================================================================================
HEALTHSOUTH CORPORATION,
as Issuer,
and
THE BANK OF NEW YORK, as Trustee
-----------------------
INDENTURE
Dated as of February 1, 2001
-----------------------
8 1/2% Senior Notes due 2008, Series A
8 1/2% Senior Notes due 2008, Series B
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<PAGE>
CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
TIA Indenture
Section Section
------- --------
<S> <C> <C>
310(a)(1)....................................................................... 7.10
(a)(2)....................................................................... 7.10
(a)(3)....................................................................... N.A.
(a)(4)....................................................................... N.A
(a)(5)....................................................................... 7.10
(b).......................................................................... 7.08; 7.10; 11.02
(c).......................................................................... N.A.
311(a).......................................................................... 7.11
(b).......................................................................... 7.11
(c).......................................................................... N.A.
312(a).......................................................................... 2.05
(b).......................................................................... 11.03
(c).......................................................................... 11.03
313(a).......................................................................... 7.06
(b)(1)....................................................................... 7.06
(b)(2)....................................................................... 7.06
(c).......................................................................... 7.06; 11.02
(d).......................................................................... 7.06
314(a).......................................................................... 4.02; 4.08; 11.02
(b).......................................................................... N.A.
(c)(1)....................................................................... 11.04; 11.05
(c)(2)....................................................................... 11.04; 11.05
(c)(3)....................................................................... N.A.
(d).......................................................................... N.A.
(e).......................................................................... 11.05
(f).......................................................................... N.A.
315(a).......................................................................... 7.01; 7.02
(b).......................................................................... 7.05; 11.02
(c).......................................................................... 7.01
(d).......................................................................... 6.05; 7.01; 7.02
(e).......................................................................... 6.11
316(a) (last sentence).......................................................... 2.09
(a)(1)(A).................................................................... 6.05
(a)(1)(B).................................................................... 6.04
(a)(2)....................................................................... 8.02
(b).......................................................................... 6.07
(c).......................................................................... 8.04
317(a)(1)....................................................................... 6.08
(a)(2)....................................................................... 6.09
(b).......................................................................... 2.04
318(a).......................................................................... 11.01
</TABLE>
N.A. means Not Applicable
--------------------
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
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ARTICLE 1
DEFINITIONS
<S> <C> <C>
Section 1.01. Definitions....................................................................1
Section 1.02. Other Definitions.............................................................15
Section 1.03. Incorporation by Reference of Trust Indenture Act.............................16
Section 1.04. Rules of Construction.........................................................16
ARTICLE 2
THE NOTES
Section 2.01. Dating; Incorporation of Form in Indenture; Form of Notes.....................16
Section 2.02. Execution and Authentication; Appointment of Authenticating Agent.............17
Section 2.03. Registrar and Paying Agent....................................................18
Section 2.04. Paying Agent To Hold Money in Trust...........................................18
Section 2.05. Holder Lists..................................................................19
Section 2.06. [Intentionally Omitted].......................................................19
Section 2.07. Replacement Notes.............................................................19
Section 2.08. Outstanding Notes.............................................................19
Section 2.09. Treasury Notes................................................................20
Section 2.10. Temporary Notes...............................................................20
Section 2.11. Cancellation..................................................................20
Section 2.12. Defaulted Interest............................................................20
Section 2.13. Deposit of Moneys; Payments...................................................21
Section 2.14. "CUSIP" Number................................................................21
Section 2.15. Depositary....................................................................21
Section 2.16. Registration of Transfers and Exchanges.......................................22
Section 2.17. Restrictive Legends...........................................................29
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee............................................................30
Section 3.02. Selection of Notes To Be Redeemed.............................................30
Section 3.03. Notice of Redemption..........................................................31
Section 3.04. Effect of Notice of Redemption................................................32
Section 3.05. Deposit of Redemption Price...................................................32
Section 3.06. Notes Redeemed in Part........................................................33
</TABLE>
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ARTICLE 4
COVENANTS
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Section 4.01. Payment of Notes..............................................................33
Section 4.02. Reports.......................................................................33
Section 4.03. Waiver of Stay, Extension or Usury Laws.......................................33
Section 4.04. Compliance Certificate; Notice of Default; Tax Information....................34
Section 4.05. Payment of Taxes and Other Claims.............................................34
Section 4.06. Corporate Existence...........................................................35
Section 4.07. Maintenance of Office or Agency...............................................35
Section 4.08. Compliance with Laws..........................................................35
Section 4.09. Maintenance of Properties and Insurance.......................................36
Section 4.10. Limitation on Restricted Payments.............................................36
Section 4.11. Limitation on Additional Indebtedness and Subsidiary Preferred Stock..........37
Section 4.12. Limitation on Asset Sales.....................................................38
Section 4.13. Limitation on Transactions with Affiliates....................................41
Section 4.14. Limitation on Liens...........................................................41
Section 4.15. Purchase of Notes upon a Change of Control....................................42
Section 4.16. Limitation on Restrictions on Distributions from Subsidiaries.................43
Section 4.17. Limitations on Layering Indebtedness..........................................44
ARTICLE 5
SURVIVING ENTITY
Section 5.01. Limitations on Mergers and Consolidations.....................................44
Section 5.02. Successor Substituted.........................................................44
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.............................................................45
Section 6.02. Acceleration..................................................................46
Section 6.03. Other Remedies................................................................47
Section 6.04. Waiver of Existing Defaults and Events of Default.............................47
Section 6.05. Control by Majority...........................................................48
Section 6.06. Limitation on Suits...........................................................48
Section 6.07. Rights of Holders To Receive Payment..........................................49
Section 6.08. Collection Suit by Trustee....................................................49
Section 6.09. Trustee May File Proofs of Claim..............................................49
Section 6.10. Priorities....................................................................49
Section 6.11. Undertaking for Costs.........................................................50
</TABLE>
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ARTICLE 7
TRUSTEE
<S> <C> <C>
Section 7.01. Duties of Trustee.............................................................50
Section 7.02. Rights of Trustee.............................................................51
Section 7.03. Individual Rights of Trustee..................................................52
Section 7.04. Trustee's Disclaimer..........................................................53
Section 7.05. Notice of Defaults............................................................53
Section 7.06. Reports by Trustee to Holders.................................................53
Section 7.07. Compensation and Indemnity....................................................53
Section 7.08. Replacement of Trustee........................................................54
Section 7.09. Successor Trustee by Consolidation, Merger or Conversion......................55
Section 7.10. Eligibility; Disqualification.................................................55
Section 7.11. Preferential Collection of Claims Against Company.............................56
ARTICLE 8
MODIFICATIONS, AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders....................................................56
Section 8.02. With Consent of Holders.......................................................57
Section 8.03. Compliance with TIA...........................................................58
Section 8.04. Revocation and Effect of Consents.............................................58
Section 8.05. Notation on or Exchange of Notes..............................................58
Section 8.06. Trustee To Sign Amendments, etc...............................................59
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Satisfaction and Discharge of Indenture.......................................59
Section 9.02. Legal Defeasance..............................................................60
Section 9.03. Covenant Defeasance...........................................................60
Section 9.04. Conditions to Legal Defeasance or Covenant Defeasance.........................61
Section 9.05. Application of Trust Money....................................................62
Section 9.06. Repayment to the Company......................................................62
Section 9.07. Reinstatement.................................................................63
</TABLE>
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ARTICLE 10
[INTENTIONALLY OMITTED]
ARTICLE 11
MISCELLANEOUS
<S> <C> <C>
Section 11.01. TIA Controls..................................................................63
Section 11.02. Notices.......................................................................63
Section 11.03. Communications by Holders with Other Holders..................................64
Section 11.04. Certificate and Opinion as to Conditions Precedent............................64
Section 11.05. Statements Required in Certificate and Opinion................................65
Section 11.06. Rules by Trustee and Agents...................................................65
Section 11.07. Business Days; Legal Holidays.................................................65
Section 11.08. Governing Law.................................................................65
Section 11.09. Waiver of Trial by Jury.......................................................65
Section 11.10. Submission to Jurisdiction....................................................66
Section 11.11. No Adverse Interpretation of Other Agreements.................................66
Section 11.12. No Recourse Against Others....................................................66
Section 11.13. Successors....................................................................66
Section 11.14. Multiple Counterparts.........................................................66
Section 11.15. Table of Contents, Headings, etc..............................................66
Section 11.16. Separability..................................................................66
Section 11.17. Translation...................................................................67
SIGNATURES.....................................................................................S-1
EXHIBITS
Exhibit A Form of Initial Notes
Exhibit B Form of Exchange Notes
Exhibit C Form of Rule 144A Transfer Certificate
Exhibit D Form of Regulation S Transfer Certificate
Exhibit E Form of Rule 144 Transfer Certificate
Exhibit F Form of Accredited Investor Transfer Certificate
iv
</TABLE>
<PAGE>
INDENTURE, dated as of February 1, 2001, between HEALTHSOUTH
CORPORATION, a corporation incorporated in Delaware (the "Company"), as Issuer,
and The Bank of New York, a New York banking corporation, as Trustee (the
"Trustee").
The Company has duly authorized the creation of an issue of
Series A 8 1/2% Senior Notes due 2008 and Series B 8 1/2% Senior Notes due 2008
and, to provide therefor, the Company has duly authorized the execution and
delivery of this Indenture. All things necessary to make the Notes, when duly
issued and executed by the Company, and authenticated and delivered hereunder,
the valid obligations of the Company, and to make this Indenture a valid and
binding agreement of the Company, have been done.
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions.
