such
Person or its Restricted
Subsidiaries, without duplication:
(1) interest expense
attributable to Capital Lease Obligations and
imputed interest
with respect to Attributable Debt;
(2) amortization of
debt discount;
(3) capitalized
interest;
(4) non-cash interest
expense;
(5) commissions,
discounts and other fees and charges owed with
respect to
letters of credit and bankers' acceptance financings;
(6) net costs
associated with interest rate swap, cap or collar
agreements and
other agreements designed to protect such Person against
fluctuations in
interest rates;
(7) the interest
component of any deferred payment obligations; and
(8) any premiums,
fees, discounts, expenses and losses on the sale of
Receivables and
Related Assets (and any amortization thereof) payable in
connection with
a Receivables Program,
(in each case as determined on a
consolidated basis in conformity with GAAP),
and less, to the extent included in such
total interest expense, the
amortization during such period of
capitalized financing costs; provided that
the aggregate amount of amortization
relating to any such capitalized financing
costs deducted in calculating Consolidated
Interest Expense shall not exceed 5%
of the aggregate amount of the financing
giving rise to such capitalized
financing costs.
"Consolidated
Net Income" means, with respect to any specified Person for
any period, the aggregate of the Net Income
of such Person and its Restricted
Subsidiaries for such period, consolidated
in accordance with GAAP; provided
that:
(1) the Net Income (or
loss) of any Person that is not a Restricted
Subsidiary or
that is accounted for by the equity method of accounting
shall be
included only to the extent of the
6
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amount of
dividends or distributions paid in cash (or to the extent
converted into
cash) to or by the specified Person or a Restricted
Subsidiary of
the Person;
(2) the Net Income of
any Restricted Subsidiary shall be excluded to
the extent that
the declaration or payment of dividends or similar
distributions by
that Restricted Subsidiary of that Net Income is not at
the date of
determination permitted without any prior governmental approval
(that has not
been obtained) or, directly or indirectly, by operation of
the terms of its
charter or any agreement, instrument, judgment, decree,
order, statute,
rule or governmental regulation applicable to that
Restricted
Subsidiary or its stockholders, except to the extent that such
Net Income is
actually paid to such Person or one of its Restricted
Subsidiaries
through dividends, loans or otherwise;
(3) the cumulative
effect of a change in accounting principles shall
be excluded;
(4) any non-cash
goodwill impairment charges incurred subsequent to
the date of this
Indenture resulting from the application of SFAS No. 142
shall be
excluded;
(5) the Net Income of
any Unrestricted Subsidiary shall be included
to the extent
distributed or otherwise paid in cash (or to the extent
converted into
cash) to the specified Person or one of its Restricted
Subsidiaries;
and
(6) any non-cash
compensation charge arising from the grant of or the
issuance of
stock, stock options or other equity based awards to the extent
taken as an
expense in the Company's financial statements shall be
excluded.
"Consolidated
Net Tangible Assets" of a Person means total assets (less
accumulated depreciation and valuation
reserves and other reserves and items
deductible from gross book value of
specific asset accounts under GAAP) after
deducting therefrom (1) all current
liabilities, (2) any item representing
Investments in Unrestricted Subsidiaries
and (3) all goodwill, recorded
intangible assets, trade names, trademarks,
patents, unamortized debt discount,
organization expenses and other like
intangibles, all as set forth on the most
recent balance sheet of such Person and its
consolidated Restricted Subsidiaries
and computed in accordance with GAAP.
"Continuing
Directors" means, as of any date of determination, any member
of the Board of Directors of the Company
who:
(1) was a member of
such Board of Directors on the date of this
Indenture;
or
(2) was nominated for
election or elected to such Board of Directors
with the
approval of a majority of the Continuing Directors who were
members of such
Board at the time of such nomination or election.
"Corporate Trust
Office of the Trustee" will be at the address of the
Trustee specified in Section 12.02 hereof
or such other address as to which the
Trustee may give notice to the Company.
"Credit
Agreement" means the Senior Secured Credit Agreement, dated as
of
August 12, 2003, among the Company, as
borrower, JPMorgan Chase Bank, as
administrative agent, and the other agents
and lenders party thereto from time
to time, as such agreement may be amended,
restated, refunded, renewed, replaced
or refinanced (including increasing the
amount borrowed thereunder) in whole or
in part from time to time, including any
other agreements, notes, instruments or
documents from time to time evidencing
Indebtedness thereunder or as so
refunded, renewed, replaced or
refinanced.
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"Credit
Facilities" means one or more debt facilities (including,
without
limitation, the Credit Agreement, any note
purchase agreement or indenture) or
commercial paper facilities, in each case
with banks or other institutional
lenders providing for revolving credit
loans, notes, term loans, receivables
financing (including through the sale of
receivables to such lenders or to
special purpose entities formed to borrow
from such lenders against such
receivables) or letters of credit, in each
case, as amended, modified,
supplemented, restated, refunded, renewed,
replaced, restructured or refinanced
in whole or in part (including increasing
the amount borrowed or extending the
maturity thereunder or contemplated thereby
or adding or substituting one or
more lenders) from time to time.
"Default" means
any event that is, or with the passage of time or the
giving of notice or both would be, an Event
of Default.
"Depositary"
means, with respect to the Notes issuable or issued in whole
or in part in global form, The Depository
Trust Company ("DTC"), and any and all
successors thereto appointed as depositary
hereunder and having become such
pursuant to the applicable provision of
this Indenture.
"Designated
Noncash Consideration" means the fair market value of non-cash
consideration received by the Company or
any of its Restricted Subsidiaries in
connection with an Asset Sale that is
conclusively designated pursuant to an
Officers' Certificate. The aggregate fair
market value of the Designated Noncash
Consideration, taken together with the fair
market value at the time of receipt
of all other Designated Noncash
Consideration then held by the Company and its
Restricted Subsidiaries, may not exceed $20
million in the aggregate (with the
fair market value being measured at the
time received and without giving effect
to subsequent changes in value).
"Disqualified
Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is
convertible, or for which it is
exchangeable, in each case at the option of
the holder of the Capital Stock), or
upon the happening of any event, matures or
is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise,
or redeemable at the option of the
holder of the Capital Stock, in whole or in
part, on or prior to the date that
is 91 days after the date on which the
Notes mature. Notwithstanding the
preceding sentence, any Capital Stock that
would constitute Disqualified Stock
solely because the holders of the Capital
Stock have the right to require the
Company to repurchase such Capital Stock
upon the occurrence of a change of
control or an asset sale shall not
constitute Disqualified Stock if the terms of
such Capital Stock provide that the Company
may not repurchase or redeem any
such Capital Stock pursuant to such
provisions unless such repurchase or
redemption complies with Section 4.07
hereof.
"Equity
Interests" means Capital Stock and all warrants, options or
other
rights to acquire Capital Stock (but
excluding any debt security that is
convertible into, or exchangeable for,
Capital Stock).
"Exchange Act"
means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended
from time to time.
"Existing
Indebtedness" means any Indebtedness of the Company and its
Restricted Subsidiaries in existence on the
date of this Indenture or incurred
pursuant to commitments in existence on the
date hereof, until such amounts are
repaid and all such commitments with
respect thereto are terminated.
"Fall Away
Permitted Liens" means:
(1) Liens on any
assets, whether now owned or hereafter acquired, of
the Company and
any of its Restricted Subsidiaries securing Indebtedness
under any Credit
Facility and
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Hedging
Obligations to the extent permitted to be incurred by clauses
(1)
and (9),
respectively, of Section 4.09(b) hereof;
(2) Liens on any
Principal Property existing at the time of its
acquisition and
Liens created contemporaneously with or within 180 days
after (or
created pursuant to firm commitment financing arrangements
obtained within
that period) the completion of the acquisition, improvement
or construction
of such Principal Property to secure payment of the
purchase price
of such Principal Property or the cost of such construction
or
improvements;
(3) Liens on property
of a Person existing at the time such Person
becomes a
Restricted Subsidiary or is merged with or into or consolidated
with the Company
or any Restricted Subsidiary of the Company, provided that
such Liens were
in existence prior to the contemplation of such Person
becoming a
Restricted Subsidiary or such merger or consolidation and do
not
extend to any
assets other than those of the Person that becomes a
Restricted
Subsidiary or is merged into or consolidated with the Company
or
the Restricted
Subsidiary;
(4) Liens on assets
existing at the time of acquisition of the assets
by the Company
or any Restricted Subsidiary of the Company, provided that
such Liens were
in existence prior to the contemplation of such
acquisition;
(5) Liens securing
Indebtedness or other obligations of a Restricted
Subsidiary owing
to the Company or a Restricted Subsidiary;
(6) Liens in favor of
a governmental unit to secure payments under
any contract or
statutory obligation, or to secure debts incurred in
financing the
acquisition of or improvements to property subject thereto;
(7) Permitted Liens
existing on the date of a Fall Away Event;
(8) Liens to extend,
renew or replace any Liens referred to in
clauses (1)
through (7) or this clause (8) or any Lien existing on the date
of this
Indenture;
(9) mechanics' and
similar Liens;
(10) Liens arising out of litigation or judgments being contested;
and
(11) Liens for taxes or assessments or other governmental charges
or
levies not yet
due or being contested, landlords' Liens, tenants' rights
under leases,
easements and similar Liens not impairing the use or value of
the property
involved.
