EXECUTION COPY
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HEALTHSOUTH CORPORATION
and
PNC BANK, NATIONAL ASSOCIATION, as Trustee
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INDENTURE
Dated as of June 22, 1998
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CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture Act (as defined herein) and Indenture
dated as of June 22, 1998 between HEALTHSOUTH Corporation and PNC Bank, National
Association, Trustee:
SECTION OF THE ACT SECTION OF INDENTURE
310(a)(1) and (2)............................................................6.9
310(a)(3) and (4)...................................................Inapplicable
310(b)..............................................6.8 and 6.10(a), (b) and (d)
310(c)..............................................................Inapplicable
311(a)......................................................................6.14
311(b)......................................................................6.14
311(c)..............................................................Inapplicable
312(a)...............................................................4.1 and 4.2
312(b).......................................................................4.2
312(c).......................................................................4.2
313(a).......................................................................4.3
313(b)(1)...........................................................Inapplicable
313(b)(2)....................................................................4.3
313(c)................................................4.3, 5.11, 6.10, 6.11, 8.2
and 12.2
313(d).......................................................................4.3
314(a)...............................................................3.5 and 4.2
314(b)..............................................................Inapplicable
314(c)(1) and (2)...........................................................11.5
314(c)(3)...........................................................Inapplicable
314(d)..............................................................Inapplicable
314(e)......................................................................11.5
314(f)..............................................................Inapplicable
315(a), (c) and (d)..........................................................6.1
315(b)......................................................................5.11
315(e)......................................................................5.12
316(a)(1)...........................................................5.9 and 5.10
316(a)(2)...........................................................Not required
316(a) (last sentence).......................................................7.4
316(b).......................................................................5.7
317(a).......................................................................5.2
317(b)............................................................3.4(a) and (b)
318(a)......................................................................11.7
*This Cross Reference Sheet is not part of the Indenture.
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TABLE OF CONTENTS
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Page
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ARTICLE 1 DEFINITIONS ..............................................1
SECTION 1.1 Certain Terms Defined ....................................1
"Affiliate" .............................................................2
"Authenticating Agent" ..................................................2
"Authorized Newspaper" ..................................................2
"Board of Directors" ....................................................2
"Board Resolution" ......................................................2
"Business Day" ..........................................................2
"Capital Stock" .........................................................3
"Commission" ............................................................3
"Common Equity" .........................................................3
"Company" ...............................................................3
"Company Order" .........................................................3
"Consolidated Tangible Assets" ..........................................3
"Corporate Trust Office" ................................................3
"Coupon" ................................................................4
"Covenant Defeasance" ...................................................4
"Depositary" ............................................................4
"Dollar" or "$" .........................................................4
"ECU" ...................................................................4
"Event of Default" ......................................................4
"Exchange Act" ..........................................................4
"Fair Value" ............................................................4
"Foreign Currency" ......................................................4
"Holder," "Holder of Securities," "Securityholder" ......................4
"Indenture" .............................................................4
"Indenture" .............................................................5
"IRS" ...................................................................5
"Judgment Currency" .....................................................5