-----------
"2000 Credit Agreement" means the Credit Agreement dated as of
October 31, 2000 by and among the Company, as borrower, UBS AG, Stamford Branch,
as Administrative Agent, Deutsche Bank AG New York Branch, as Syndication Agent,
the lenders party thereto from time to time, UBS Warburg LLC and Deutsche Bank
Securities Inc., as Joint Lead Arrangers, and The Industrial Bank of Japan,
Limited, as Documentation Agent, together with the related documents thereto,
including, without limitation, any security documents, if any, and all exhibits
and schedules thereto and any agreement or agreements relating to any extension,
refunding, refinancing, successor or replacement facility, whether or not with
the same lender, and whether or not the principal amount or amount of letters of
credit outstanding thereunder or the interest rate payable in respect thereof
shall be thereby increased, in each case as amended and in effect from time to
time.
"Acquired Indebtedness" means (i) with respect to any Person
that becomes a Subsidiary of the Company after the Issue Date, Indebtedness of
such Person and its Subsidiaries existing at the time such Person becomes a
Subsidiary of the Company and (ii) with respect to the Company or any of its
Subsidiaries, any Indebtedness assumed by the Company or any of its Subsidiaries
in connection with the acquisition of an asset from another Person.
"Additional Interest" has the meaning provided to such term in
the Registration Rights Agreement.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling, controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
<PAGE>
"Agent" means any Registrar, Paying Agent, co-Registrar,
authenticating agent or agent for service of notices and demands.
"Asset Sale" for any Person means the sale, lease, conveyance
or other disposition (including, without limitation, by merger or consolidation,
and whether by operation of law or otherwise) of any of that Person's assets
(including, without limitation, the sale or other disposition of Capital Stock
of any Subsidiary of such Person, whether by such Person or by such Subsidiary),
whether owned on the Issue Date or subsequently acquired, in one transaction or
a series of related transactions, in which such Person and/or its Subsidiaries
sell, lease, convey or otherwise dispose of: (i) all or substantially all of the
Capital Stock of any of such Person's Subsidiaries; (ii) assets which constitute
all or substantially all of any division or line of business of such Person or
any of its Subsidiaries; or (iii) any other assets of such Person or any of its
Subsidiaries, other than in the ordinary course of business, provided, that the
Fair Market Value thereof shall be at least 1% of Consolidated Tangible Assets;
provided, however, that the following shall not constitute Asset Sales: (a)
transactions between the Company and any of its Wholly Owned Subsidiaries or
among such Wholly Owned Subsidiaries; (b) any transaction not prohibited by
Section 4.10 hereof or that constitutes a Permitted Investment; (c) any transfer
of assets (including Capital Stock) that is governed by and in accordance with
Article 5 hereof or the creation of any Lien not prohibited by Section 4.14
hereof; or (d) sales of damaged, worn-out or obsolete equipment or assets that,
in the Company's reasonable judgment, are no longer either used or useful in the
business of the Company or its Subsidiaries.
"Attributable Indebtedness" when used with respect to any Sale
and Leaseback Transaction means, as at the time of determination, the present
value (discounted at a rate equivalent to the interest rate implicit in the
lease, compounded on a semiannual basis) of the total obligations of the lessee
for rental payments, after excluding all amounts required to be paid on account
of maintenance and repairs, insurance, taxes, utilities and other similar
expenses payable by the lessee pursuant to the terms of the lease, during the
remaining term of the lease included in any such Sale and Leaseback Transaction
or until the earliest date on which the lessee may terminate such lease without
penalty or upon payment of a penalty (in which case the rental payments shall
include such penalty); provided, that the Attributable Indebtedness with respect
to a Sale and Leaseback Transaction shall be no less than the fair market value
of the property subject to such Sale and Leaseback Transaction.
"Bank Debt" means all obligations of the Company and its
Subsidiaries, now or hereafter existing under (i) the Credit Agreements, whether
for principal, interest, reimbursement of amounts drawn under letters of credit
issued pursuant thereto, guarantees in respect thereof, fees, expenses,
premiums, indemnities or otherwise, and (ii) any Indebtedness incurred by the
Company to extend, refund or refinance, in whole or in part, the Bank Debt,
including any interest and premium on any such Indebtedness.
"Board of Directors" means, with respect to any Person, the
board of directors or similar governing body of such Person or any duly
authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant Secretary of such
Person to have been duly adopted by the Board of Directors of such Person and to
be in full force and effect on the date of such certification and delivered to
the Trustee.
2
<PAGE>
"Capital Stock" of any Person means any and all shares, rights
to purchase, warrants or options (whether or not currently exercisable),
participation or other equivalents of or interest in (however designated) the
equity (including without limitation common stock, preferred stock and
partnership, joint venture and limited liability company interests) of such
Person (excluding any debt securities that are convertible into, or exchangeable
for, such equity).
"Capitalized Lease Obligations" of any Person means the
obligation of such Person to pay rent or other amounts under a lease that is
required to be capitalized for financial reporting purposes in accordance with
GAAP, and the amount of such obligation shall be the capitalized amount thereof
determined in accordance with GAAP.
"Certificated Note" means a Note issued in certificated form
to a Person other than the Depositary.
"Change of Control" means the occurrence of any of the
following: (i) all or substantially all of the Company's assets are sold as an
entirety to any Person or related group of Persons; (ii) there shall be
consummated any consolidation or merger of the Company (A) in which the Company
is not the continuing or surviving corporation (other than a consolidation or
merger with a Wholly Owned Subsidiary of the Company in which all shares of the
Company's Common Equity outstanding immediately prior to the effectiveness
thereof are changed into or exchanged for the same consideration) or (B)
pursuant to which the Company's Common Equity would be converted into cash,
securities or other property, in each case other than a consolidation or merger
of the Company in which the holders of the Company's Common Equity immediately
prior to the consolidation or merger have, directly or indirectly, at least a
majority of the total voting power of all classes of Capital Stock entitled to
vote generally in the election of directors of the continuing or surviving
corporation immediately after such consolidation or merger in substantially the
same proportion as their ownership of the Company's Common Equity immediately
before such transaction; (iii) any Person, or any Persons acting together which
would constitute a "group" for purposes of Section 13(d) of the Exchange Act,
together with any affiliates thereof, shall beneficially own (as defined in Rule
13d-3 under the Exchange Act) at least 50% of the total voting power of all
classes of Capital Stock of the Company entitled to vote generally in the
election of directors of the Company; (iv) at any time during any consecutive
two-year period, individuals who at the beginning of such period constituted the
Board of Directors of the Company (together with any new directors whose
election by such Board of Directors or whose nomination for election by the
stockholders of the Company was approved by a vote of 66-2/3% of the directors
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors of the Company
then in office; or (v) the Company is liquidated or dissolved or adopts a plan
of liquidation or dissolution.
"Commission" 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 Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, the body
performing such duties at the time.
"Common Equity" of any Person means all Capital Stock of such
Person that is generally entitled to (i) vote in the election of directors of
such Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management and policies of such Person.
3
<PAGE>
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces such party pursuant to Article 5
hereof and thereafter means such successor.
"Consolidated Amortization Expense" of any Person for any
period means the amortization expense of such Person and its Subsidiaries for
such period (to the extent included in the computation of Consolidated Net
Income of such Person), determined on a consolidated basis in accordance with
GAAP.
"Consolidated Depreciation Expense" of any Person means the
depreciation expense of such Person and its Subsidiaries for such period (to the
extent included in the computation of Consolidated Net Income of such Person),
determined on a consolidated basis in accordance with GAAP.
"Consolidated EBITDA" of any Person means, with respect to any
determination date, Consolidated Net Income, plus (i) Consolidated Income Tax
Expense, plus (ii) Consolidated Depreciation Expense, plus (iii) Consolidated
Amortization Expense, plus (iv) Consolidated Interest Expense, plus (v) all
other unusual non-cash items or non-recurring non-cash items reducing
Consolidated Net Income of such Person and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP, and less all non-cash items
increasing Consolidated Net Income of such Person and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP, in each case, for
such Person's prior four full fiscal quarters for which financial results have
been reported immediately preceding the determination date.
"Consolidated Income Tax Expense" means, for any Person for
any period, the provision for taxes based on income and profits of such Person
and its Subsidiaries to the extent such provision for income taxes was deducted
in computing Consolidated Net Income of such Person for such period, determined
on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" of any Person for any period
means, without duplication, (i) the Interest Expense of such Person and its
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP, plus (ii) (to the extent not otherwise included within the definition
of Interest Expense as imputed interest) one-third of the rental expense on
Attributable Indebtedness of such Person for such period determined on a
consolidated basis, plus (iii) the dividend requirements of such Person and its
Subsidiaries with respect to Disqualified Stock and with respect to all other
Preferred Stock of Subsidiaries of such Person (in each case whether in cash or
otherwise (except dividends payable solely in shares of Capital Stock (other
than Disqualified Stock) of such Person or such Subsidiary)) paid, accrued or
accumulated during such period times a fraction the numerator of which is one
and the denominator of which is one minus the then effective consolidated
Federal, state and local tax rate of such Person, expressed as a decimal.