"Fixed Charges"
means, with respect to any specified Person for any period,
the sum, without duplication, of:
(1) the Consolidated
Interest Expense of such Person and its
Restricted
Subsidiaries for such period; plus
(2) any interest
expense on Indebtedness of any Person other than
such Person or
any of its Restricted Subsidiaries that is Guaranteed by
such Person or
one of its Restricted Subsidiaries or secured by a Lien on
assets of such
Person or one of its Restricted Subsidiaries, whether or not
such Guarantee
or Lien is called upon; plus
9
<PAGE>
(3) the product of (a)
all dividends, whether paid or accrued and
whether or not
in cash, on any series of preferred stock of such Person or
any of its
Restricted Subsidiaries, other than dividends on Equity
Interests
payable solely in Equity Interests of the Company (other than
Disqualified
Stock) or to the Company or a Restricted Subsidiary of the
Company, times
(b) a fraction, the numerator of which is one and the
denominator of
which is one minus the then current combined federal, state
and local
statutory tax rate of such Person, expressed as a decimal, in
each case, on a
consolidated basis and in accordance with GAAP.
"Fixed Charge
Coverage Ratio" means, with respect to any specified Person
for any four-quarter period, the ratio of
the Consolidated Cash Flow of such
Person and its Restricted Subsidiaries for
such period to the Fixed Charges of
such Person and its Restricted Subsidiaries
for such period. In the event that
the specified Person or any of its
Restricted Subsidiaries incurs, assumes,
Guarantees, repays, repurchases or redeems
any Indebtedness (other than ordinary
working capital borrowings) or issues,
repurchases or redeems preferred stock
subsequent to the commencement of the
period for which the Fixed Charge Coverage
Ratio is being calculated and on or prior
to the date on which the event for
which the calculation of the Fixed Charge
Coverage Ratio is made (the
"Calculation Date"), then the Fixed Charge
Coverage Ratio shall be calculated
giving pro forma effect to such incurrence,
assumption, Guarantee, repayment,
repurchase or redemption of Indebtedness,
or such issuance, repurchase or
redemption of preferred stock, and the use
of the proceeds therefrom as if the
same had occurred at the beginning of the
applicable four-quarter reference
period.
In addition, for
purposes of calculating the Fixed Charge Coverage Ratio:
(1) acquisitions or
dispositions that have been made by the specified
Person or any of
its Restricted Subsidiaries, including through mergers or
consolidations
and including any related financing transactions, during the
four-quarter
reference period or subsequent to such reference period and on
or prior to the
Calculation Date (including any acquisitions or
dispositions
made during such reference period or subsequent to such
reference period
and on or prior to the Calculation Date by any Person that
became a
Restricted Subsidiary or was merged with and into the specified
Person or any of
its Restricted Subsidiaries on or prior to such
Calculation
Date) shall be given pro forma effect as if they had occurred
on the first day
of the four-quarter reference period, and Consolidated
Cash Flow for
such reference period shall be calculated on a pro forma
basis in
accordance with Regulation S-X under the Securities Act, but
without giving
effect to clause (3) of the proviso set forth in the
definition of
Consolidated Net Income;
(2) the Consolidated
Cash Flow attributable to discontinued
operations, as
determined in accordance with GAAP, shall be excluded;
(3) the Fixed Charges attributable to
discontinued operations, as
determined in
accordance with GAAP, shall be excluded, but only to the
extent that the
obligations giving rise to such Fixed Charges shall not be
obligations of
the specified Person or any of its Restricted Subsidiaries
following the
Calculation Date;
(4) the interest
expense attributable to interest on any Indebtedness
computed on a
pro forma basis and (a) bearing a floating interest rate
shall be
computed as if the rate in effect on the date of computation
had
been the
applicable rate for the entire period and (b) that was not
outstanding
during the period for which the computation is being made but
which bears, at
the option of such Person, a fixed or floating rate of
interest, shall
be computed by applying at the option of such Person either
the fixed or
floating rate; and
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<PAGE>
(5) the interest
expense attributable to interest on any working
capital
borrowings under a revolving credit facility computed on a pro
forma basis
shall be computed based on the average daily balance of such
working capital
borrowings during the applicable period.
"GAAP" means
generally accepted accounting principles set forth in the
opinions and pronouncements of the
Accounting Principles Board of the American
Institute of Certified Public Accountants
and statements and pronouncements of
the Financial Accounting Standards Board or
in such other statements by such
other entity as have been approved by a
significant segment of the accounting
profession for application in the United
States of America, which are in effect
on the date of this Indenture; provided
that, in preparing its periodic reports
which such entity is required to file
pursuant to the Exchange Act, GAAP shall
mean such principles as are in effect from
time to time.
"Global Notes"
means, individually and collectively, each Note issued in
global form pursuant to this Indenture,
which shall comply with the applicable
provisions of Section 2.05 hereof.
"Global Note
Legend" means the legend set forth in Section 2.05(e) hereof,
which is required to be placed on all
Global Notes issued under this Indenture.
"Government
Securities" means direct obligations of, or obligations
guaranteed by, the United States of
America, and the payment for which the
United States pledges its full faith and
credit.
"Guarantee"
means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary
course of business, direct or
indirect, in any manner including, without
limitation, by way of a pledge of
assets or through letters of credit or
reimbursement agreements in respect
thereof, of all or any part of any
Indebtedness and "Guaranteed" and
"Guarantees" shall have meanings
correlative to the foregoing.
"Hedging
Obligations" means, with respect to any specified Person, the
obligations of such Person under:
(1) interest rate swap
agreements, interest rate cap agreements and
interest rate
collar agreements;
(2) other agreements
or arrangements designed to protect such Person
against
fluctuations in interest rates; and
(3) other hedging
transactions entered into in the ordinary course of
business and not
for speculative purposes.
"Holder" means a
Person in whose name a Note is registered.
"Indebtedness"
means, with respect to any specified Person, any
indebtedness of such Person, whether or not
contingent and without duplication:
(1) in respect of
borrowed money;
(2) evidenced by
bonds, notes, debentures or similar instruments or
letters of
credit (or reimbursement agreements in respect thereof);
(3) in respect of
bankers' acceptances;
11
<PAGE>
(4) representing
Capital Lease Obligations;
(5) representing the
balance deferred and unpaid of the purchase
price of any
property, except any such balance that constitutes an accrued
expense or trade
payable, or similar obligations to trade creditors; or
(6) representing any
Hedging Obligations,
if and to the extent any of the preceding
items (other than letters of credit
and Hedging Obligations) would appear as a
liability upon a balance sheet of the
specified Person prepared in accordance
with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of
others secured by a Lien on any
asset of the specified Person (whether or
not such Indebtedness is assumed by
the specified Person) and, to the extent
not otherwise included, the Guarantee
by the specified Person of any indebtedness
of any other Person, provided that
the amount of any Guarantee that
constitutes Indebtedness of the specified
Person shall be deemed to be an amount
equal to the lesser of the outstanding
principal amount (or maximum principal
amount, if larger) of the Indebtedness in
respect of which such Guarantee is made or
any lesser amount set forth therein
as the maximum Guarantee liability of the
specified Person.
The amount of
any Indebtedness outstanding as of any date shall be: (1) the
accreted value of the Indebtedness, in the
case of any Indebtedness issued with
original issue discount; and (2) the
principal amount of the Indebtedness, in
the case of any other Indebtedness;
provided that for purposes of determining
the amount of any Indebtedness, if recourse
with respect to such Indebtedness is
limited to any asset, the amount of such
Indebtedness shall be limited to the
lesser of the fair market value of such
asset or the amount of such
Indebtedness.
Notwithstanding
the foregoing, "Indebtedness" shall not include (a) advance
payments by customers in the ordinary
course of business for services or
products to be provided or delivered in the
future or (b) deferred taxes.
"Indenture"
means this Indenture, as amended or supplemented from time to
time in accordance with its terms.
"Initial Notes"
means the first $500 million aggregate principal amount of
Notes issued under this Indenture on the
date hereof.
"Interest
Payment Date" means the date on which an installment of
interest
on the Notes is scheduled to be paid.
"Investment
Grade Rating" means a rating of Baa3 or better by Moody's (or
its equivalent under any successor rating
categories of Moody's) and BBB- or
better by S&P (or its equivalent under
any successor rating categories of S&P)
(or, in each case, if such Rating Agency
ceases to rate the Notes for reasons
outside of the control of the Company, the
equivalent investment grade credit
rating from any Rating Agency selected by
the Company as a replacement Rating
Agency).
"Investments"
means, with respect to any Person, all direct or indirect
investments by such Person in other Persons
(including Affiliates) in the form
of loans (including Guarantees or other
obligations), advances or capital
contributions (excluding commission, travel
and similar advances to officers and
employees made in the ordinary course of
business), purchases or other
acquisitions for value of Indebtedness,
Equity Interests or other securities,
together with all items that are or would
be classified as investments on a
balance sheet prepared in accordance with
GAAP. If the Company or any Restricted
Subsidiary of the Company sells or
otherwise disposes of any Equity Interests of
any direct or indirect
12
<PAGE>
Restricted Subsidiary of the Company such
that, after giving effect to any such
sale or disposition, such Person is no
longer a Restricted Subsidiary of the
Company, the Company shall be deemed to
have made an Investment on the date of
any such sale or disposition equal to the
fair market value of the Company's
Investments in such Restricted Subsidiary
that were not sold or disposed of in
an amount determined as provided in Section
4.07(c) hereof.