"Maturity" ..............................................................5
"Non-U.S. Person" .......................................................5
"Officer's Certificate" .................................................5
"144A Global Security" ..................................................5
"Opinion of Counsel" ....................................................5
"Original Issue Date" ...................................................5
"Original Issue Discount Security" ......................................5
"Outstanding" ...........................................................6
"Paying Agent" ..........................................................6
"Periodic Offering" .....................................................6
"Person" ................................................................7
"PORTAL Market" .........................................................7
"Predecessor Security" ..................................................7
"principal" .............................................................7
"QIB" or "Qualified Institutional Buyer" ................................7
"Regular Record Date" ...................................................7
"Registered Global Security" ............................................7
"Registered Security" ...................................................7
"Regulation S" ..........................................................7
"Regulation S Global Security" ..........................................7
"Required Currency" .....................................................7
"Responsible Officer" ...................................................7
"Restricted Security" ...................................................8
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"Rule 144" ..............................................................8
"Rule 144A" .............................................................8
"Rule 144K" .............................................................8
"Securities Act" ........................................................8
"Significant Subsidiary" ................................................8
"Special Record Date" ...................................................8
"Stated Maturity" .......................................................8
"Subsidiary" ............................................................9
"Transfer Restriction Termination Date" .................................9
"Trustee" ...............................................................9
"Unregistered Security" .................................................9
"U.S. Government Obligations" ...........................................9
"Voting Stock" ......................................................... 9
"Yield to Maturity" .................................................... 9
ARTICLE 2 SECURITIES ................................................ 9
SECTION 2.1 Forms Generally ...........................................10
SECTION 2.2 Form of Trustee's Certificate of Authentication ...........10
SECTION 2.3 Amount Unlimited; Issuable in Series ......................11
SECTION 2.4 Authentication and Delivery of Securities .................14
SECTION 2.5 Execution of Securities ...................................17
SECTION 2.6 Certificate of Authentication .............................18
SECTION 2.7 Denomination and Date of Securities; Payments of Interest..18
SECTION 2.8 Registration, Transfer and Exchange .......................20
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities .27
SECTION 2.10 Cancellation of Securities; Destruction Thereof ..........28
SECTION 2.11 Temporary Securities .....................................28
ARTICLE 3 COVENANTS OF THE COMPANY ..................................29
SECTION 3.1 Payment of Principal and Interest .........................29
SECTION 3.2 Offices for Payments, Etc .................................30
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee ........31
SECTION 3.4 Paying Agents .............................................31
SECTION 3.5 Compliance Certificates ...................................32
SECTION 3.6 Corporate Existence .......................................33
SECTION 3.7 Maintenance of Properties .................................33
SECTION 3.8 Payment of Taxes and Other Claims .........................33
SECTION 3.9 Luxembourg Publications ...................................34
SECTION 3.10 Usury Laws ................................................34
ARTICLE 4 SECURITYHOLDER LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.1 Company to Furnish Trustee Information
as to Names and Addresses of Securityholders ..............34
SECTION 4.2 Preservation of Information; Communications to Holders ....35
SECTION 4.3 Reports by Trustee ........................................35
SECTION 4.4 Reports by Company ........................................35
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ARTICLE 5 REMEDIES OF THE TRUSTEE AN
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined, Acceleration
of Maturity; Waiver of Default ............................36
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment ........38
SECTION 5.3 Collection of Indebtedness by Trustee;
Trustee May Prove Debt ....................................40
SECTION 5.5 Trustee May Enforce Claims Without
Possession of Securities ..................................42
SECTION 5.6 Application of Proceeds ...................................42
SECTION 5.7 Suits for Enforcement .....................................44