"Consolidated Net Income" of any Person for any period means
the net income (or loss) of such Person and its Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP; provided that there
shall be excluded from such net income (to the extent otherwise included
therein), without duplication:
(i) the net income (or loss) of any Person (other than a
Subsidiary of the referent Person) in which any Person other than the
referent Person has an ownership interest, except to the extent that
any such income has actually been received by the referent Person or
any of
4
<PAGE>
its Wholly Owned Subsidiaries in the form of dividends or similar
distributions during such period;
(ii) except to the extent includable in the consolidated net
income of the referent Person pursuant to the foregoing clause (i),
the net income (or loss) of any Person that accrued prior to the date
that (a) such Person becomes a Subsidiary of the referent Person or is
merged into or consolidated with the referent Person or any of its
Subsidiaries or (b) the assets of such Person are acquired by the
referent Person or any of its Subsidiaries;
(iii) the net income of any Subsidiary of the referent Person
(other than a Wholly Owned Subsidiary) to the extent that the
declaration or payment of dividends or similar distributions by such
Subsidiary of that income is not permitted by operation of the terms
of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Subsidiary
during such period;
(iv) any gain (or loss), together with any related provisions for
taxes on any such gain, realized during such period by the referent
Person or any of its Subsidiaries upon (a) the acquisition of any
securities, or the extinguishment of any Indebtedness, of the referent
Person or any of its Subsidiaries or (b) any Asset Sale by the
referent Person or any of its Subsidiaries;
(v) any extraordinary gain or extraordinary loss, together with
any related provision for taxes or tax benefit resulting from any such
extraordinary gain or extraordinary loss, realized by the referent
Person or any of its Subsidiaries during such period; and
(vi) in the case of a successor to such Person by consolidation,
merger or transfer of its assets, any earnings of the successor prior
to such merger, consolidation or transfer of assets.
"Consolidated Net Worth" of any Person as of any date means
the stockholders' equity (including any preferred stock that is classified as
equity under GAAP, other than Disqualified Stock) of such Person and its
Subsidiaries (excluding any equity adjustment for foreign currency translation
for any period subsequent to the Issue Date) on a consolidated basis at such
date, as determined in accordance with GAAP, less all write-ups subsequent to
the Issue Date in the book value of any asset owned by such Person or any of its
Subsidiaries.
"Consolidated Tangible Assets" of any Person as of any date
means the total assets of such Person and its Subsidiaries (excluding any assets
that would be classified as "intangible assets" under GAAP) on a consolidated
basis at such date, as determined in accordance with GAAP, less all write-ups
subsequent to the Issue Date in the book value of any asset owned by such Person
or any of its Subsidiaries.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 101 Barclay Street, Floor 21 West, New York, New York 10286, Attention:
Corporate Trust Administration, or such other address as the Trustee may
designate from time to time by notice to the Holders and the Company, or the
principal corporate trust office of any successor Trustee (or such other address
as a successor Trustee may designate from time to time by notice to the Holders
and the Company).
5
<PAGE>
"Credit Agreements" means (i) the Credit Agreement dated as of
June 23, 1998 by and among the Company, as borrower, Nationsbank, National
Association, as Administrative Agent and Arranger, J.P. Morgan Securities Inc.,
Deutsche Bank AG and Scotiabanc, Inc., as Syndication Agents and Co-Arrangers,
and the other lenders party thereto from time to time, together with the related
documents thereto, including, without limitation, any security documents, if
any, and all exhibits and schedules thereto and any agreement or agreements
relating to any extension, refunding, refinancing, successor or replacement
facility, whether or not with the same lender, and whether or not the principal
amount or amount of letters of credit outstanding thereunder or the interest
rate payable in respect thereof shall be thereby increased, in each case as
amended and in effect from time to time and (ii) the 2000 Credit Agreement.
"Default" means any event, act or condition that is, or after
notice or the passage of time or both would be, an Event of Default.
"Disqualified Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the Stated Maturity date of the Notes.
"DTC" means The Depository Trust Company, a New York
corporation.
"DTC Letter of Representations" shall mean the Letter of
Representations, dated the Issue Date, among the Company, DTC and the Trustee.
"EBITDA Coverage Ratio" with respect to any period means the
ratio of (i) Consolidated EBITDA of the Company to (ii) the aggregate amount of
Consolidated Interest Expense of the Company for such period; provided, however,
that if any calculation of the Company's EBITDA Coverage Ratio requires the use
of any quarter prior to the Issue Date, such calculation shall be made on a pro
forma basis, giving effect to the issuance of the Notes and the use of the net
proceeds therefrom as if the same had occurred at the beginning of the
four-quarter period used to make such calculation; and provided further that if
any such calculation requires the use of any quarter prior to the date that any
Asset Sale was consummated, or that any Indebtedness was incurred, or that any
acquisition of a hospital or other healthcare facility or any assets purchased
outside the ordinary course of business was effected, by the Company or any of
its Subsidiaries, such calculation shall be made on a pro forma basis, giving
effect to each such Asset Sale, incurrence of Indebtedness or acquisition, as
the case may be, and the use of any proceeds therefrom, as if the same had
occurred at the beginning of the four-quarter period used to make such
calculation.
"Eligible Investments" of any Person means Investments of such
Person in:
(i) direct obligations of, or obligations the payment of which is
guaranteed by, the United States of America or an interest in any
trust or fund that invests solely in such obligations or repurchase
agreements, properly secured, with respect to such obligations;
(ii) direct obligations of agencies or instrumentalities of the
United States of America having a rating of A or higher by Standard &
Poor's Corporation or A2 or higher by Moody's Investors Service, Inc.;
6
<PAGE>
(iii) a certificate of deposit issued by, or other
interest-bearing deposits with, a bank having its principal place of
business in the United States of America and having equity capital of
not less than $250,000,000;
(iv) a certificate of deposit by, or other interest-bearing
deposits with, any other bank organized under the laws of the United
States of America or any state thereof, provided that such deposit is
either (a) insured by the Federal Deposit Insurance Corporation or (b)
properly secured by such bank by pledging direct obligations of the
United States of America having a market value of not less than the
face amount of such deposits;
(v) prime commercial paper maturing within 270 days of the
acquisition thereof and, at the time of acquisition, having a rating
of A-1 or higher by Standard & Poor's Corporation, or P-1 or higher by
Moody's Investors Service, Inc.; or
(vi) eligible banker's acceptances, repurchase agreements and
tax-exempt municipal bonds having a maturity of less than one year, in
each case having a rating, or that is the full recourse obligation of
a person whose senior debt is rated A or higher by Standard & Poor's
Corporation or A2 or higher by Moody's Investors Service, Inc.
"Equity Offering" means a primary offering of Capital Stock of
the Company (other than Disqualified Stock or Preferred Stock) pursuant to a
registration statement filed with the Commission in accordance with the
Securities Act and declared effective by the staff of the Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means the 8 1/2% Senior Notes due 2008,
Series B (the terms of which are identical to the Initial Notes except that,
unless any Exchange Notes shall be issued as Private Exchange Notes (as defined
in the Registration Rights Agreement), the Exchange Notes shall be registered
under the Securities Act, and shall not contain the restrictive legend on the
face of the form of the Initial Notes), to be issued in exchange for the Initial
Notes pursuant to the registered Exchange Offer and a Private Exchange (as
defined in the Registration Rights Agreement).
"Exchange Offer" means the registration by the Company under
the Securities Act pursuant to a registration statement of the offer by the
Company to each Holder of the Initial Notes to exchange all the Initial Notes
held by such Holder for the Exchange Notes in an aggregate principal amount
equal to the aggregate principal amount of the Initial Notes held by such
Holder, all in accordance with the terms and conditions of the Registration
Rights Agreement.
"Exempted Debt" means the sum of the following as of any date
of determination: (i) Indebtedness of the Company and its Subsidiaries incurred
after the Issue Date and secured by Liens not otherwise permitted by the
"Limitations on Liens" covenant and (ii) Attributable Indebtedness of the
Company and its Subsidiaries in respect of every Sale and Leaseback Transaction
entered into after the Issue Date.
"Existing Indebtedness" means all of the Indebtedness of the
Company and its Subsidiaries that is outstanding on the Issue Date.
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"Fair Market Value" of any asset or items means the fair
market value of such asset or items as determined in good faith by the Board of
Directors and evidenced by a resolution of the Board of Directors.
"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 may be approved by a significant segment of
the accounting profession of the United States, as from time to time in effect.
"guarantee" means, as applied to any obligation, (a) a
guarantee (other than by endorsement or negotiable instruments for collection in
the ordinary course of business), direct or indirect, in any manner, of any part
of all of such obligation and (b) an agreement, direct or indirect, contingent
or otherwise, the practical effect of which is to assure in any way the payment
or performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down under letters of credit.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any interest rate swap agreement, foreign currency
exchange agreement, interest rate collar agreement, option or futures contract
or other similar agreement or arrangement relating to interest rates or foreign
exchange rates.
"Holder" means a Person in whose name a Note is registered on
the Registrar's books or records.
"Indebtedness" of any Person at any date means, without
duplication: (i) all indebtedness of such Person for borrowed money (whether or
not the recourse of the lender is to the whole of the assets of such Person or
only to a portion thereof); (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments; (iii) all obligations of
such Person in respect of letters of credit or other similar instruments (or
reimbursement obligations with respect thereto); (iv) all obligations of such
Person with respect to Hedging Obligations (other than those that fix the
interest rate on variable rate indebtedness otherwise permitted by this
Indenture or that protect the Company and/or its Subsidiaries against changes in
foreign exchange rates); (v) all obligations of such Person to pay the deferred
and unpaid purchase price of property or services, except trade payables and
accrued expenses incurred in the ordinary course of business; (vi) all
Capitalized Lease Obligations of such Person; (vii) all Indebtedness of others
secured by a Lien on any asset of such Person, whether or not such Indebtedness
is assumed by such Person; (viii) all Indebtedness of others guaranteed by such
Person to the extent of such guarantee; (ix) all Attributable Indebtedness; and
(x) all Disqualified Stock of such Person and its Subsidiaries and all other
Preferred Stock of Subsidiaries of such Person valued at the greater of (a) the
voluntary or involuntary liquidation preference of such Disqualified Stock or
such Preferred Stock, as the case may be, and (b) the aggregate amount payable
upon purchase, redemption, defeasance or payment of such Disqualified Stock or
such Preferred Stock, as the case may be. The amount of Indebtedness of any
Person at any date shall be the outstanding balance at such date of all
unconditional obligations plus past due interest as described above, the maximum
liability of such Person for any such contingent obligations at such date and,
in the case of clause (vii), the amount of the Indebtedness secured.