"Lien" means,
with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of
any kind in respect of such asset,
whether or not filed, recorded or otherwise
perfected under applicable law,
including any conditional sale or other
title retention agreement, any lease in
the nature thereof, any option or other
agreement to sell or give a security
interest in and any filing of or agreement
to give any financing statement under
the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction,
provided that in no event shall an
operating lease or any Uniform Commercial
Code financing statement filed in respect
thereof be deemed to constitute a
Lien.
"Moody's" means
Moody's Investors Service, Inc. and its successors.
"Net Income"
means, with respect to any specified Person, the net income
(loss) of such Person, determined in
accordance with GAAP and before any
reduction in respect of preferred stock
dividends, excluding, however:
(1) any gain or loss,
together with any related provision for taxes
on such gain or
loss, realized in connection with: (a) any Asset Sale; or
(b) the
disposition of any securities by such Person or any of its
Restricted
Subsidiaries or the extinguishment of any Indebtedness of such
Person or any of
its Restricted Subsidiaries; and
(2) any extraordinary
noncash gain or loss, together with any related
provision for
taxes on such extraordinary gain or loss.
"Net Proceeds"
means the aggregate cash proceeds received by the Company or
any of its Restricted Subsidiaries in
respect of any Asset Sale (including,
without limitation, any cash received upon
the sale or other disposition of any
Designated Noncash Consideration or any
other non-cash consideration received in
any Asset Sale), net of:
(1) costs relating to
such Asset Sale, including, without limitation,
legal,
accounting and investment banking fees, and sales commissions,
and
any relocation
expenses incurred as a result of the Asset Sale, taxes paid
or payable as a
result of the Asset Sale, in each case, after taking into
account any available
tax credits or deductions and any tax sharing
arrangements;
and
(2) amounts required
to be applied to the repayment of Indebtedness,
other than
Indebtedness under a Credit Facility, secured by a Lien on the
asset or assets that
were the subject of such Asset Sale.
"Non-Recourse
Debt" means Indebtedness:
(1) as to which
neither the Company nor any of its Restricted
Subsidiaries (a)
provides credit support of any kind (including any
undertaking, agreement
or instrument that would constitute Indebtedness),
(b) is directly
or indirectly liable as a guarantor or otherwise or (c)
constitutes the
lender; and
(2) no default with
respect to which (including any rights that the
holders of the
Indebtedness may have to take enforcement action against an
Unrestricted
Subsidiary) would
13
<PAGE>
permit upon
notice, lapse of time or both any holder of any other
Indebtedness
(other than the Notes) of the Company or any of its Restricted
Subsidiaries to
declare a default on such other Indebtedness or cause the
payment of such
other Indebtedness of the Company or any of its Restricted
Subsidiaries to
be accelerated or payable prior to the date it is scheduled
to be
repaid.
"Notes" has the
meaning assigned to it in the preamble to this Indenture.
The Initial Notes and the Additional Notes
shall constitute a single class for
all purposes under this Indenture, and
unless the context otherwise requires,
all references to the Notes shall include
the Initial Notes and any Additional
Notes.
"Obligations"
means any principal, interest, penalties, fees, taxes, costs,
indemnifications, reimbursements, damages
and other liabilities payable under
the documentation governing, securing or
relating to any Indebtedness, whether
or not a claim in respect thereof has been
asserted.
"Officer" means,
with respect to any Person, the Chairman of the Board, any
Vice Chairman, the Chief Executive Officer,
the President, the Chief Operating
Officer, the Chief Financial Officer, the
Chief Accounting Officer, the
Treasurer, any Assistant Treasurer, the
Controller, the Secretary, any Assistant
Secretary or any Vice President of such
Person.
"Officers'
Certificate" means a certificate signed on behalf of the
Company
by two Officers of the Company, one of whom
must be the principal executive
officer, the principal financial officer,
the treasurer or the principal
accounting officer of the Company.
"Opinion of
Counsel" means a written opinion of counsel, who may be an
employee or counsel for the Company, and
who shall be acceptable to the Trustee.
Counsel may rely on certificates of the
Company or government or other officials
customary for opinions of the type
required, certifying as to matters of fact.
"Outstanding",
when used with respect to Notes, means, as of the date of
determination, all Notes theretofore
authenticated and delivered under this
Indenture, except:
(1) Notes theretofore
cancelled by the Trustee or delivered to the
Trustee for
cancellation;
(2) Notes, or portions
thereof, for whose payment or redemption money
in the necessary
amount has been theretofore deposited with the Trustee or
any Paying Agent
(other than the Company) in trust or set aside and
segregated in
trust by the Company (if the Company shall act as its own
Paying Agent)
for the Holders of such Notes; provided that, if such Notes
are to be
redeemed, notice of such redemption has been duly given
pursuant
to this
Indenture or provision therefor satisfactory to the Trustee has
been made;
and
(3) Notes which have
been paid pursuant to Section 2.06 hereof or in
exchange for or
in lieu of which other Notes have been authenticated and
delivered
pursuant to this Indenture, other than any such Notes in
respect
of which there
shall have been presented to the Trustee proof satisfactory
to it that such
Notes are held by a protected purchaser in whose hands such
Notes are valid
obligations of the Company;
provided that in determining whether the
Holders of the requisite principal
amount of the Outstanding Notes have given
any request, demand, authorization,
direction, notice, consent or waiver
hereunder, Notes owned by the Company or
any other obligor upon the Notes or any
Affiliate of the Company or of such
other obligor shall be disregarded and
deemed not to be Outstanding, except
that, in determining
14
<PAGE>
whether the Trustee shall be protected in
relying upon any such request, demand,
authorization, direction, notice, consent
or waiver, only Notes which the
Trustee knows to be so owned shall be so
disregarded. Notes so owned which have
been pledged in good faith may be regarded
as Outstanding if the pledgee
establishes to the satisfaction of the
Trustee the pledgee's right so to act
with respect to such Notes and that the
pledgee is not the Company or any other
obligor upon the Notes or any Affiliate of
the Company or of such other obligor.
"Paying Agent"
means any Person (including the Company) authorized by the
Company to pay the principal of (and
premium, if any) or interest on any Notes
on behalf of the Company.
"Permitted
Investments" means:
(1) any Investment in
the Company or in a Restricted Subsidiary of
the Company;
(2) any Investment in
Cash Equivalents;
(3) any Investment by
the Company or any Restricted Subsidiary of the
Company in a
Person, if as a result of such Investment:
(a) such Person
becomes a Restricted Subsidiary of the Company;
or
(b) such Person is
merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to,
or
is liquidated into, the Company or a Restricted Subsidiary of
the
Company;
(4) any Investment
made as a result of the receipt of non-cash
consideration
from an Asset Sale that was made pursuant to and in
compliance with
Section 4.10 hereof;
(5) any Investment
solely in exchange for the issuance of Equity
Interests (other
than Disqualified Stock) of the Company;
(6) any Investments
received in compromise of obligations of trade
creditors or
customers that were incurred in the ordinary course of
business,
including pursuant to any plan of reorganization or similar
arrangement upon
the bankruptcy or insolvency of any trade creditor or
customer;
(7) Hedging
Obligations;
(8) Investments
constituting loans, advances or extensions of credit
to employees,
officers and directors made in the ordinary course of
business;
(9) Investments in
existence on the date of this Indenture and an
Investment in
any Person to the extent such Investment replaces or
refinances an
Investment in such Person existing on the date of this
Indenture in an amount not
exceeding the amount of the Investment being
replaced or
refinanced; provided that the new Investment is on terms and
conditions not
materially less favorable, taken as a whole, to the Company
than the
Investment being renewed or replaced;
(10) an Investment in a trust, limited liability company,
special
purpose entity
or other similar entity in connection with a Receivables
Program;
provided that the only assets transferred
15
<PAGE>
to such trust,
limited liability company, special purpose entity or other
similar entity
consist of Receivables and Related Assets of such
Receivables
Subsidiary;
(11) Investments in any of the Notes;
(12) Guarantees of Indebtedness of the Company or any of its
Restricted
Subsidiaries issued in accordance with Section 4.09 hereof;
(13) other Investments in any Person having an aggregate fair
market
value (measured
on the date each such Investment was made and without
giving effect to
subsequent changes in value), when taken together with all
other
Investments made pursuant to this clause (13) since the date of
this
Indenture not to
exceed $50 million.