SECTION 5.8 Limitations on Suits by Security Holders ..................44
SECTION 5.9 Unconditional Right of Securityholders
to Institute Certain Suits ................................45
SECTION 5.10 Restoration of Rights on Abandonment of
Proceedings ...............................................45
SECTION 5.11 Powers and Remedies Cumulative; Delay
or Omission Not Waiver of Default .........................45
SECTION 5.12 Delay or Omission Not Waiver ..............................45
SECTION 5.13 Control by Holders of Securities ..........................46
SECTION 5.14 Waiver of Past Defaults ...................................46
SECTION 5.15 Trustee to Give Notice of Default, But
May Withhold in Certain Circumstances .....................47
SECTION 5.16 Right of Court to Require Filing of
Undertaking to Pay Costs ..................................47
SECTION 5.17 Waiver of Stay or Extension Laws ..........................48
ARTICLE 6 CONCERNING THE TRUSTEE ....................................48
SECTION 6.1 Duties and Responsibilities of the
Trustee; During Default; Prior to
Default ...................................................48
SECTION 6.2 Certain Rights of the Trustee .............................50
SECTION 6.3 Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof ...........................51
SECTION 6.4 Trustee and Agents May Hold Securities
or Coupons; Collections, Etc. .............................51
SECTION 6.5 Moneys Held by Trustee ....................................51
SECTION 6.6 Compensation and Indemnification of
Trustee and Its Prior Claim ...............................52
SECTION 6.7 Right of Trustee to Rely on Officer's
Certificate, Etc .... .....................................52
SECTION 6.8 Indentures Not Creating Potential
Conflicting Interests for the Trustee .....................53
SECTION 6.9 Qualification of Trustee: Conflicting Interests ...........53
SECTION 6.10 Persons Eligible for Appointment as Trustee ...............53
SECTION 6.11 Resignation and Removal; Appointment of
Successor Trustee . .......................................53
SECTION 6.12 Acceptance of Appointment by Successor Trustee ............55
SECTION 6.13 Merger, Conversion, Consolidation or
Succession to Business of Trustee .........................57
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SECTION 6.14 Preferential Collection of Claims
Against the Company .......................................57
SECTION 6.15 Appointment of Authenticating Agent .......................57
ARTICLE 7 CONCERNING THE SECURITYHOLDERS ............................59
SECTION 7.1 Evidence of Action Taken by
Securityholders ...........................................59
SECTION 7.2 Proof of Execution of Instruments and
of Holding of Securities ..................................60
SECTION 7.3 Holders to be Treated as Owners ...........................60
SECTION 7.4 Securities Owned by Company Deemed Not Outstanding ........60
SECTION 7.5 Right of Revocation of Action Taken .......................61
ARTICLE 8. SUPPLEMENTAL INDENTURES ...................................62
SECTION 8.1 Supplemental Indentures Without Consent
of Securityholders ........................................62
SECTION 8.2 Supplemental Indentures With Consent of Securityholders ...63
SECTION 8.4 Documents to be Given to Trustee ..........................65
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures ...................................66
ARTICLE 9 CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Company May Consolidate, Etc ..............................66
SECTION 9.2 Successor Entity Substituted ..............................67
SECTION 9.3 Opinion of Counsel To Be Given Trustee ....................67
ARTICLE 10 SATISFACTION AND DISCHARGE ................................67
SECTION 10.1 Satisfaction and Discharge of Indenture ..................67
SECTION 10.2 Application by Trustee of Funds
Deposited for Payment of Securities ......................72
SECTION 10.3 Repayment of Moneys Held by Paying Agent .................72
SECTION 10.4 Return of Unclaimed Moneys Held by
Trustee and Paying Agent .................................72
SECTION 10.5 Indemnity for U.S. Government Obligations ................73
ARTICLE 11 MISCELLANEOUS PROVISIONS .................................73
SECTION 11.1 Incorporators, Stockholders, Officers
and Directors of Company Exempt from
Individual Liability .....................................73
SECTION 11.2 Provisions of Indenture for the Sole
Benefit of Parties and Holders of
Securities and Coupons ...................................73
SECTION 11.3 Successors and Assigns of Company Bound by Indenture .....73
SECTION 11.4 Notices and Demands on Company, Trustee
and Holders of Securities and Coupons ....................74
SECTION 11.5 Officer's Certificates and Opinions of
Counsel; Statements to be Contained
Therein ..................................................74
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays ..........76
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SECTION 11.7 Conflict of Any Provision of Indenture
with Trust Indenture Act .................................76
SECTION 11.8 New York Law to Govern ...................................76
SECTION 11.9 Counterparts .............................................76
SECTION 11.10 Effect of Headings .......................................76
SECTION 11.11 Securities in a Foreign Currency or in ECU ...............76