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"Indenture" means this Indenture as amended, restated or
supplemented from time to time.
"Initial Notes" means the 8 1/2% Senior Notes due 2008, Series
A of the Company issued on the Issue Date and authenticated and delivered under
this Indenture pursuant to Section 2.02 of this Indenture and any other notes
(other than Exchange Notes) issued after the Issue Date in accordance with
clause (iii) of the fourth paragraph of Section 2.02.
"Initial Purchasers" refers to UBS Warburg LLC, Deutsche Banc
Alex. Brown Inc., Chase Securities Inc., First Union Securities, Inc. and Scotia
Capital (USA) Inc.
"Interest Expense" of any Person for any period means the
aggregate amount of interest which, in accordance with GAAP, would be set
opposite the caption "interest expense" or any like caption on an income
statement for such Person (including, without limitation or duplication, imputed
interest included in Capitalized Lease Obligations, all commissions, discounts
and other fees and charges owed with respect to letters of credit and bankers'
acceptance financing, the net costs associated with Hedging Obligations,
amortization of financing fees and expenses, the interest portion of any
deferred payment obligation, amortization of discount and all other non-cash
interest expense other than interest amortized to cost of sales) plus the
aggregate amount, if any, by which such interest expense was reduced as a result
of the amortization of deferred debt restructuring credits for such period.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Notes as specified in the forms of Note attached
hereto as Exhibits A and B.
"Investments" of any Person means: (i) all investments by such
Person in any other Person in the form of loans, advances or capital
contributions (excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business); (ii) all guarantees of
Indebtedness or other obligations of any other Person by such Person; (iii) all
purchases (or other acquisitions for consideration) by such Person of
Indebtedness, Capital Stock or other securities of any other Person; and (iv)
all other items that would be classified as investments (including, without
limitation, purchases of assets outside the ordinary course of business) on a
balance sheet of such Person prepared in accordance with GAAP.
"Issue Date" means February 1, 2001, the date the Initial
Notes are initially issued.
"Joint Venture" means any Person at least a majority of whose
revenues result from healthcare related business of facilities.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or other similar encumbrance of any kind in
respect of such asset, whether or not filed, recorded or otherwise perfected
under applicable law (including, without limitation, any conditional sale or
other title retention agreement, and any financing lease in the nature thereof,
any agreement to sell, and any filing of, or agreement to give, any financing
statement (other than notice filings not perfecting a security interest) under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
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"Net Proceeds" with respect to any Asset Sale means (i) cash
(in U.S. dollars or freely convertible into U.S. dollars) received by the
Company or any of its Subsidiaries from such Asset Sale (including, without
limitation, cash received as consideration for the assumption or incurrence of
liabilities incurred in connection with or in anticipation of such Asset Sale),
after (a) provision for all income or other taxes measured by or resulting from
such Asset Sale or the transfer of the proceeds of such Asset Sale to the
Company or any of its Subsidiaries, (b) payment of all commissions and other
fees and expenses related to such Asset Sale and (c) deduction of an appropriate
amount to be provided by the Company or any of its Subsidiaries as a reserve, in
accordance with GAAP, against any liabilities associated with the assets sold or
otherwise disposed of in such Asset Sale and retained by the Company or any of
its Subsidiaries after such Asset Sale (including, without limitation, pension
and other post-employment benefit liabilities and liabilities related to
environmental matters) or against any indemnification obligations associated
with the sale or other disposition of the assets sold or otherwise disposed of
in such Asset Sale and (ii) all non-cash consideration received by the Company
or any of its Subsidiaries from such Asset Sales upon the liquidation or
conversion of such consideration into cash.
"Notes" means the Initial Notes, the Exchange Notes and any
other notes issued after the Issue Date in accordance with clause (iii) of the
fourth paragraph of Section 2.02 treated as a single class of securities, as
amended or supplemented from time to time in accordance with the terms hereof,
that are issued pursuant to this Indenture.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the Chief Financial Officer, Chief
Accounting Officer, Treasurer, President, any Vice President, secretary,
assistant secretary, director or other authorized signatory of such Person.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, any Vice Chairman of the Board, the Chief Executive
Officer, the President or any Vice President and by the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Company in their
official (and not individual) capacities; provided, however, that every
Officers' Certificate with respect to the compliance with a condition precedent
to the taking of any action under this Indenture shall include (i) a statement
that the officers making or giving such Officers' Certificate have read such
condition and any definitions or other provisions contained in this Indenture
relating thereto and (ii) a statement as to whether, in the opinion of such
officers, such condition has been complied with.
"Opinion of Counsel" means a written opinion from legal
counsel (such counsel may be an employee of or counsel to the Company or the
Trustee) that complies with the requirements of this Indenture.
"Permitted Investments" means: (i) capital contributions,
advances or loans to the Company by any Subsidiary or by the Company or any of
its Subsidiaries to a Subsidiary of the Company; (ii) the acquisition and
holding by the Company and each of its Subsidiaries of receivables owing to the
Company and such Subsidiary, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade terms;
(iii) the acquisition and holding by the Company and its Subsidiaries of cash
and Eligible Investments; (iv) Investments in any Person as a result of which
such other Person becomes a Subsidiary of the Company or is merged into or
consolidated with or transfers all or substantially all of its assets to the
Company or any of its Subsidiaries; and (v) the making of an Investment by the
Company, directly or through a Wholly Owned Subsidiary, in a Wholly Owned
Subsidiary formed solely for the purpose of insuring the
10
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healthcare business and facilities owned or operated by the Company or a
Subsidiary and any physician employed by or on the staff of any such business or
facility (the "Insurance Subsidiary"), provided that the amount invested in such
Insurance Subsidiary does not exceed $15,000,000.
"Permitted Liens" means: (i) Liens for taxes, assessments or
governmental charges or claims that either (a) are not yet delinquent or (b) are
being contested in good faith by appropriate proceedings; (ii) statutory Liens
of landlords and carriers', warehousemen's, mechanics', suppliers',
materialmen's, repairmen's or other like Liens arising in the ordinary course of
business and with respect to amounts that either (a) are not yet delinquent or
(b) are being contested in good faith by appropriate proceedings and as to which
appropriate reserves or other provisions have been made in accordance with GAAP;
(iii) Liens (other than any Lien imposed by the Employee Retirement Income
Security Act of 1974, as amended) incurred or deposits due in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security; (iv) Liens incurred or deposits
made to secure the performance of tenders, bids, leases, statutory obligations,
surety and appeal bonds, progress payments, government contracts and other
obligations of like nature (exclusive of obligations for the payment of borrowed
money), in each case, incurred in the ordinary course of business; (v)
attachment or judgment Liens not giving rise to a Default or an Event of
Default; (vi) easements, rights-of-way, restrictions and other similar charges
or encumbrances not interfering with the ordinary conduct of the business of the
Company or any of its Subsidiaries; (vii) leases or subleases granted to others
not interfering with the ordinary conduct of the business of the Company or any
of its Subsidiaries; (viii) Liens with respect to any Acquired Indebtedness,
provided that such Liens only extend to assets that were subject to such Liens
prior to the acquisition of such assets by the Company or its Subsidiaries and,
with respect to Indebtedness other than Indebtedness ranking pari passu with the
Notes, not incurred in anticipation or contemplation of such acquisition; (ix)
Liens securing Bank Debt or Refinancing Indebtedness, provided, in the case of
Refinancing Indebtedness, that such Liens only extend to the assets securing the
Indebtedness being refinanced and such refinanced Indebtedness was previously
secured by such assets; (x) purchase money mortgages (including Capitalized
Lease Obligations); (xi) Liens existing on the Issue Date; (xii) Liens on assets
of any Subsidiary of the Company securing Indebtedness of such Subsidiary,
provided that such Indebtedness is permitted to be incurred by the terms of this
Indenture; (xiii) bankers' liens with respect to the right of set-off arising in
the ordinary course of business against amounts maintained in bank accounts or
certificates of deposit in the name of the Company or any Subsidiary; (xiv) the
interest of any issuer of a letter of credit in any cash or Eligible Investment
deposited with or for the benefit of such issuer as collateral for such letter
of credit, provided that the Indebtedness so collateralized is permitted to be
incurred by the terms of this Indenture; (xv) any Lien consisting of a right of
first refusal or option to purchase the Company's ownership interest in any
Subsidiary or to purchase assets of the Company or any Subsidiary of the
Company, which right of first refusal or option is entered into in the ordinary
course of business; and (xvi) the Lien granted to the Trustee pursuant to the
trust created pursuant to Article 9 hereof and any substantially equivalent Lien
granted to the respective trustees under the indentures for other debt
securities of the Company.
"Person" means any individual, corporation, partnership, joint
venture, incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
"Preferred Stock" means with respect to any Person all Capital
Stock of such Person which has a preference in liquidation or a preference with
respect to the payment of dividends or distributions of operating profit or
cash.
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"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A.
"Record Date" for interest payable on any Interest Payment
Date (except a date for payment of default interest) means the January 15 or
July 15 (whether or not a Business Day), as the case may be, immediately
preceding such Interest Payment Date.