"Permitted Liens"
means:
(1) Liens on any
assets, whether now owned or hereafter acquired of
the Company and
any of its Restricted Subsidiaries securing Indebtedness
under any Credit
Facility to the extent they were permitted to be incurred
under Section
4.09(b)(1) hereof;
(2) Liens in favor of
the Company or a Restricted Subsidiary;
(3) Liens on property
of a Person existing at the time such Person
(a) is merged
with or into or consolidated with the Company or any
Restricted
Subsidiary of the Company or (b) otherwise becomes a Restricted
Subsidiary of
the Company; provided that such Liens were in existence prior
to the
contemplation of such merger or consolidation or such Person's
becoming a Restricted
Subsidiary and do not extend to any assets other than
those of the
Person merged into or consolidated with the Company or the
Restricted
Subsidiary;
(4) Liens on assets
existing at the time of acquisition of the assets
by the Company
or any Restricted Subsidiary of the Company, provided that
such Liens were
in existence prior to the contemplation of such
acquisition;
(5) Liens to secure
the performance of statutory obligations, surety
or appeal bonds,
performance bonds or other obligations of a like nature
incurred in the
ordinary course of business;
(6) Liens to secure
Indebtedness (including Capital Lease
Obligations)
permitted by Section 4.09(b)(4) hereof covering only the
assets acquired
with such Indebtedness;
(7) Liens existing on
the date of this Indenture;
(8) Liens for taxes,
assessments, governmental charges, levies or
claims that are
not yet delinquent or that are being contested in good
faith by
appropriate proceedings promptly instituted and diligently
concluded,
provided that any reserve or other appropriate provision as is
required in
conformity with GAAP has been made therefor;
(9) Liens on
Receivables and Related Assets to reflect sales of
receivables
pursuant to a Receivables Program permitted by Section
4.09(b)(12)
hereof covering only the assets acquired with such
Indebtedness;
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<PAGE>
(10) Liens securing Indebtedness or other obligations of a
Restricted
Subsidiary owing
to the Company or a Restricted Subsidiary (other than a
Receivables
Subsidiary);
(11) Liens securing Permitted Refinancing Indebtedness incurred
to
refinance
Indebtedness that was previously so secured, provided that any
such Lien is
limited to all or part of the same property or assets (plus
assets or
property affixed or appurtenant thereto or proceeds in respect
thereof) that
secured (or, under the written arrangements under which the
original Lien
arose, could secure) the Indebtedness being refinanced or is
in respect of
property that is the security for a Permitted Lien;
(12) Liens securing Hedging Obligations so long as such Hedging
Obligations are
permitted to be incurred under this Indenture;
(13) Liens on assets of Unrestricted Subsidiaries that secure
Non-Recourse
Debt of Unrestricted Subsidiaries; and
(14) in addition
to the items referred to in clauses (1) through (13)
above, Liens of
the Company and its Restricted Subsidiaries in an aggregate
amount that will
not exceed the greater of $50 million and 2.5% of
Consolidated Net
Tangible Assets of the Company.
"Permitted
Refinancing Indebtedness" means any Indebtedness of the Company
or any Restricted Subsidiary issued in
exchange for, or the net proceeds of
which are used to extend, refinance, renew,
replace, defease or refund other
Indebtedness of the Company or any of its
Restricted Subsidiaries (other than
intercompany Indebtedness); provided
that:
(1) the principal
amount (or accreted value, if applicable) of such
Permitted
Refinancing Indebtedness does not exceed the principal amount
(or
accreted value,
if applicable) of the Indebtedness extended, refinanced,
renewed,
replaced, defeased or refunded (plus all accrued interest on
the
Indebtedness and
the amount of all expenses and premiums incurred in
connection
therewith);
(2) such Permitted
Refinancing Indebtedness has a final maturity date
later than the
final maturity date of, and has a Weighted Average Life to
Maturity equal
to or greater than the Weighted Average Life to Maturity of,
the Indebtedness
being extended, refinanced, renewed, replaced, defeased or
refunded;
(3) if the
Indebtedness being extended, refinanced, renewed,
replaced,
defeased or refunded is subordinated in right of payment to the
Notes, such
Permitted Refinancing Indebtedness is subordinated in right of
payment to the
Notes on terms at least as favorable to the Holders of Notes
as those
contained in the documentation governing the Indebtedness being
extended,
refinanced, renewed, replaced, defeased or refunded; and
(4) such Indebtedness
is incurred either by the Company or by the
Restricted
Subsidiary, in each case, which is the obligor on the
Indebtedness
being extended, refinanced, renewed, replaced, defeased or
refunded.
"Person" means
any individual, corporation, partnership, joint venture,
association, joint-stock company, trust,
unincorporated organization, limited
liability company or government or other
governmental agency.
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"Predecessor
Note" of any particular Note means every previous Note
evidencing all or a portion of the same
debt as that evidenced by such
particular Note; and, for the purposes of
this definition, any Note
authenticated and delivered under Section
2.06 hereof in exchange for or in lieu
of a mutilated, destroyed, lost or stolen
Note shall be deemed to evidence the
same debt as the mutilated, destroyed, lost
or stolen Note.
"Principal
Property" means (a) the land, land improvements, buildings and
fixtures (to the extent they constitute
real property interests, including any
leasehold interest therein) constituting
the principal corporate office, any
automated dispensing pharmacy, prescription
processing center, call center, data
center or office (whether now owned or
hereafter acquired) which is owned by the
Company or one of its Subsidiaries and is
located in the United States, but no
such property shall be deemed a Principal
Property if its gross book value
(before deducting accumulated depreciation)
is less than 1% of Consolidated Net
Tangible Assets of the Company, and (b) any
Capital Stock or Indebtedness of any
Subsidiary owning any such property;
provided that "Principal Property" shall
not include any facility that in the
opinion of the Board of Directors of the
Company, is not of material importance to
the total business conducted by the
Company and its Restricted Subsidiaries,
considered as a whole.
"Quotation
Agent" means the Reference Treasury Dealer appointed by the
Company.
"Rating Agency"
means (1) each of Moody's and S&P and (2) if Moody's or
S&P
ceases to rate the Notes or fails to make a
rating of the Notes publicly
available for reasons outside of the
control of the Company, a "nationally
recognized statistical rating organization"
within the meaning of Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act
selected by the Company as a
replacement agency for Moody's or S&P,
as the case may be.
"Rating Decline"
means the occurrence on any date from the date of the
public notice of an arrangement that could
result in a Change of Control until
the end of the 60-day period following
public notice of the occurrence of a
Change of Control (which period shall be
extended so long as the rating of the
Notes is under publicly announced
consideration for possible downgrade by any
Rating Agency) of:
(1) a decline in the
rating of the Notes by such Rating Agency by at
least one notch
in the gradation of the rating scale (e.g., + or - for S&P
or 1, 2 and 3
for Moody's) from such Rating Agency's rating of the Notes on
any date from
the date the Notes were originally rated to the date of
notice to such
Rating Agency of an arrangement which could result in a
Change of
Control; or
(2) withdrawal by such
Rating Agency of such Rating Agency's rating
of the
Notes.
"Receivables and
Related Assets" means accounts receivable, instruments,
chattel paper, obligations, general
intangibles and other similar assets,
including interests in merchandise or
goods, the sale or lease of which give
rise to the foregoing, related contractual
rights, guarantees, insurance
proceeds, collections, other related assets
and proceeds of all the foregoing.
"Receivables
Program" means, with respect to any Person, any accounts
receivable securitization program pursuant
to which such Person pledges, sells
or otherwise transfers or encumbers its
accounts receivable.
"Receivables
Subsidiary" means a Wholly Owned Subsidiary of the Company or
a Restricted Subsidiary of the Company (or
another Person in which the Company
or any Restricted Subsidiary of the Company
makes an Investment and to which the
Company or any Restricted Subsidiary of the
Company transfers Receivables and
Related Assets) which engages in no
activities other than in connection with the
18
<PAGE>
financing of Receivables and Related Assets
and which is designated by the Board
of Directors of the Company as a
Receivables Subsidiary.
"Reference
Treasury Dealer" means any of Goldman, Sachs & Co., J.P.
Morgan
Securities Inc. or Citigroup Global Markets
Inc. and their respective
successors; provided that if any of the
foregoing shall cease to be a primary
U.S. Government securities dealer in New
York City (a "Primary Treasury
Dealer"), the Company shall substitute
therefor another Primary Treasury Dealer.
"Reference
Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any
redemption date, the average, as determined by
the Trustee, of the bid and asked prices
for the Comparable Treasury Issue
(expressed in each case as a percentage of
its principal amount) quoted in
writing to the Trustee by such Reference
Treasury Dealer at 5:00 pm on the third
Business Day preceding such redemption
date.
"Regular Record
Date" for the interest payable on any Interest Payment Date
means the February 1 or August 1 (whether
or not a Business Day), as the case
may be, next preceding such Interest
Payment Date.
"Replacement
Assets" means (1) any noncurrent assets that will be used or
useful in the business of the Company or
one or more of its Restricted
Subsidiaries, (2) substantially all of the
assets of one or more other Persons
or units, divisions or other operating
portions thereof, or (3) a majority of
the Voting Stock of any Person that will
become on the date of acquisition
thereof a Restricted Subsidiary as a result
of such acquisition.
"Responsible
Officer," when used with respect to the Trustee, means any
officer of the Trustee who has direct
responsibility for administration of this
Indenture.
"Restricted
Investment" means an Investment other than a Permitted
Investment.
"Restricted
Subsidiary" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted
Subsidiary.
"Sale and
Leaseback Transaction" means any arrangement with any Person
providing for the leasing by the Company or
any Restricted Subsidiary of any
properties or assets of the Company and/or
such Restricted Subsidiary (except
for leases between the Company and any
Restricted Subsidiary, between any
Restricted Subsidiary and the Company or
between Restricted Subsidiaries), which
properties or assets have been or are to be
sold or transferred by the Company
or such Subsidiary to such Person with the
intention of taking back a lease of
such properties or assets.
"S&P" means
Standard & Poor's Ratings Service, a division of The McGraw
Hill Companies, Inc., and its
successors.
"SEC" means the
Securities and Exchange Commission, as from time to time
constituted, created under the Exchange
Act, or, if at any time after the
execution of this instrument such
Commission is not existing and performing the
duties now assigned to it under the TIA,
then the body performing such duties at
such time.