SECTION 11.12 Judgment Currency ........................................77
ARTICLE 12 REDEMPTION OF SECURITIES SINKING FUNDS ...................78
SECTION 12.1 Applicability of Article .................................78
SECTION 12.2 Notice of Redemption; Partial Redemptions ................78
SECTION 12.3 Payment of Securities Called for Redemption ..............80
SECTION 12.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption .................81
SECTION 12.5 Mandatory and Optional Sinking Funds .....................81
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THIS INDENTURE, dated as of June __, 1998, by and between HEALTHSOUTH
CORPORATION, a Delaware corporation (the "Company"), and PNC BANK, NATIONAL
ASSOCIATION, a national banking association, as trustee (the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the issuance, sale, execution and
delivery, from time to time, of its unsecured evidences of unsubordinated
indebtedness (hereinafter referred to as the "Securities"), without limit as to
principal amount, issuable in one or more series, the amount and terms of each
such series to be determined as hereinafter provided; and, to provide the terms
and conditions upon which the Securities are to be issued, authenticated and
delivered, the Company has duly authorized the execution of this Indenture; and
WHEREAS, all acts and things necessary to make the Securities, when
executed by the Company and authenticated and delivered by the Trustee as in
this Indenture provided, the valid, binding and legal obligations of the
Company, and to constitute this Indenture a valid indenture and agreement
according to its terms, have been done and performed, and the execution of this
Indenture and the issuance hereunder of the Securities have in all respects been
duly authorized; and
WHEREAS, all things necessary to make this Indenture a valid indenture and
agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the
holders thereof, the Company and the Trustee mutually covenant and agree for the
equal and proportionate benefit of the respective holders from time to time of
the Securities and of the coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Certain Terms Defined
The following terms (except as otherwise expressly provided or unless the
context otherwise clearly requires) for all purposes of this Indenture and of
any indenture supplemental hereto shall have the respective meanings specified
in this Section. All other terms used in this Indenture that are defined in the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), or the
definitions of which in the Securities Act of 1933, as amended (the "Securities
Act"), are referred to in the Trust Indenture Act, including terms defined
therein by reference to the Securities Act (except as herein
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otherwise expressly provided or unless the context otherwise requires), shall
have the meaning assigned to such terms in the Trust Indenture Act and in the
Securities Act as in effect from time to time. All accounting terms used herein
and not expressly defined shall have the meanings assigned to such terms in
accordance with generally accepted accounting principles, and the term
"generally accepted accounting principles" means such accounting principles as
are generally accepted at the time of any computation unless a different time
shall be specified with respect to such series of Securities as provided for in
Section 2.3. The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision. The terms defined in this Article have
the meanings assigned to them in this Article and include the plural as well as
the singular.
"Affiliate" has the same meaning as given to that term in Rule 405 under
the Securities Act or any successor provision.
"Authenticating Agent" shall have the meaning set forth in Section 6.15.
"Authorized Newspaper" means a newspaper (which, in the case of The City of
New York, will, if practicable, be The Wall Street Journal (Eastern Edition), in
the case of the United Kingdom of Great Britain and Northern Ireland (the
"United Kingdom"), will, if practicable, be The Financial Times (London Edition)
and, in the case of the Grand Duchy of Luxembourg ("Luxembourg"), will, if
practicable, be the Luxemburger Wort) published in an official or common
language of the county of publication customarily published at least once a day
for at least five days in each calendar week and of general circulation in The
City of New York, the United Kingdom or Luxembourg, as applicable. If it shall
be impractical in the opinion of the Trustee to make any publication of any
notice required hereby in an Authorized Newspaper, any publication or other
notice in lieu thereof which is made or given with the approval of the Trustee
shall constitute a sufficient publication of such notice.
"Board of Directors" means either the Board of Directors of the Company or
any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions, certified by
the secretary or an assistant secretary of the Company to have been duly adopted
or consented to by the Board of Directors and to be in full force and effect,
and delivered to the Trustee.
"Business Day" means, with respect to any Security, a day other than any
day on which banking institutions in the city (or in any of the cities, if more
than one) in which amounts are payable, as specified in the form of
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such Security, are authorized or required by any applicable law or regulation to
be closed.