"Redemption Date" when used with respect to any Note to be
redeemed means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price" when used with respect to any Note to be
redeemed means the price fixed for such redemption pursuant to this Indenture.
"Refinancing Indebtedness" means Indebtedness that is applied
to refund, refinance or extend any Existing Indebtedness (other than
Indebtedness under the 2000 Credit Agreement), provided that: (i) the
Refinancing Indebtedness is the obligation of the same Person (or if the
Indebtedness being refinanced is an obligation of one or more Subsidiaries of
the Company, such Refinancing Indebtedness may be incurred by the Company or one
or more Subsidiaries of the Company) and is subordinated to the Notes, if at
all, to the same extent as the Indebtedness being refunded, refinanced or
extended; (ii) the Refinancing Indebtedness is scheduled to mature no earlier
than the Indebtedness being refunded, refinanced or extended; (iii) the
Refinancing Indebtedness has a Weighted Average Life to Maturity at the time
such Refinancing Indebtedness is incurred that is equal to or greater than the
Weighted Average Life to Maturity of the portion of the Indebtedness being
refunded, refinanced or extended; (iv) the Refinancing Indebtedness is secured
only to the extent, if at all, and by the assets that the Indebtedness being
refunded, refinanced or extended is secured; and (v) such Refinancing
Indebtedness is in an aggregate principal amount that is equal to or less than
the aggregate principal amount then outstanding under the Indebtedness being
refunded, refinanced or extended (except for issuance costs and increases in
Attributable Indebtedness due solely to increases in the present value
calculations resulting from renewals or extensions of the terms of the
underlying leases in effect on the Issue Date).
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of February 1, 2001 among the Company and the Initial
Purchasers.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Restricted Period" means, with respect to any
Note, the period of forty (40) consecutive days beginning on and including the
first day after the later of (i) the day on which such Note is first offered to
Persons other than distributors (as defined in Regulation S) in reliance on
Regulation S and (ii) the closing date of the offering of such Note.
"Restricted Payment" means with respect to any Person: (i) the
declaration of any dividend or the making of any other payment or distribution
of cash, securities or other property or assets in respect of such Person's
Capital Stock (except that a dividend payable solely in Capital Stock (other
than Disqualified Stock) of such Person shall not constitute a Restricted
Payment); (ii) any payment on account of the purchase, redemption, retirement or
other acquisition for value of such Person's or such Person's Subsidiaries'
Capital Stock or any other payment or distribution made in respect thereof,
either directly or indirectly; (iii) any payment on account of the purchase,
redemption,
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retirement, defeasance or other acquisition for value, prior to any scheduled
principal payment, sinking fund payment or Stated Maturity, of Subordinated
Indebtedness of the Company or its Subsidiaries; (iv) the incurrence, creation
or assumption of any guarantee of Indebtedness of any Affiliate (other than a
Subsidiary of the Company); or (v) the making of any Investment in any Person
(other than Permitted Investments); provided, however, that with respect to the
Company and its Subsidiaries, Restricted Payments shall not include any payment
described in clause (i), (ii) or (iii) above made (1) to the Company or any of
its Wholly Owned Subsidiaries by any of the Company's Subsidiaries or (2) by the
Company to any of its Wholly Owned Subsidiaries or (3) by any Subsidiary
provided that the Company or another Subsidiary receives its proportionate share
thereof.
"Restricted Security" means any Note (or beneficial interest
therein) other than an Exchange Note (or beneficial interest therein), until
such time as: (i) such Note (or beneficial interest therein) has been
transferred pursuant to an effective registration statement under the Securities
Act; (ii) such Note is a 144A Global Note and two years have passed since the
Issue Date; (iii) such Note is a Regulation S Global Note and the Regulation S
Restricted Period has expired; or (iv) the Private Placement legend therefor has
otherwise been removed pursuant to Section 2.16(e) hereof or, in the case of a
beneficial interest in a Global Note, such beneficial interest has been
exchanged for an interest in a Global Note not bearing a Private Placement
Legend.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Sale and Leaseback Transaction" means, with respect to any
Person, an arrangement with any bank, insurance company or other lender or
investor or to which such lender or investor is a party, providing for the
leasing by such Person or any of its Subsidiaries of any property or asset of
such Person or any of its Subsidiaries which has been or is being sold or
transferred by such Person or such Subsidiary to such lender or investor or to
any Person to whom funds have been or are to be advanced by such lender or
investor on the security of such property or asset.
"Secretary's Certificate" means a certificate signed by the
Secretary or any Assistant Secretary of the Company in his or her official (and
not individual) capacity.
"Securities Act" means the Securities Act of 1933, as amended.
"Significant Subsidiary" means a Subsidiary of the Company
which at the time of determination either (i) had tangible assets which, as of
the Company's most recent quarterly consolidated balance sheet, constituted at
least 5% of Consolidated Tangible Assets as of such date, or (ii) had revenues
for the 12-month period ending on the date of the Company's most recent
quarterly consolidated statement of income which constituted at least 5% of the
Company's total consolidated revenues for such period.
"Stated Maturity" when used with respect to any security or
any installment of interest thereon, means that date specified in such security
as the fixed date on which the principal of such security or such installment of
interest is due and payable.
"Subordinated Indebtedness" of any Person means any
Indebtedness of such Person that is subordinated in right of payment to the
Notes.
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"Subsidiary" of any Person means (i) any corporation of which
Common Equity having ordinary voting power to elect a majority of the directors
of such corporation is owned by such Person directly or through one or more
other Subsidiaries of such Person and (ii) any entity other than a corporation
in which such Person, directly or indirectly, owns at least 50% of the Common
Equity of such entity and has the authority to manage such entity on a
day-to-day basis.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this
Indenture (except as provided in Section 8.03 hereof).
"Trust Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such Person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.
"Trustee" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
the successor.
"U.S. Government Obligations" means (a) securities that are
direct obligations of the United States of America for the payment of which its
full faith and credit are pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or a specific payment of principal or
interest on any such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness or portion thereof at any date, the number of years obtained by
dividing (i) the then outstanding principal amount of such Indebtedness or
portion thereof (if applicable) into (ii) the sum of the products obtained by
multiplying (a) the amount of each then remaining installment, sinking fund,
serial maturity or other required payment of principal, including payment at
final maturity, in respect thereof, by (b) the number of years (calculated to
the nearest one-twelfth) that will elapse between such date and the making of
such payment.
"Wholly Owned Subsidiary" of any Person means (i) a Subsidiary
of which 100% of the Common Equity (except for director's qualifying shares or
certain minority interests owned by other Persons solely due to local law
requirements that there be more than one stockholder, but which interest is not
in excess of what is required for such purpose) is owned directly by such Person
or
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through one or more other Wholly Owned Subsidiaries of such Person and (ii) any
entity other than a corporation in which such Person, directly or indirectly,
owns all of the Common Equity of such entity.
Section 1.02. Other Definitions.
The definitions of the following terms may be found in the
sections indicated as follows:
Term Defined in Section
"Accredited Investors".................................... 2.01
"Affiliate Transaction"................................... 4.13
"Agent Members"........................................... 2.15
"Applicable Procedures"................................... 2.16
"Asset Sale Offer"........................................ 4.12
"Asset Sale Payment Amount"............................... 4.12
"Asset Sale Purchase Price"............................... 4.12
"Bankruptcy Law".......................................... 6.01
"Business Day"............................................ 11.07
"Change of Control Offer"................................. 4.15
"Change of Control Payment Date".......................... 4.15
"Change of Control Purchase Price"........................ 4.15
"Clearstream"............................................. 2.01
"Covenant Defeasance"..................................... 9.03
"Custodian"....... ....................................... 6.01
"Depositary".............................................. 2.15
"Euroclear"............................................... 2.01
"Event of Default"........................................ 6.01
"Excess Proceeds"......................................... 4.12
"Excess Proceeds Payment Date"............................ 4.12
"Global Notes"............................................ 2.01
"Legal Defeasance"........................................ 9.02
"Legal Holiday"........................................... 11.07
"make whole amount"....................................... Exhibit A/Exhibit B
"Net Proceeds Deficiency"................................. 4.12
"Non-payment Default"..................................... 10.03
"Other Debt".............................................. 4.12
"Paying Agent"............................................ 2.03
"Payment Blockage Notice"................................. 10.03
"Payment Blockage Period"................................. 10.03
"Payment Default"......................................... 10.03
"Private Placement Legend"................................ 2.17
"Registrar"............................................... 2.03
"Regulation S Global Note"................................ 2.01
"Restricted Global Note".................................. 2.01
"Successor"............................................... 5.01
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Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
portion of such provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by reference in and made
a part of this Indenture. Unless otherwise specified, terms used in this
Indenture that are defined by the TIA, defined in the TIA by reference to
another statute or defined by Commission rule have the meanings therein assigned
to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether
defined expressly or by reference;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular; and
(5) words used herein implying any gender shall apply to every
gender.
ARTICLE 2
THE NOTES
Section 2.01. Dating; Incorporation of Form in Indenture; Form of Notes.
(a) Generally. The Initial Notes and the Trustee's certificate
of authentication shall be substantially in the form of Exhibit A, and the
Exchange Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit B, each of which is incorporated in and
made part of this Indenture with such appropriate insertions, substitutions and
other variations as are required or permitted by this Indenture. The Notes may
have notations, legends or endorsements required by law, stock exchange rule or
usage all in a form approved by the Company. Each Note shall be dated the date
of its authentication.