"Securities Act"
means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time
to time.
19
<PAGE>
"Significant
Subsidiary" means, at any time, a Subsidiary of the Company if
the Company's and its other Subsidiaries'
proportionate share, individually or
in the aggregate, of the Consolidated Net
Tangible Assets of such Subsidiary
exceeds 15% of the Consolidated Net
Tangible Assets of the Company as of the end
of the most recently completed fiscal year
or fiscal quarter, as applicable; it
being understood that the term Significant
Subsidiary includes any two or more
Subsidiaries of the Company that together
meet the foregoing test.
"Special Record
Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to
Section 3.07 hereof.
"Stated
Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness,
the date on which the payment of
interest or principal was scheduled to be
paid (including with respect to
sinking fund obligations) in the original
documentation governing such
Indebtedness, and shall not include any
contingent obligations to repay, redeem
or repurchase any such interest or
principal prior to the date originally
scheduled for the payment thereof.
"Subsidiary"
means, with respect to any specified Person:
(1) any corporation,
association or other business entity of which
more than 50% of
the total voting power of shares of Capital Stock entitled
(without regard
to the occurrence of any contingency) to vote in the
election of
directors, managers or trustees of the corporation, association
or other
business entity is at the time owned or controlled, directly or
indirectly, by
that Person or one or more of the other Subsidiaries of that
Person (or a
combination thereof); and
(2) any partnership
(a) the sole general partner or the managing
general partner
of which is such Person or a Subsidiary of such Person or
(b) the only
general partners of which are that Person or one or more
Subsidiaries of
that Person (or any combination thereof).
"Subsidiary
Guarantee" means a Guarantee by a direct or indirect Restricted
Subsidiary of the Company's obligations
with respect to the Notes and under this
Indenture, executed pursuant to the
provisions of this Indenture.
"Subsidiary
Guarantor" means a direct or indirect Restricted Subsidiary of
the Company that has issued a Subsidiary
Guarantee.
"TIA" means the
Trust Indenture Act of 1939 as in force at the date as of
which this Indenture is executed; provided
that in the event the Trust Indenture
Act of 1939 is amended after such date,
"TIA" means, to the extent required by
any such amendment, the Trust Indenture Act
of 1939 as so amended.
"Trustee" means
the party named as such in the preamble to this Indenture
until a successor replaces it in accordance
with the applicable provisions of
this Indenture and thereafter means the
successor serving hereunder.
"Unrestricted
Subsidiary" means each Subsidiary of the Company that is
designated by the Board of Directors of the
Company as an Unrestricted
Subsidiary pursuant to a Board Resolution,
but only to the extent that each such
Subsidiary:
(1) has no
Indebtedness other than Non-Recourse Debt;
(2) is not party to
any agreement, contract, arrangement or
understanding
with the Company or any Restricted Subsidiary of the Company
unless the terms
of any such agreement,
20
<PAGE>
contract,
arrangement or understanding are no less favorable to the
Company
or such
Restricted Subsidiary than those that might be obtained at the
time
from Persons who
are not Affiliates of the Company;
(3) is a Person with
respect to which neither the Company nor any of
its Restricted
Subsidiaries has any direct or indirect obligation (a) to
subscribe for
additional Equity Interests or (b) to maintain or preserve
such Person's
financial condition or to cause such Person to achieve any
specified levels
of operating results; and
(4) has not guaranteed
or otherwise directly or indirectly provided
credit support
for any Indebtedness of the Company or any of its Restricted
Subsidiaries.
Any designation
of a Subsidiary of the Company as an Unrestricted
Subsidiary shall be evidenced by a Board
Resolution of the Company and an
Officers' Certificate certifying that such
designation complied with the
preceding conditions and was permitted by
Section 4.07 hereof. If, at any time,
any Unrestricted Subsidiary would fail to
meet the preceding requirements as an
Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture
and any Indebtedness of such
Subsidiary shall be deemed to be incurred
by a Restricted Subsidiary of the
Company as of such date and, if such
Indebtedness is not permitted to be
incurred as of such date under Section 4.09
hereof, the Company shall be in
default of Section 4.09 hereof. The Board
of Directors of the Company may at any
time designate any Unrestricted Subsidiary
to be a Restricted Subsidiary;
provided that such designation shall be
deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of
the Company of any outstanding
Indebtedness of such Unrestricted
Subsidiary and such designation shall only be
permitted if (1) such Indebtedness is
permitted under Section 4.09 hereof,
calculated on a pro forma basis as if such
designation had occurred at the
beginning of the four-quarter reference
period; and (2) no Default or Event of
Default would be in existence following
such designation.
"Vice
President", when used with respect to the Company or the
Trustee,
means any vice president, whether or not
designated by a number or a word or
words added before or after the title "vice
president".
"Voting Stock"
of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote
in the election of the Board of
Directors of such Person.
"Weighted
Average Life to Maturity" means, when applied to any
Indebtedness
at any date, the number of years obtained
by dividing:
(1) the sum of the
products obtained by multiplying (a) the amount of
each then
remaining installment, sinking fund, serial maturity or other
required
payments of principal, including payment at final maturity, in
respect of the
Indebtedness, by (b) the number of years (calculated to the
nearest
one-twelfth) that will elapse between such date and the making
of
such payment;
by
(2) the then
outstanding principal amount of such Indebtedness.
"Wholly Owned
Subsidiary" of any specified Person means a Subsidiary of
such Person all of the outstanding Capital
Stock or other ownership interests of
which (other than directors' qualifying
shares) shall at the time be owned by
such Person and/or by one or more Wholly
Owned Subsidiaries of such Person.
21
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Section 1.02 Other Definitions.
Defined in
Term
Section
----------------------------------------------------------------
-------------
"Affiliate
Transaction"......................................... 4.11
"Agent
Members".................................................
2.05
"Asset Sale
Offer"..............................................
3.08
"Change of Control
Offer".......................................
4.14
"Change of Control
Payment".....................................
4.14
"Change of Control Payment
Date"................................
4.14
"Covenant
Defeasance"...........................................
8.03
"Defaulted
Interest"............................................
2.07
"Event of
Default"..............................................
6.01
"Excess
Proceeds"...............................................
4.10
"Fall Away
Event"...............................................
4.18
"incur".........................................................
4.09
"Legal
Defeasance"..............................................
8.02
"Offer
Amount"..................................................
3.08
"Offer
Period"..................................................
3.08
"Payment
Default"...............................................
6.01
"Permitted
Debt"................................................
4.09
"Purchase
Date".................................................
3.08
"Register"......................................................
2.05
"Registrar".....................................................
2.05
"Restricted
Payments"...........................................
4.07
"Special Payment
Date"..........................................
2.07
Section 1.03 Rules of Construction.
For all purposes
of this Indenture, except as otherwise expressly provided
or unless the context otherwise
requires:
(a) a term has the meaning assigned to
it;
(b) all other terms used herein which
are defined in the TIA, either
directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise
defined herein have the meanings
assigned to them in accordance with
GAAP;
(d) words in the singular include the
plural and words in the plural
include the singular;
(e) the words "herein," "hereof" and
"hereunder" and other words of
similar import refer to this Indenture as a
whole and not to any particular
Article, Section or other subdivision;
(f) "or" is not exclusive;
(g) "including" means including
without limitation;
(h) references to the payment of
principal of the Notes shall include
applicable premium, if any;
22
<PAGE>
(i) all references to $, US$, dollars
or United States dollars shall refer
to the lawful currency of the United States
of America; and
(j) all references herein to
particular Sections or Articles refer to this
Indenture unless otherwise so
indicated.
ARTICLE 2.
THE NOTES
Section 2.01 Form and Denominations.
The Notes and
the Trustee's certificate of authentication will be
substantially in the form of Exhibit A
hereto, with such appropriate insertions,
omissions, substitutions and other
variations as are required or permitted by
this Indenture, and may have such letters,
numbers or other marks of
identification and such legends or
endorsements placed thereon as may be
required to comply with the rules of any
securities exchange or as may,
consistently herewith, be determined by the
officers executing such Notes, as
evidenced by their execution of the Notes.
The definitive Notes shall be
printed, lithographed or engraved or
produced by any combination of these
methods on steel engraved borders or may be
produced in any other manner
permitted by the rules of any securities
exchange on which the Notes may be
listed, all as determined by the officers
executing such Notes, as evidenced by
their execution of such Notes.
The terms and
provisions contained in the Notes will constitute, and are
hereby expressly made, a part of this
Indenture and the Company and the Trustee,
by their execution and delivery of this
Indenture, expressly agree to such terms
and provisions and to be bound thereby.
However, to the extent any provision of
any Note conflicts with the express
provisions of this Indenture, the provisions
of this Indenture shall govern and be
controlling.
The Notes shall
be issuable only in registered form without coupons and
only in denominations of $1,000 and any
integral multiple thereof.
Section 2.02 Title and Terms.
The aggregate
principal amount of Notes which may be authenticated and
delivered under this Indenture is limited
to $500,000,000 (or such greater
amount as the Company may, from time to
time, without notice to or the consent
of the Holders, designate to the Trustee in
a Company Order instructing the
Trustee to authenticate Additional Notes),
except for Notes authenticated and
delivered upon registration of transfer of,
or in exchange for, or in lieu of,
other Notes pursuant to Section 2.04, 2.05,
2.06, 3.06, 3.08, 4.14 or 9.05
hereof.