"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 interests in (however designated) the equity (including,
without limitation, common stock, preferred stock and partnership and joint
venture interests) of such Person (excluding any debt securities that are
convertible into, or exchangeable for, such equity).
"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 and delivery of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
"Common Equity" of any Person means all Capital Stock of such Person that
is generally entitled to (a) vote in the election of directors of such Person or
(b) if such Person is not a corporation, vote or otherwise participate in the
selection of the governing body, partners, managers or others that will control
the management and policies of such Person.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Order" means a written statement, request or order of the Company
signed in its name by the chairman of the Board of Directors, the president, any
vice president or the treasurer of the Company.
"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 generally accepted accounting principles
("GAAP")) on a consolidated basis at such date, as determined in accordance with
GAAP, less all write-ups subsequent to the date of initial issuance of the
Securities 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 the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, as of the date of this Indenture,
located at 500 West Jefferson Street, Louisville, KY 40202, Attention: Corporate
Trust Administration.
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"Coupon" means any interest coupon appertaining to an Unregistered
Security.
"Covenant Defeasance" shall have the meaning set forth in Section 10.1(C).
"Defaulted Interest" has the meaning specified in Section 2.7.
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of one or more Registered Global Securities, the Person
designated as Depositary by the Company pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Registered Global
Securities of that series.
"Dollar" or "$" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the European Monetary System of the European Community.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Value" when used with respect to any Voting Stock means the fair
value as determined in good faith by the Board of Directors of the Company.
"Foreign Currency" means a currency issued by the government of a country
other than the United States of America.
"Holder," "Holder of Securities," "Securityholder" or other similar terms
mean (a) in the case of any Registered Security, the person in whose name such
Security is registered in the Security Register kept by the Company for that
purpose in accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon appertaining
thereto, as the case may be.
"Indenture" means this instrument as originally executed and delivered or,
if amended or supplemented as herein provided, as so amended or supplemented or
both, and
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shall include the forms and terms of particular series of Securities established
as contemplated hereunder.
"Indenture" means this instrument as originally executed and delivered or,
if amended or supplemented as herein provided, as so amended or supplemented or
both, and shall include the forms and terms of particular series of Securities
established as contemplated hereunder.
"Interest Payment Date," means the Stated Maturity of an installment of
interest on such Security.
"IRS" means the Internal Revenue Service of the United States Department of
the Treasury, or any successor entity.
"Judgment Currency" has the meaning set forth in Section 11.12.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Non-U.S. Person" means any person that is not a "U.S. person" as such term
is defined in Rule 902 under the Securities Act.
"Officer's Certificate" means a certificate signed by the chairman of the
Board of Directors, the president or any vice president or the treasurer of the
Company and delivered to the Trustee. Each such certificate shall comply with
Section 314 of the Trust Indenture Act and include the statements provided for
in Section 11.5.
"144A Global Security" has the meaning set forth in Section 2.8(b)(i).
"Opinion of Counsel" means an opinion in writing signed by legal counsel
who may be an employee of the Company or other counsel satisfactory to the
Trustee. Each such opinion shall comply with Section 314 of the Trust Indenture
Act and include the statements provided for in Section 11.5.
"Original Issue Date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides for an
amount less than the principal amount thereof to be due and
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payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"Outstanding" (except as otherwise provided in Section 7.4), when used with
reference to Securities, means, subject to the provisions of Section 7.4, as of
any particular time, all Securities authenticated and delivered by the Trustee
under this Indenture, except
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys or U.S. Government Obligations (as provided for in Section
10.1) in the necessary amount shall have been deposited in trust with the
Trustee or with any Paying Agent (other than the Company) or shall have
been set aside, segregated and held in trust by the Company for the Holders
of such Securities (if the Company shall act as its own Paying Agent),
provided, that if such Securities, or portions thereof, are to be redeemed
prior to the Maturity thereof, notice of such redemption shall have been
given as herein provided, or provisions satisfactory to the Trustee shall
have been made for giving such notice; and
(c) Securities which shall have been paid or in substitution for which
other Securities shall have been authenticated and delivered pursuant to
the terms of Section 2.9 (except with respect to any such Security as to
which proof satisfactory to the Trustee is presented that such Security is
held by a Person in whose hands such Security is a legal, valid and binding
obligation of the Company).