(b) Notes Sold Pursuant to Rule 144A. The Notes offered and
sold in their initial distribution in reliance on Rule 144A to Qualified
Institutional Buyers shall be issued in the form of a permanent global note (the
"Restricted Global Note") (which may be represented by more than one
certificate, if so required by the Depositary's rules regarding the maximum
principal amount to be represented by a single certificate), duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
Restricted Global Note shall be registered in the name of the Depositary or its
nominee and deposited with the Trustee, at its Corporate Trust Office, as
custodian for the Depositary on behalf of the purchasers of the Notes
represented thereby.
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(c) Notes Sold Pursuant to Regulation S. The Notes offered and
sold in their initial distribution in reliance on Regulation S shall be issued
in the form of a permanent global note (the "Regulation S Global Note" and,
together with the Restricted Global Note, the "Global Notes") (which may be
represented by more than one certificate, if so required by the Depositary's
rules regarding the maximum principal amount to be represented by a single
certificate), duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The Regulation S Global Note shall be registered in the
name of the Depositary or its nominee and deposited with the Trustee, at its
Corporate Trust Office, as custodian for the Depositary for credit to the
respective accounts of The Euroclear System ("Euroclear") and Clearsteam
Banking, societe anonyme ("Clearstream"). Prior to the termination of the
Regulation S Restricted Period, beneficial interests in the Regulation S Global
Note may be held only through Euroclear and Clearstream.
(d) Notes Sold to Institutional Accredited Investors. The
Notes offered and sold in their initial distribution in reliance on an exemption
from registration under the Securities Act (other than Rule 144A or Regulation
S) to institutional "accredited investors" (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act ("Accredited Investors")) shall be issued in
certificated, fully registered form without coupons and only in denominations of
$250,000 and integral multiples of $1,000 in excess thereof, duly executed by
the Company and authenticated by the Trustee as hereinafter provided.
Section 2.02. Execution and Authentication; Appointment of Authenticating Agent.
The Notes shall be executed on behalf of the Company by one or
more Officers of the Company. Such signature may be either manual or facsimile.
If an Officer whose signature is on a Note no longer holds
that office at the time the Trustee authenticates the Note, the Note shall be
valid nevertheless.
A Note shall not be valid until the Trustee manually signs the
certificate of authentication on the Note. Such signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
The Trustee shall authenticate (i) Initial Notes for original
issue on the Issue Date in the aggregate principal amount not to exceed
$375,000,000, (ii) pursuant to the Exchange Offer, Exchange Notes from time to
time for issue only in exchange for a like principal amount of Initial Notes and
(iii) subject to compliance with Section 4.11 hereof, one or more series of
Notes for original issue after the Issue Date (such Notes to be substantially in
the form of Exhibit A or B hereto, as the case may be) in an unlimited amount
(and if in the form of Exhibit A hereto the same principal amount of Exchange
Notes in exchange therefor upon consummation of a registered exchange offer), in
each case upon written orders of the Company in the form of an Officers'
Certificate, which Officers' Certificate shall, in the case of any issuance
pursuant to clause (iii) above, certify that such issuance is in compliance with
Section 4.11 hereof. In addition, each such Officers' Certificate shall specify
the amount of Notes to be authenticated, the date on which the Notes are to be
authenticated, whether the Notes are to be Initial Notes, Exchange Notes or
Notes issued under clause (iii) of the preceding sentence and the aggregate
principal amount of Notes outstanding on the date of authentication.
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Except as provided in section 2.01(d), the Notes shall be
issuable only in definitive, fully registered form without coupons and only in
minimum denominations of $1,000 and integral multiples thereof.
The Trustee, with the approval of the Company, may appoint an
authenticating agent to authenticate Notes. Any such appointment shall be
evidenced by an instrument signed by an authorized officer of the Trustee, a
copy of which shall be furnished to the Company. An authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent, and shall comply with this Indenture. An authenticating agent has the
same right as an Agent to deal with the Company or an Affiliate.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough
of Manhattan, The City of New York where (a) Notes may be presented or
surrendered for registration of transfer or for exchange ("Registrar"), (b)
Notes may be presented or surrendered for payment ("Paying Agent") and (c)
notices and demands in respect of Notes and this Indenture may be served. The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Registrar shall provide the Company a current copy of such register from
time to time upon request of the Company. The Company may have one or more
co-Registrars and one or more additional Paying Agents. The Company may change
any Paying Agent, Registrar or co-Registrar without notice to any Holder. The
Company may not act as Paying Agent, but may act as Registrar or co-Registrar.
The Company shall enter into an appropriate agency agreement
with any Registrar or Paying Agent not a party to this Indenture, which shall
incorporate the provisions of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall notify
the Trustee in writing of the name and address of any such Agent. If the Company
fails to maintain a Registrar or Paying Agent, or agent for service of notices
and demands, or fails to give the foregoing notice, the Company shall notify the
Trustee and the Trustee shall to the extent that it is capable act as such for
so long as such failure continues.
The Company initially appoints the Trustee as Registrar and
Paying Agent in the Borough of Manhattan, The City of New York.
Section 2.04. Paying Agent To Hold Money in Trust.
Before 10:00 A.M. New York City time on each payment date of
the principal of and/or interest on any Notes, the Company shall deposit with
the Paying Agent a sum sufficient to pay such principal and interest so becoming
due. The Company at any time may require a Paying Agent to pay all money held by
it to the Trustee together with a complete accounting of such sums, and the
Trustee may at any time during the continuance of any Event of Default under
Section 6.01(a) or (b) hereof, upon written request to a Paying Agent, require
such Paying Agent to forthwith pay to the Trustee all sums so held in trust by
such Paying Agent together with a complete accounting of such sums. Upon doing
so, the Paying Agent shall have no further liability for the money. Funds
deposited with the Paying Agent may be invested as agreed from time to time by
the Company and the Paying Agent. All payments made hereunder shall be in U.S.
legal tender.
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Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least five Business Days before each Interest Payment
Date and the Stated Maturity Date and at such other times as the Trustee may
reasonably request in writing, a list in such form and as of such date as the
Trustee may require of the names and addresses of Holders.
Section 2.06. [Intentionally Omitted].
Section 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the
Holder of a Note claims that a Note has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Note if the Trustee's requirements for replacement are met. An indemnity bond
may be required by the Company or the Trustee that is sufficient in the judgment
of the Company and the Trustee to protect the Company, the Trustee or any Agent
from any loss which any of them may suffer if a Note is replaced and evidence to
their satisfaction of apparent loss, destruction or theft of such Note may be
required by the Company, the Trustee or any Agent. The Company and the Trustee
may charge for their reasonable out-of-pocket expenses (including reasonable
attorneys' fees and expenses and any applicable taxes) in replacing a Note
pursuant to this Section 2.07. In the event any such mutilated, lost, destroyed
or wrongfully taken Note has become due and payable, the Company in its
discretion may pay such Note instead of issuing a new Note in replacement
thereof. If after the delivery of such new Note, a bona fide purchaser of the
original Note in lieu of which such new Note was issued presents for payment
such original Note, the Company and the Trustee shall be entitled to recover
such new Note from the person to whom it was delivered or any transferee
thereof, except a bona fide purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by the Company or the Trustee in connection therewith.
Every replacement Note is an additional obligation of the
Company.
Section 2.08. Outstanding Notes.
Notes outstanding at any time are all Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation and those described in this Section 2.08 as not outstanding.
A Note replaced pursuant to Section 2.07 hereof (other than a
mutilated Note surrendered for replacement) ceases to be outstanding unless and
until the Trustee receives proof satisfactory to it that such replaced Note is
held by a protected purchaser.
If a Paying Agent holds on a Redemption Date or at Stated
Maturity U.S. legal tender sufficient to pay the principal of, make-whole
amount, if any, and accrued interest on Notes (or portions thereof) payable on
that date, then on and after that date, such Notes (or portions thereof) cease
to be outstanding and interest on them ceases to accrue.
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Section 2.09. Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver, consent or notice,
Notes owned by the Company or any of its Affiliates shall be considered as
though they are not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Notes which a Trust Officer of the Trustee actually knows are
so owned shall be so considered. The Company shall notify the Trustee, in
writing, when it or any of its Affiliates repurchases or otherwise acquires
Notes and of the aggregate principal amount of such Notes so repurchased or
otherwise acquired.
Section 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form, and shall carry all rights and restrictions,
of definitive Notes but may have variations that the Company considers
appropriate for temporary Notes. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate definitive Notes in exchange for
temporary Notes upon surrender of such temporary Notes at the office or agency
maintained pursuant to Section 2.03 hereof.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee
shall cancel all Notes surrendered for transfer, exchange, payment or
cancellation and, unless the Company instructs the Trustee in writing to deliver
the Notes to the Company, shall dispose of such Notes in accordance with its
normal practice. Subject to Section 2.07 hereof, the Company may not issue new
Notes to replace Notes in respect of which it has previously paid all principal,
make-whole amount, if any, and interest accrued thereon, or delivered to the
Trustee for cancellation. The Trustee shall provide the Company with a list of
all Notes that have been canceled from time to time as requested in writing by
the Company. If the Company shall acquire any of the Notes, such acquisition
shall not operate as a redemption or satisfaction of the Indebtedness
represented by such Notes unless and until the same are surrendered to the
Trustee for cancellation pursuant to this Section 2.07.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of principal or interest
on the Notes, it shall pay interest on overdue principal and on overdue
installments of interest (without regard to any applicable grace periods) from
time to time on demand at the rate per annum borne by the Notes, to the extent
lawful.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest, plus (to the extent lawful) any interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special Record Date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest or
the next succeeding Business Day if such date is not a Business Day. At least 15
days before the subsequent special Record Date, the Company shall mail to each
Holder, as of a recent date selected by the
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Company, with a copy to the Trustee, a notice that states the subsequent special
Record Date, the payment date and the amount of defaulted interest, and interest
payable on such defaulted interest, if any, to be paid.