The Notes shall
be known and designated as the "7.25% Senior Notes Due
2013" of the Company. The principal of the
Notes shall be payable on August 15,
2013, unless paid earlier upon the
redemption or repurchase of the Notes in
accordance with the terms of this
Indenture, and they shall bear interest at the
rate of 7.25% per annum, from August 12,
2003 or from the most recent Interest
Payment Date to which interest has been
paid or duly provided for, as the case
may be, payable semi-annually on February
15 and August 15, commencing February
15, 2004, until the principal thereof is
paid or made available for payment.
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<PAGE>
The principal of
(and premium, if any) and interest on the Notes shall be
payable at the office or agency of the
Company in the Borough of Manhattan in
The City of New York maintained for such
purpose and at any other office or
agency maintained by the Company for such
purpose; provided that at the option
of the Company payment of interest may be
made by check mailed to the address of
the Person entitled thereto as such address
shall appear in the Register.
The Notes shall
be redeemable as provided in Article 3 hereof.
Section 2.03 Execution, Authentication,
Delivery and Dating.
The Notes shall
be executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its
President or one of its Vice
Presidents, attested by its Secretary or
one of its Assistant Secretaries. The
signature of any of these officers on the
Notes may be manual or facsimile.
Notes bearing
the manual or facsimile signatures of individuals who were at
any time the proper officers of the Company
shall bind the Company,
notwithstanding that such individuals or
any of them have ceased to hold such
offices prior to the authentication and
delivery of such Notes or did not hold
such offices at the date of such Notes.
At any time and
from time to time after the execution and delivery of this
Indenture, the Company may deliver Notes
executed by the Company to the Trustee
for authentication, together with a Company
Order for the authentication and
delivery of such Notes; and the Trustee in
accordance with such Company Order
shall authenticate and deliver such Notes
as in this Indenture provided and not
otherwise.
Each Note shall
be dated the date of its authentication.
No Note shall be
entitled to any benefit under this Indenture or be valid
or obligatory for any purpose unless there
appears on such Note a certificate of
authentication substantially in the form
provided for herein executed by the
Trustee by manual signature, and such
certificate upon any Note shall be
conclusive evidence, and the only evidence,
that such Note has been duly
authenticated and delivered hereunder.
In case the
Company, pursuant to Article 5, shall, in one or more related
transactions, be consolidated or merged
with or into any other Person or shall
sell, assign, transfer, convey or otherwise
dispose of all or substantially all
the properties or assets of the Company and
its Restricted Subsidiaries taken as
a whole to any Person, and the successor
Person resulting from such
consolidation or surviving such merger, or
into which the Company shall have
been merged, or the successor Person which
shall have participated in the sale,
assignment, transfer, conveyance or other
disposition as aforesaid, shall have
assumed all of the obligations of the
Company under the Notes and this Indenture
pursuant to agreements reasonably
satisfactory to the Trustee pursuant to
Article 5, any of the Notes authenticated
or delivered prior to such
consolidation, merger, sale, assignment,
transfer, conveyance or other
disposition may, from time to time, at the
request of the successor Person, be
exchanged for other Notes executed in the
name of the successor Person with such
changes in phraseology and form as may be
appropriate, but otherwise in
substance of like tenor as the Notes
surrendered for such exchange and of like
principal amount; and the Trustee, upon the
request of the successor Person,
shall authenticate and deliver Notes as
specified in such request for the
purpose of such exchange. If Securities
shall at any time be authenticated and
delivered in any new name of a successor
Person pursuant to this Section 2.03 in
exchange or substitution for or upon
registration of transfer of any Notes, such
successor Person, at the option of the
Holders but without expense to them,
shall provide for the exchange of all Notes
at the time Outstanding for Notes
authenticated and delivered in such new
name.
24
<PAGE>
Section 2.04 Temporary Notes.
Pending the
preparation of definitive Notes, the Company may execute, and
upon Company Order the Trustee shall
authenticate and deliver, temporary Notes
which are printed, lithographed,
typewritten, mimeographed or otherwise
produced, in any authorized denomination,
substantially of the tenor of the
definitive Notes in lieu of which they are
issued and with such appropriate
insertions, omissions, substitutions and
other variations as the officers
executing such Notes may determine, as
evidenced by their execution of such
Notes.
If temporary
Notes are issued, the Company will cause definitive Notes to
be prepared without unreasonable delay.
After the preparation of definitive
Notes, the temporary Notes shall be
exchangeable for definitive Notes upon
surrender of the temporary Notes at any
office or agency of the Company
designated pursuant to Section 4.02 hereof,
without charge to the Holder. Upon
surrender for cancellation of any one or
more temporary Notes the Company shall
execute and the Trustee shall authenticate
and deliver in exchange therefor a
like principal amount of definitive Notes
of authorized denominations. Until so
exchanged the temporary Notes shall in all
respects be entitled to the same
benefits under this Indenture as definitive
Notes.
Section 2.05 Registration, Registration
of Transfer and Exchange.
The Company
shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained
in such office and in any other
office or agency designated pursuant to
Section 4.02 hereof being herein
sometimes collectively referred to as the
"Register") in which, subject to such
reasonable regulations as it may prescribe,
the Company shall provide for the
registration of Notes and of transfers of
Notes. The Trustee is hereby appointed
"Registrar" for the purpose of registering
Notes and transfers of Notes as
herein provided.
Upon surrender
for registration of transfer of any Note at an office or
agency of the Company designated pursuant
to Section 4.02 hereof for such
purpose, the Company shall execute, and the
Trustee shall authenticate and
deliver, in the name of the designated
transferee or transferees, one or more
new Notes of any authorized denominations
and of a like aggregate principal
amount. At the option of the Holder, Notes
may be exchanged for other Notes of
any authorized denominations and of a like
aggregate principal amount, upon
surrender of the Notes to be exchanged at
such office or agency. Whenever any
Notes are so surrendered for exchange, the
Company shall execute, and the
Trustee shall authenticate and deliver, the
Notes which the Holder making the
exchange is entitled to receive.
All Notes issued
upon any registration of transfer or exchange of Notes
shall be the valid obligations of the
Company, evidencing the same debt, and
entitled to the same benefits under this
Indenture, as the Notes surrendered
upon such registration of transfer or
exchange.
Every Note
presented or surrendered for registration of transfer or for
exchange shall (if so required by the
Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument
of transfer in form satisfactory to
the Company and the Registrar duly
executed, by the Holder thereof or his
attorney duly authorized in writing.
No service
charge shall be made for any registration of transfer or
exchange of Notes, but the Company may
require payment of a sum sufficient to
cover any tax or other governmental charge
that may be imposed in connection
with any registration of transfer or
exchange of Notes, other than exchanges
pursuant to Section 2.04, 3.06, 3.08, 4.14
or 9.05 hereof not involving any
transfer.
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The Company
shall not be required (i) to issue, register the transfer of or
exchange any Note during a period beginning
at the opening of business 15 days
before the day of the mailing of a notice
of redemption of Notes selected for
redemption under Section 3.02 hereof and
ending at the close of business on the
day of such mailing, or (ii) to register
the transfer of or exchange any Note so
selected for redemption in whole or in
part, except the unredeemed portion of
any Note being redeemed in part.
The provisions
of clauses (a), (b), (c), (d), (e) and (f) below shall apply
only to Global Notes:
(a) Each Global Note authenticated
under this Indenture shall be
registered in the name of the Depositary or
a nominee thereof and delivered to
such Depositary or a nominee thereof or
custodian therefor, and each such Global
Note shall constitute a single Note for all
purposes of this Indenture. Any
Global Note may be represented by more than
one certificate. The aggregate
amount of each Global Note may be increased
or decreased by adjustments made on
the records of the Trustee, as provided in
this Indenture.
(b) Members of, or participants in,
the Depositary ("Agent Members") shall
have no rights under this Indenture with
respect to any Global Note held on
their behalf by the Depositary, or the
Trustee as its custodian, or under such
Global Note, and the Depositary may be
treated by the Company, the Trustee and
any agent of the Company or the Trustee as
the absolute owner of such Global
Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or
any agent of the Company or the
Trustee from giving effect to any written
certification, proxy or other
authorization furnished by the Depositary
or shall impair, as between the
Depositary and its Agent Members, the
operation of customary practices governing
the exercise of the rights of a holder of
any Note.
(c) Notwithstanding any other
provision in this Indenture, no Global Note
may be exchanged in whole or in part for a
Note registered, and no transfer of a
Global Note in whole or in part may be
registered, in the name of any Person
other than the Depositary for such Global
Note or a nominee thereof unless (A)
such Depositary (i) has notified the
Company that it is unwilling or unable to
continue as Depositary for such Global Note
or (ii) has ceased to be a clearing
agency registered under the Exchange Act,
(B) the Company, at its option,
executes and delivers to the Trustee a
Company Order stating that it elects to
cause the issuance of the Notes registered
in the names of the Holders thereof
and that all Global Notes shall be
exchanged in whole for Notes that are not
Global Notes (in which case such exchange
shall be effected by the Trustee), or
(C) there shall have occurred and be
continuing a Default or an Event of
Default.
(d) Subject to clause (b) above, any
exchange of a Global Note for other
Notes may be made in whole or in part, and
all Notes issued in exchange for a
Global Note or any portion thereof shall be
registered in such names as the
Depositary shall direct.