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the Maturity thereof pursuant to Section 5.2.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Periodic Offering" means an offering of Securities of a series from time
to time, the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the Stated Maturity or
Maturities thereof and the redemption provisions, if any, with respect thereto,
are to be determined
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by the Company or its agents upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"PORTAL Market" means Private Offerings, Resales and Trading through
Automatic Linkages Market.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.4 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"principal" whenever used with reference to the Securities or any Security
or any portion thereof, shall be deemed to include "and premium, if any,"
provided, however, that such inclusion of premium, if any, shall under no
circumstances result in the double counting of such premium for the purpose of
any calculation required hereunder.
"QIB" or "Qualified Institutional Buyer" means "Qualified Institutional
Buyer" as such term is defined in Rule 144A under the Securities Act.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated in Section 2.3.
"Registered Global Security" means a Security evidencing all or a part of a
series of Registered Securities, issued to the Depositary for such series in
accordance with Section 2.4, and bearing the legend prescribed in Section 2.4
and any other legend required by the Depositary for such series.
"Registered Security" means any Security registered on the Security
Register of the Company.
"Regulation S" means Regulation S under the Securities Act, or any
successor provision.
"Regulation S Global Security" has the meaning set forth in Section 2.8(b).
"Required Currency" shall have the
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meaning set forth in Section 11.12 .
"Responsible Officer" when used with respect to the Trustee means the
chairman of the board of directors, any vice chairman of the board of directors,
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the president, any vice president
(whether or not designated by numbers or words added before or after the title
"Vice President"), the cashier, the secretary, the treasurer, any trust officer,
an assistant trust officer, any assistant vice president, any assistant cashier,
any assistant secretary, any assistant treasurer, or any other officer or
assistant officer of the Trustee customarily performing 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 his
or her knowledge of and familiarity with the particular subject.
"Restricted Security" has the meaning set forth in Section 2.8(b).
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144K" means Rule 144(k) under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Security" or "Securities" (except as otherwise provided in Section 7.4)
has the meaning stated in the first recital of this Indenture, or, as the case
may be, Securities that have been authenticated and delivered under this
Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 2.9.
"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.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 2.7.
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"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the 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.
"Subsidiary" of any Person means (a) 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 (b) 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.
"Transfer Restriction Termination Date" means the earlier of the first date
on which (i) the Securities of a series (other than such Securities acquired by
the Company or any Affiliate thereof since the issue date of such Securities)
may be sold pursuant to Rule 144K (or any successor provision) and (ii) all such
Securities have been exchanged or sold pursuant to an effective registration
statement.
"Trustee" means the Person identified as "Trustee" in the first paragraph
hereof and, subject to the provisions of Article 6, shall also include any
successor trustee. "Trustee" shall also mean or include each Person who is then
a trustee hereunder and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean the
trustee with respect to the Securities of such series.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" shall have the meaning set forth in Section
10.1(A).
"Voting Stock" means stock of any class or classes having general voting
power under ordinary circumstances to elect a majority of the board of
directors, managers or trustees of the corporation in question, provided, that,
for the purposes hereof, stock which carries only the right to vote
conditionally on the happening of an event shall not be considered voting stock
whether or not such event shall have happened.
"Yield to Maturity" means the yield to maturity on a series of securities,
calculated at the time of issuance of such series, or, if applicable, at the
most recent redetermination of interest on such series, and calculated in
accordance with accepted financial practice.