Notwithstanding the foregoing, any interest which is paid
prior to the expiration of the 30-day period set forth in Section 6.01(a) hereof
shall be paid to Holders as of the Record Date for the Interest Payment Date for
which interest has not been paid.
Section 2.13. Deposit of Moneys; Payments.
Prior to 10:00 A.M., New York City time, on the relevant
Interest Payment Date, Stated Maturity date, Redemption Date, Change of Control
Purchase Date and Excess Proceeds Payment Date, the Company shall have deposited
with the Paying Agent in immediately available funds money sufficient to make
all cash payments due on such Interest Payment Date, Stated Maturity date,
Redemption Date, Change of Control Purchase Date and Excess Proceeds Payment
Date, as the case may be (or if any such date is not a Business Day, the first
preceding Business Day). The principal and interest on Global Notes shall be
payable to the Depositary or its nominee, as the case may be, as the sole
registered owner and the sole holder of the Global Notes represented thereby.
The principal and interest on Certificated Notes, if any, shall be payable at
the office of the Paying Agents. The Paying Agents shall pay the Company any
excess cash remaining on deposit after all payments have been made with respect
to a given Interest Payment Date, Stated Maturity date, Redemption Date, Change
of Control Purchase Date or Excess Proceeds Payment Date, as the case may be.
All payments made hereunder shall be in U.S. legal tender.
Section 2.14. "CUSIP" Number.
The Company in issuing the Notes may use "CUSIP" number(s) and
the Trustee shall use the "CUSIP" numbers(s) in notices of redemption or
exchange as a convenience to Holders; provided that neither the Company nor the
Trustee shall have any responsibility for any defect in the "CUSIP" number that
appears on any Note, check, advice or payment or redemption notice, and any such
notice may state that no representation is made as to the correctness or
accuracy of the "CUSIP" number(s) printed in the notice or on the Notes, and
that reliance may be placed only on the other identification numbers printed on
the Notes and any such redemption or exchange shall not be affected by any
defect in or omission of such number(s). The Company shall promptly notify the
Trustee of any changes in "CUSIP" numbers.
Section 2.15. Depositary.
(a) The Company hereby appoints DTC to act as depositary (in
such capacity, together with its successors in such capacity, the "Depositary")
with respect to the Global Notes. The Trustee shall act as custodian of the
Global Notes for the Depositary. So long as the Depositary or its nominee, Cede
& Co., is the registered owner of the Global Notes, it shall be considered the
Holder of the Notes represented thereby for all purposes hereunder and under the
Global Notes, and neither any members of, or participants in, the Depositary
("Agent Members") nor any other Persons on whose behalf Agent Members may act
shall have any rights hereunder with respect to the Global Notes or under the
Global Notes. 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 its nominee, as the case may be, or impair, as between the
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Depositary, its Agent Members and any other Person on whose behalf an Agent
Member may act, the operation of customary practices of such Persons governing
the exercise of the rights of a Holder of any Note.
(b) The Company may remove or replace DTC or any successor as
Depositary for any reason upon thirty (30) days' notice to DTC or such
successor. The Holders shall have no right to a depositary for the Notes.
(c) Notwithstanding any other provision of this Indenture or
the Notes, so long as DTC or its nominee is the registered owner of the Notes:
(i) the provisions of the DTC Letter of Representations
shall control over the provisions of this Indenture with
respect to the matters covered thereby;
(ii) presentation of Notes to the Trustee at redemption
or at maturity shall be deemed made to the Trustee when the
right to exercise ownership rights in the Notes through DTC
or Agent Members is transferred by DTC on its books; and
(iii) DTC may present notices, approvals, waivers or
other communications required or permitted to be made by
Holders under this Indenture on a fractionalized basis on
behalf of some or all of those Persons entitled to exercise
ownership rights in the Notes through DTC or Agent Members.
Section 2.16. Registration of Transfers and Exchanges.
(a) Transfer and Exchange Generally. (i) The Notes are
transferable only upon the surrender thereof for registration of
transfer. When a Note is presented to the Registrar with a duly
executed instrument of assignment and transfer substantially in the
form of assignment attached to Exhibit A or B, as applicable, the
Registrar shall register the transfer as requested if such transfer
complies with the provisions hereof. Prior to the due presentation for
registration of transfer of any Note, the Person in whose name such
Note is registered shall be treated as the absolute owner of such Note
for the purpose of receiving payment of principal of, make-whole amount
(if any) and interest on such Note (whether or not such payment is
overdue) and for all other purposes whatsoever, notwithstanding any
notice to the contrary. Registration of transfer of any Note by the
Registrar shall be deemed to be an acknowledgment of such transfer by
the Company.
(ii) When Notes are presented to the Registrar with a
written request to exchange such Notes for Notes of any authorized
denominations and of a like aggregate principal amount, the Registrar
shall make the exchange as requested if such exchange complies with the
provisions of this Section 2.16(a).
(iii) Following any request for transfer or exchange
of one or more Notes made in compliance with clauses (i) or (ii), as
the case may be, of this Section 2.16(a), the Company shall execute,
and the Trustee shall authenticate and deliver, one or more new Notes
of a like principal amount and in such authorized denominations as may
be requested. Any exchange or transfer shall be without charge, except
that the Company may require payment by the Holder of a sum sufficient
to cover any tax or other governmental charge that may be
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imposed in relation to a transfer or exchange other than any exchange
pursuant to Sections 2.10, 3.06, 4.12, 4.15 or 8.05 hereof.
(iv) Transfers or exchanges of the Global Notes and beneficial
interests therein shall be subject to the provisions of Section
2.16(b) and the rules of the Depositary. Transfers or exchanges of
Certificated Notes shall be subject to the provisions of Section
2.16(c).
(v) Except as otherwise provided herein, the Global Notes and
each Certificated Note shall bear the Private Placement Legend as set
forth in Section 2.17. By its acceptance of any Note bearing the
Private Placement Legend, whether upon original issuance or subsequent
transfer, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Note only as
provided in this Indenture. Upon the specific written request of a
Holder to remove the Private Placement Legend, the Registrar shall
authenticate and deliver a Note with an equivalent principal amount
not bearing the Private Placement Legend if there is provided to the
Company evidence reasonably satisfactory to the Company (which may, at
the Company's request, include an Opinion of Counsel) that neither the
Private Placement Legend nor the restrictions on transfer set forth
therein are required to ensure compliance with the Securities Act.
Upon a written request for the registration of transfer or exchange of
a Note bearing the Private Placement Legend pursuant to an effective
registration statement under the Securities Act and in accordance with
any applicable securities laws of any state of the United States, the
Registrar shall authenticate and deliver a Note with an equivalent
principal amount not bearing the Private Placement Legend. If the
Private Placement Legend has been removed from a Note as provided in
this clause (v), the transfer of such Note shall not be subject to the
restrictions on transfer set forth in the Private Placement Legend,
and no other Note issued in exchange for all or any part of such Note
shall bear the Private Placement Legend unless the Company has
reasonable cause to believe that such other Note is a Restricted
Security and instructs the Registrar in writing to cause the Private
Placement Legend to appear thereon.
(vi) None of the Company or the Trustee or the Registrar shall be
liable for any delay by the Depositary in identifying the beneficial
owners of the Notes, and each such Person may conclusively rely on,
and shall be protected in relying on, instructions from the Depositary
for all purposes (including with respect to the registration and
delivery, and the respective principal amounts, of any Notes to be
issued).
(vii) Prior to the due presentation for registration of transfer
of any Note, the Company, the Trustee, the Paying Agent, the Registrar
or any co-Registrar may deem and treat the Person in whose name a Note
is registered as the absolute owner of such Note for the purpose of
receiving payment of principal of, make-whole amount, if any, and
interest, if any, on such Note and for all other purposes whatsoever,
whether or not such Note is overdue, and none of the Company, the
Trustee, the Paying Agent, the Registrar or any co-Registrar shall be
affected by notice to the contrary. So long as the Depositary or its
nominee is the Holder of a Global Note, the Depositary or such
nominee, as the case may be, will be considered the sole owner or
Holder of the Notes represented by such Global Note for all purposes
hereunder and under the Notes. Any Holder of a Global Note, and each
Person with an interest in such Global Note, shall, by acceptance of
such Global Note or such interest, agree that transfers of the
beneficial interests in such Global Note may be effected only through
a book-entry system
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maintained by the Holder of such Global Note (or its agent) and that
ownership of a beneficial interest in such Global Note shall be
required to be reflected in a book entry.
(viii) Any Note issued upon any transfer or exchange pursuant to
this Section 2.16 will evidence the same debt and will be entitled to
the same benefits and, unless otherwise provided for in this
Indenture, subject to the same restrictions under this Indenture as
the Note or Notes surrendered upon such transfer or exchange.
(ix) The Registrar shall not be required to register the transfer
of or exchange any Note (A) selected for redemption in whole or in
part pursuant to Article 3, except the unredeemed portion of any Note
being redeemed in part, (B) for a period beginning fifteen (15) days
before the mailing of a notice of redemption of Notes and ending on
the date of such mailing or (C) between a Record Date and the next
succeeding Interest Payment Date.
(b) Transfers and Exchanges of the Global Notes and Beneficial
Interests Therein.