(e) Every Note authenticated and
delivered upon registration of transfer
of, or in exchange for or in lieu of, a
Global Note or any portion thereof,
whether pursuant to this Section 2.05 or
Section 2.06, 3.06, 3.08, 4.14 or 9.05
hereof or otherwise, shall be authenticated
and delivered in the form of, and
shall be, a Global Note, unless such Note
is registered in the name of a Person
other than the Depositary for such Global
Note or a nominee thereof.
(f) Each Global Note will bear a
Global Note Legend in substantially the
following form:
THIS SECURITY IS A GLOBAL NOTE WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE
OR IN PART
26
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FOR A NOTE REGISTERED, AND NO TRANSFER OF
THIS SECURITY IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON
OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section 2.06 Mutilated, Destroyed, Lost and
Stolen Notes.
If any mutilated
Note is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate
and deliver in exchange therefor a
new Note of like tenor and principal amount
and bearing a number not
contemporaneously outstanding.
If there shall
be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss
or theft of any Note and (ii) such
security or indemnity as may be required by
them to save each of them and any
agent of either of them harmless, then, in
the absence of notice to the Company
or the Trustee that such Note has been
acquired by a protected purchaser, the
Company shall execute and the Trustee shall
authenticate and deliver, in lieu of
any such destroyed, lost or stolen Note, a
new Note of like tenor and principal
amount and bearing a number not
contemporaneously outstanding.
In case any such
mutilated, destroyed, lost or stolen Note has become or is
about to become due and payable, the
Company in its discretion may, instead of
issuing a new Note, pay such Note. Upon the
issuance of any new Note under this
Section 2.06, the Company may require the
payment of a sum sufficient to cover
any tax or other governmental charge that
may be imposed in relation thereto and
any other expenses (including the fees and
expenses of the Trustee) connected
therewith.
Every new Note
issued pursuant to this Section 2.06 in lieu of any
destroyed, lost or stolen Note shall
constitute an original additional
contractual obligation of the Company,
whether or not the destroyed, lost or
stolen Note shall be at any time
enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally
and proportionately with any and all
other Notes duly issued hereunder.
The provisions
of this Section 2.06 are exclusive and shall preclude (to
the extent lawful) all other rights and
remedies with respect to the replacement
or payment of mutilated, destroyed, lost or
stolen Note.
Section 2.07 Payment of Interest;
Interest Rights Preserved.
Interest on any
Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date
shall be paid to the Person in whose
name that Note (or one or more Predecessor
Notes) is registered at the close of
business on the Regular Record Date for
such interest. Any interest on any Note
which is payable, but is not punctually
paid or duly provided for, on any
Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease
to be payable to the Holder on the relevant
Regular Record Date by virtue of
having been such Holder, and such Defaulted
Interest may be paid by the Company,
at its election in each case, as provided
in Clause (1) or (2) below:
(1)
The Company may elect
to make payment of any Defaulted Interest
to the Persons
in whose names the Notes (or their respective Predecessor
Notes) are
registered at the close of business on a Special Record Date
for
the payment of
such Defaulted Interest, which shall be fixed in the
following
manner. The Company shall notify the Trustee in writing of the
amount of
Defaulted Interest proposed to be paid on each Note and the
date
of the proposed
payment (the "Special Payment Date"), and at the same time
the Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount
proposed to be paid in respect of such Defaulted Interest
or shall make
arrangements satisfactory to the Trustee for such deposit
prior to
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<PAGE>
the Special
Payment Date, such money when deposited to be held in trust for
the benefit of
the Persons entitled to such Defaulted Interest as in this
Clause provided.
Thereupon the Trustee shall fix a Special Record Date for
the payment of
such Defaulted Interest which shall be not more than 15 days
and not less
than 10 days prior to the Special Payment Date and not less
than 10 days
after the receipt by the Trustee of the notice of the proposed
payment. The
Trustee shall promptly notify the Company of such Special
Record Date and,
in the name and at the expense of the Company, shall cause
notice of the
proposed payment of such Defaulted Interest and the Special
Record Date
therefor to be mailed, first-class postage prepaid, to each
Holder at his
address as it appears in the Register, not less than 10 days
prior to such
Special Record Date. Notice of the proposed payment of such
Defaulted
Interest and the Special Record Date therefor having been so
mailed, such
Defaulted Interest shall be paid to the Persons in whose names
the Notes (or
their respective Predecessor Notes) are registered at the
close of
business on such Special Record Date and shall no longer be
payable pursuant
to the following Clause (2).
(2) The Company may
make payment of any Defaulted Interest in any
other lawful
manner not inconsistent with the requirements of any
securities
exchange on which the Notes may be listed, and upon such notice
as may be
required by such exchange, if, after notice given by the
Company
to the Trustee
of the proposed payment pursuant to this Clause, such manner
of payment shall
be deemed practicable by the Trustee. Subject to the
foregoing
provisions of this Section 2.07, each Note delivered under this
Indenture upon
registration of transfer of or in exchange for or in lieu of
any other Note
shall carry the rights to interest accrued and unpaid, and
to accrue, which
were carried by such other Note.
Notwithstanding
anything to the contrary contained in this Indenture, the
Company may, to the extent required to do
so by law, deduct or withhold income
or other similar taxes imposed by the
United States of America from principal or
interest payments under this Indenture.
Section 2.08 Persons Deemed Owners.
Prior to due
presentment of a Note for registration of transfer, the
Company, the Trustee and any agent of the
Company or the Trustee may treat the
Person in whose name such Note is
registered as the owner of such Note for the
purpose of receiving payment of principal
of (and premium, if any) and (subject
to Section 2.07 hereof) interest on such
Note and for all other purposes
whatsoever, whether or not such Note be
overdue, and neither the Company, the
Trustee nor any agent of the Company or the
Trustee shall be affected by notice
to the contrary.
Section 2.09 Cancellation.
All Notes
surrendered for payment, redemption, registration of transfer
or
exchange shall, if surrendered to any
Person other than the Trustee, be
delivered to the Trustee and shall be
promptly cancelled by it. The Company may
at any time deliver to the Trustee for
cancellation any Notes previously
authenticated and delivered hereunder which
the Company may have acquired in any
manner whatsoever, and all Notes so
delivered shall be promptly cancelled by the
Trustee. No Notes shall be authenticated in
lieu of or in exchange for any Notes
cancelled as provided in this Section 2.09,
except as expressly permitted by
this Indenture. All cancelled Notes held by
the Trustee shall be destroyed and
certification of their destruction
delivered to the Company, unless by a Company
Order received by the Trustee prior to such
destruction, the Company shall
direct that the cancelled Notes be returned
to it. The Trustee shall provide the
Company a list of all Notes that have been
cancelled from time to time as
requested by the Company.
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<PAGE>
Section 2.10 Computation of Interest.
Interest on the
Notes shall be computed on the basis of a 360-day year of
twelve 30-day months.
Section 2.11 Paying Agent to Hold Money
in Trust.
The Company will
require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold
in trust for the benefit of Holders
or the Trustee all money held by the Paying
Agent for the payment of principal
of, or any premium or interest, on the
Notes, and will notify the Trustee of any
default by the Company in making any such
payment. While any such default
continues, the Trustee may require a Paying
Agent to pay all money held by it to
the Trustee. The Company at any time may
require a Paying Agent to pay all money
held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent
(if other than the Company or a Subsidiary
of the Company) will have no further
liability for the money. If the Company or
a Subsidiary of the Company acts as
Paying Agent, it will segregate and hold in
a separate trust fund for the
benefit of the Holders all money held by it
as Paying Agent. Upon any bankruptcy
or reorganization proceedings relating to
the Company, the Trustee will serve as
Paying Agent for the Notes.
Section 2.12 CUSIP Numbers.
The Company in
issuing the Notes may use "CUSIP" numbers (if then generally
in use), and the Trustee, on behalf of the
Company, shall use such CUSIP 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 of such numbers either as
printed on the Notes or as contained in
any notice of redemption or exchange and
that reliance may be placed only on the
other identification numbers printed on the
Notes; and provided further,
however, that failure to use CUSIP numbers
in any notice of redemption or
exchange shall not affect the validity or
sufficiency of such notice.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee.
If the Company
elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it must
furnish to the Trustee, at least 30
days but not more than 60 days before a
redemption date a certificate setting
forth:
(1) the clause of this
Indenture pursuant to which the
redemption shall
occur;
(2) the redemption
date;
(3) the principal
amount of Notes to be redeemed; and
(4) the redemption
price.
Section 3.02 Selection of Notes to Be
Redeemed.
If less than all
of the Notes are to be redeemed, the Trustee will select
Notes for redemption as follows:
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<PAGE>
(1) if the Notes are
listed on any national securities exchange, in
compliance with
the requirements of the principal national securities
exchange on
which the Notes are listed; or
(2) if the Notes are
not listed on any national securities exchange,
on a pro rata
basis, by lot or by such method as the Trustee shall deem
fair and
reasonable.
In the event of
partial redemption by lot, the particular Notes to be
redeemed will be selected not less than 30
days nor more than 60 days prior to
the redemption date by the Trustee from the
Outstanding Notes not previously
called for redemption.
The Trustee will
promptly notify the Company in writing of the Notes
selected for redemption and, in the case of
any Note selected for partial
redemption, the principal amount thereof to
be redeemed. No Notes of $1,000 or
less may 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
Company shall mail or cause to be mailed,
by first class mail, a notice of
redemption to each Holder whose Notes are
to be redeemed at its registered
address.
The notice shall
identify the Notes to be redeemed and shall state:
(1) the redemption
date;
(2) the redemption
price (or the method of calculation);
(3) if any Note is
being redeemed in part, the portion of the
principal amount
of such Note to be redeemed and that, after the redemption
date upon
surrender of such Note, a new Note or Notes in principal amount
equal to the
unredeemed portion shall be issued upon cancellation of the
original
Note;
(4) the name and
address of the Paying Agent;
(5) that Notes called
for redemption must be surrendered to the
Paying Agent to
collect the redemption price; and
(6) that, unless the
Company defaults in making such redemption
payment,
interest on Notes called for redemption ceases to accrue on and
after the
redemption date.
At the Company's
request (which may be revoked at any time prior to the
time at which the Trustee shall have given
such notice to the Holders), the
Trustee will give the notice of redemption
in the Company's name and at its
expense; provided that the Company shall
have delivered to the Trustee, at least
45 days prior to the redemption date
(unless the Trustee is satisfied with a
shorter period), a Company Order requesting
that the Trustee give such notice
and setting forth the information to be
stated in such notice as provided in the
preceding paragraph.
The notice if
mailed in the 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 as a whole or in part shall not
affect the validity of the proceedings for
the redemption of any other Note.
30
<PAGE>
Section 3.04 Effect of Notice of
Redemption.
Once notice of
redemption is mailed in accordance with Section 3.03 hereof,
Notes called for redemption become
irrevocably due and payable on the redemption
date at the redemption price. A notice of
redemption may not be conditional.
Such notice if mailed in the manner herein
provided shall be conclusively
presumed to have been given, whether or not
the Holder receives such notice.
Section 3.05 Deposit of Redemption
Price.
On or one
Business Day prior to the redemption date, the Company shall
deposit with the Trustee or with the Paying
Agent an amount of money sufficient
to pay the redemption price of and accrued
interest, if any, on all Notes to be
redeemed on that date. All money, if any,
earned on funds held in trust by the
Trustee or any Paying Agent shall be
remitted to the Company. In addition, the
Trustee or the Paying Agent shall promptly
return to the Company any money
deposited with the Trustee or the Paying
Agent by the Company in excess of the
amounts necessary to pay the redemption
price of, and accrued interest, if any,
on, all Notes to be redeemed.
If the Company
complies with the provisions of the preceding paragraph, on
and after the redemption date, interest
will cease to accrue on the Notes or the
portions of Notes called for redemption. If
any Note called for redemption is
not so paid upon surrender for redemption
because of the failure of the Company
to comply with the preceding paragraph,
interest shall be paid on the unpaid
principal, from the redemption date until
such principal is paid, and to the
extent lawful on any interest not paid on
such unpaid principal, in each case at
the rate provided in the Notes and in
Section 4.01 hereof.
Section 3.06 Notes Redeemed in Part.
Upon surrender
of a Note that is redeemed in part, the Company will issue
and the Trustee will authenticate for the
Holder at the expense of the Company a
new Note or Notes in authorized
denominations equal in principal amount to the
unredeemed portion of the Note
surrendered.
Section 3.07 Optional Redemption.
The Company may
at any time at its option redeem all or part of the Notes
upon not less than 30 days' nor more than
60 days' prior notice at a redemption
price equal to the greater of (1) 100% of
the principal amount of the Notes
being redeemed and (2) as determined by the
Quotation Agent, the sum of the
present values of 100% of the principal
amount of the Notes being redeemed, plus
all scheduled payments of interest on such
Notes to and including August 15,
2013 (but not including accrued and unpaid
interest to the redemption date), in
each case discounted to the redemption date
on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day
months) at the Adjusted Treasury Rate
plus 50 basis points, together in each case
with accrued and unpaid interest to
the applicable redemption date.
Section 3.08 Offer to Purchase by
Application of Excess Proceeds.
In the event
that the Company is required to commence an offer to all
Holders to purchase Notes pursuant to
Section 4.10 hereof (an "Asset Sale
Offer"), it shall follow the procedures
specified below.
The Asset Sale
Offer shall be made to all Holders of Notes, and at the
Company's option, to all holders of other
Indebtedness that is pari passu with,
or subordinate in right of payment to, the
Notes. The Asset Sale Offer shall
remain open for a period of at least 20
Business Days, and not more than 30
Business Days, following its commencement,
except to the extent that a longer
period is required by applicable law (the
"Offer Period"). No later than three
Business Days after the termination of the
Offer
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Period (the "Purchase Date"), the Company
shall apply all Excess Proceeds (the
"Offer Amount") to the purchase of Notes
and such other Indebtedness in the
manner required by Section 4.10 hereof.
Upon the
commencement of an Asset Sale Offer, the Company will send, by
first class mail, a notice to each of the
Holders, with a copy to the Trustee,
containing all instructions and materials
necessary to enable such Holders to
tender Notes pursuant to the Asset Sale
Offer. The notice, which will govern the
terms of the Asset Sale Offer, will
state:
(1) that the Asset
Sale Offer is being made pursuant to this Section
3.08 and Section
4.10 hereof and the length of time the Asset Sale Offer
will remain
open;
(2) the Offer Amount,
the purchase price and the Purchase Date;
(3) that any Note not
tendered or not accepted for payment will
continue to
accrue interest;
(4) that, unless the
Company defaults in making such payment, any
Note accepted
for payment pursuant to the Asset Sale Offer will cease to
accrue interest
after the Purchase Date;
(5) that Holders
electing to have a Note purchased pursuant to an
Asset Sale Offer
may elect to have Notes purchased in integral multiples of
$1,000 only;
(6) that Holders
electing to have a Note purchased pursuant to any
Asset Sale Offer
will be required to surrender the Note, with the form
entitled "Option
of Holder to Elect Purchase" attached to the Note, in the
form of Annex B
thereto, completed, to the Company, a depositary, if
appointed by the
Company, or a Paying Agent at the address specified in the
notice at least
three Business Days before the Purchase Date;
(7) that Holders will
be entitled to withdraw their election by
delivery to the
Company, the depositary or the Paying Agent, as the case
may be, not
later than the expiration of the Offer Period, a telegram,
telex, facsimile
transmission or letter setting forth the name of the
Holder, the
principal amount of the Note the Holder delivered for purchase
and a statement
that such Holder is withdrawing his election to have such
Note
purchased;
(8) that, if the
aggregate principal amount of Notes and other
Indebtedness (or
accreted value, as applicable) surrendered by Holders
exceeds the
Offer Amount, the Excess Proceeds will be applied in the
following way:
(a) first, the Excess Proceeds will be applied to purchase
the Notes and
other pari passu Indebtedness tendered for purchase, on a pro
rata basis (if
the aggregate principal amount of such Notes and pari passu
Indebtedness
exceeds the amount of Excess Proceeds), and (b) second, if and
to the extent
any Excess Proceeds remain after the purchase of all of the
Notes and other
pari passu Indebtedness tendered for purchase, the
remaining Excess
Proceeds will be applied to purchase any subordinated
Indebtedness
tendered for purchase, on a pro rata basis (with such
adjustments as
may be deemed appropriate by the Company so that only Notes
in denominations
of $1,000, or integral multiples thereof, will be
purchased);
and
(9) that Holders whose
Notes were purchased only in part will be
issued new Notes
in authorized denominations equal in principal amount to
the unpurchased
portion of the Notes surrendered.
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<PAGE>
On or before the
Purchase Date, the Company shall, to the extent lawful,
accept for payment, on a pro rata basis to
the extent necessary, the Offer
Amount of Notes and other pari passu
Indebtedness or portions thereof tendered
pursuant to the Asset Sale Offer, or if
less than the Offer Amount of Notes and
other pari passu Indebtedness has been
tendered, all Notes tendered, and shall
deliver to the Trustee an Officers'
Certificate stating that such Notes or
portions thereof were accepted for payment
by the Company in accordance with the
terms of this Section 3.08 and Section
4.10(c) hereof. The Company, the
depositary or the Paying Agent, as the case
may be, shall promptly (but in any
case not later than five days after the
Purchase Date) mail or deliver to each
tendering Holder an amount equal to the
purchase price of the Notes tendered by
such Holder and accepted by the Company for
purchase, and the Company shall
promptly issue a new Note or Notes in
authorized denominations, and the Trustee,
upon written request from the Company will
authenticate and mail or deliver such
new Note or Notes to such Holder, in a
principal amount equal to any unpurchased
portion of the Note surrendered. The
Trustee and the Paying Agent shall return
to the Company any cash that remains
unclaimed, together with interest, if any,
thereon, held by them for the payment of
the offer price. Any Note not so
accepted shall be promptly mailed or
delivered by the Company to the Holder
thereof. The Company will publicly announce
the results of the Asset Sale Offer
as soon as reasonably practicable on or
after the Purchase Date.
ARTICLE 4.
COVENANTS
Section 4.01 Payment of Notes.
The Company
shall pay or cause to be paid the principal of, and any premium
and interest on, the Notes on the dates and
in the manner provided in the Notes.
Principal and any premium and interest will
be considered paid on the date due
if the Paying Agent, if other than the
Company or a Subsidiary thereof, holds as
of 10:00 a.m. Eastern Time on the due date
money deposited by the Company in
im