(i) Subject to clauses (ii) through (viii) of this Section
2.16(b), transfers of the Global Notes shall be limited to transfers
in whole, but not in part, to the Depositary, its successors or their
respective nominees. So long as the Global Notes remain outstanding
and are held by or on behalf of the Depositary, transfers and
exchanges of beneficial interests in the Global Notes shall be made in
accordance with the provisions of this Section 2.16(b) and in
accordance with the rules and procedures of the Depositary to the
extent applicable (the "Applicable Procedures").
(ii) No restrictions shall apply with respect to the transfer or
registration of transfer of (x) a beneficial interest in the
Restricted Global Note to a transferee that takes delivery in the form
of a beneficial interest in the Restricted Global Note or (y) a
beneficial interest in the Regulation S Global Note to a transferee
that takes delivery in the form of a beneficial interest in the
Regulation S Global Note; provided that any transfer described in this
clause (ii) shall be made in accordance with the Applicable
Procedures.
(iii) Any transfer of a beneficial interest in the Restricted
Global Note to a transferee that will take delivery in the form of a
beneficial interest in the Regulation S Global Note prior to the
termination of the Regulation S Restricted Period shall be registered,
subject to the Applicable Procedures, only in accordance with this
clause (iii). At any time prior to the termination of the Regulation S
Restricted Period, upon (x) receipt by the Registrar of (A)
instructions given in accordance with the Applicable Procedures from
the Depositary or its nominee on behalf of an owner of a beneficial
interest in the Restricted Global Note to transfer such beneficial
interest to a Person that will take delivery in the form of a
beneficial interest in the Regulation S Global Note, (B) a written
order of the Depositary or its nominee given in accordance with the
Applicable Procedures containing account and other information with
respect to such transfer and (C) a certificate of the transferor of
the beneficial interest in the Restricted Global Note substantially in
the form of Exhibit D and (y) satisfaction of all other applicable
conditions imposed by this Indenture and the Applicable Procedures,
the Registrar shall (1) reflect in the register for the Notes a
decrease in the principal amount of the Restricted Global Note and an
increase in the principal amount of the Regulation S Global Note, each
such adjustment to be equal to the beneficial interest transferred
pursuant to this clause (iii) and (2) instruct the Depositary to make
the corresponding adjustment to its records
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and debit the account of the appropriate Agent Members in accordance
with the Applicable Procedures.
(iv) Any transfer of a beneficial interest in the Restricted
Global Note to a transferee that will take delivery in the form of a
beneficial interest in the Regulation S Global Note subsequent to the
termination of the Regulation S Restricted Period shall be registered,
subject to the Applicable Procedures, only in accordance with this
clause (iv). At any time subsequent to the termination of the
Regulation S Restricted Period, upon (x) receipt by the Registrar of
(A) instructions given in accordance with the Applicable Procedures
from the Depositary or its nominee on behalf of an owner of a
beneficial interest in the Restricted Global Note to transfer such
beneficial interest to a Person that will take delivery in the form of
a beneficial interest in the Regulation S Global Note, (B) a written
order of the Depositary or its nominee given in accordance with the
Applicable Procedures containing account and other information with
respect to such transfer and (C) a certificate of the transferor of
the beneficial interest in the Restricted Global Note substantially in
the form of Exhibit D (if transfer is made in reliance on Regulation
S) or Exhibit E (if transfer is made in reliance on Rule 144) and (y)
satisfaction of all other conditions imposed by the Applicable
Procedures, the Registrar shall (1) reflect in the register for the
Notes a decrease in the principal amount of the Restricted Global Note
and an increase in the principal amount of the Regulation S Global
Note, each such adjustment to equal the principal amount of the
beneficial interest transferred pursuant to this clause (iv), and (2)
instruct the Depositary to make the corresponding adjustment to its
records and debit and credit the accounts of the appropriate Agent
Members in accordance with the Applicable Procedures.
(v) Any transfer of a beneficial interest in the Regulation S
Global Note to a transferee that will take delivery in the form of a
beneficial interest in the Restricted Global Note, either prior or
subsequent to the termination of the Regulation S Restricted Period,
shall be registered, subject to the Applicable Procedures, only in
accordance with this clause (v). At any time upon (x) receipt by the
Registrar of (A) instructions given in accordance with the Applicable
Procedures from the Depositary or its nominee on behalf of an owner of
a beneficial interest in the Regulation S Global Note to transfer such
beneficial interest to a Person that will take delivery in the form of
a beneficial interest in the Restricted Global Note, (B) a written
order of the Depositary or its nominee given in accordance with the
Applicable Procedures containing account and other information with
respect to such transfer and (C) a certificate of the transferor of
the beneficial interest in the Regulation S Global Note substantially
in the form of Exhibit C and (y) satisfaction of all other conditions
imposed by and the Applicable Procedures, the Registrar shall (1)
reflect in the register for the Notes a decrease in the principal
amount of the Regulation S Global Note and an increase in the
principal amount of the Restricted Global Note, each such adjustment
to equal the principal amount of the beneficial interest transferred
pursuant to this clause (v), and (2) instruct the Depositary to make
the corresponding adjustment to its records and debit and credit the
accounts of the appropriate Agent Members in accordance with the
Applicable Procedures.
(vi) Any transfer of a beneficial interest in the Restricted
Global Note to a transferee that will take delivery in the form of one
or more Certificated Notes shall be registered, subject to the
Applicable Procedures, only in accordance with this clause (vi). At
any time upon (x) receipt by the Registrar of (A) instructions given
in accordance with the Applicable Procedures from the Depositary or
its nominee on behalf of an owner of a
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beneficial interest in the Restricted Global Note to transfer such
beneficial interest to a Person that will take delivery in the form of
one or more Certificated Notes, (B) a written order of the Depositary
or its nominee given in accordance with the Applicable Procedures
containing account and other information with respect to such
transfer, (C) a certificate of such Person substantially in the form
of Exhibit F and (D) unless the Restricted Global Note does not bear a
Private Placement Legend, an Opinion of Counsel to the effect that
such transfer is in compliance with the Securities Act, and (y)
satisfaction of all other applicable conditions imposed by this
Indenture and the Applicable Procedures, (1) the Registrar shall (A)
reflect in the register for the Notes a decrease in the principal
amount of the Restricted Global Note in an amount equal to the
beneficial interest transferred pursuant to this clause (vi) and (B)
instruct the Depositary to make the corresponding adjustment to its
records and debit the account of the appropriate Agent Member in
accordance with the Applicable Procedures, and (2) the Company shall
execute and the Trustee shall authenticate and deliver to or on behalf
of such Person one or more Certificated Notes of like tenor and amount
and, unless the Restricted Global Note does not bear a Private
Placement Legend, bearing the Private Placement Legend.
(vii) Any transfer of a beneficial interest in the Regulation S
Global Note to a transferee that will take delivery in the form of one
or more Certificated Notes prior to the termination of the Regulation
S Restricted Period shall be registered, subject to the Applicable
Procedures, only in accordance with this clause (vii). At any time
prior to the termination of the Regulation S Restricted Period, upon
(x) receipt by the Registrar of (A) instructions given in accordance
with the Applicable Procedures from the Depositary or its nominee on
behalf of an owner of a beneficial interest in the Regulation S Global
Note to transfer such beneficial interest to a Person that will take
delivery in the form of one or more Certificated Notes, (B) a written
order of the Depositary or its nominee given in accordance with the
Applicable Procedures containing account and other information with
respect to such transfer, (C) a certificate of such Person
substantially in the form of Exhibit F and (D) an Opinion of Counsel
to the effect that such transfer is in compliance with the Securities
Act and (y) satisfaction of all other conditions imposed by the
Applicable Procedures, (1) the Registrar shall (A) reflect in the
register for the Notes a decrease in the principal amount of the
Regulation S Global Note in an amount equal to the beneficial interest
transferred pursuant to this clause (vii) and (B) instruct the
Depositary to make the corresponding adjustment to its records and
debit the account of the appropriate Agent Member in accordance with
the Applicable Procedures, and (2) the Company shall execute and the
Trustee shall authenticate and deliver to or on behalf of such Person
one or more Certificated Notes of like tenor and amount bearing the
Private Placement Legend.
(viii) Notwithstanding any contrary provision contained herein,
Certificated Notes shall be issued in exchange for the beneficial
interests in a Global Note if at any time: (x) the Company advises the
Trustee in writing that the Depositary is unwilling or unable to
continue as depositary for such Global Note or is no longer eligible
to act as such and in each case a successor depositary is not
appointed by the Company within ninety (90) days of receipt by the
Company of notice of such inability; (y) the Company, at its option,
elects to terminate the book-entry system through the Depositary with
respect to such Global Note; or (z) after the occurrence of an Event
of Default, beneficial owners holding interests representing a
majority of the aggregate principal amount of Notes represented by
such Global Note advise the Trustee in writing through the Depositary
that the continuation of a book-entry system through the Depositary is
no longer in such beneficial owners' best interests. Upon the
occurrence of any
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of the events set forth in clauses (x), (y) and (z) immediately above,
the Trustee, upon receipt of written notice thereof and a list of all
Persons that hold a beneficial interest in such Global Note, shall
notify, through the appropriate Agent Members at the expense of the
Company, all Persons that hold a beneficial interest in such Global
Note of the issuance of Certificated Notes. Upon surrender by the
Trustee, as custodian for the Depositary, of such Global Note and
receipt from the Depositary of instructions for re-registration, the
Company shall execute and the Trustee, upon the written instructions
of the Company, shall authenticate and deliver Certificated Notes of
like tenor and amount and, unless such Global Note does not bear a
Private Placement Legend, bearing the Private Placement Legend.
Certificated Notes issued in exchange for beneficial interests in such
Global Note pursuant to this clause (viii) shall be registered in such
names and in such