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ARTICLE 2
SECURITIES
SECTION 2.1 Forms Generally
The Securities of each series and the Coupons, if any, to be attached
thereto shall be substantially in such form (not inconsistent with this
Indenture) as shall be established by or pursuant to one or more Board
Resolutions (as set forth in a Board Resolution or, to the extent established
pursuant to but not set forth in a Board Resolution, an Officer's Certificate
detailing such establishment) or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture and may have
imprinted or otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as may be
required to comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to conform to general
usage, all as may be determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
SECTION 2.2 Form of Trustee's Certificate of Authentication
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities referred to in the within-mentioned
Indenture.
PNC BANK, NATIONAL ASSOCIATION
as Trustee
By
----------------------------
Authorized Signatory"
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Trustee's Certificate of
Authentication to be borne by the
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Securities of each such series shall be substantially as follows:
"This is one of the Securities referred to in the within-mentioned
Indenture.
[___________________________]
as Authenticating Agent
By
---------------------------
Authorized Signatory"
SECTION 2.3 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. With respect to each
such series there shall be established in or pursuant to one or more Board
Resolutions (and to the extent established pursuant to but not set forth in a
Board Resolution, in an Officer's Certificate detailing such establishment) or
established in one or more indentures supplemental hereto, prior to the initial
issuance of Securities of any series,
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series, and which may be part of a series of Securities previously issued;
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or currency in which the
Securities of the series are denominated (including, but not limited to,
any Foreign Currency or ECU);
(4) the date or dates on which the principal of the Securities of the
series is payable;
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue,
on which such interest shall be payable and (in the case of
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Registered Securities) on which a record shall be taken for the
determination of Holders to whom interest is payable and/or the method by
which such rate or rates or date or dates shall be determined;
(6) the place or places where the principal of and any interest on
Securities of the series shall be payable, if other than as provided in
Section 3.2;
(7) the right, if any, of the Company to redeem Securities, in whole
or in part, at its option and the period or periods within which, the price
or prices at which and any terms and conditions upon which Securities of
the series may be so redeemed, pursuant to any sinking fund or otherwise;
(8) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder thereof
and the price or prices at which and the period or periods within which and
any terms and conditions upon which Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof in the case of Registered Securities, or $1,000 and $5,000 in the
case of Unregistered Securities, the denominations in which Securities of
the series shall be issuable;
(10) if other than the entire principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof;
(11) if other than the coin or currency in which the Securities of the
series are denominated, the coin or currency in which payment of the
principal of or interest on the Securities of such series shall be payable;
(12) if the principal of or interest on the Securities of the series
are to be payable, at the election of the Company or a Holder thereof, in a
coin or currency other than that in which the Securities are denominated,
the period or periods within which, and the terms and conditions upon
which, such election may be made;
(13) if the amount of payments of principal of and interest on the
Securities of the series may be determined with reference to an index based
on a coin or currency other than that in which the Securities of the series
are denominated, the manner in which such
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amounts shall be determined;
(14) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether all or a portion of such
Securities will be issuable as Registered Global Securities) or
Unregistered Securities (with or without Coupons), or any combination of
the foregoing, any restrictions applicable to the offer, sale or delivery
of Unregistered Securities or the payment of interest thereon and, if other
than as provided in Section 2.8, the terms upon which Unregistered
Securities of any series may be exchanged for Registered Securities of such
series and vice versa;
(15) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by a Person who is
not a U.S. person in respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Company will have the option
to redeem the Securities of the series rather than pay such additional
amounts;
(16) if the Securities of the series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(17) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars of any other agents with respect to the
Securities of such series;
(18) any other events of default or covenants with respect to the
Securities of such series;
(19) if the Securities of the series are to be convertible into or
exchangeable for any other security, the terms upon which any such
conversion or exchange may be effected; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any, appertaining thereto
shall be substantially identical, except in the case of Registered Securities as
to denomination and except as may otherwise be provided by or pursuant to the
Board Resolution or Officer's Certificate referred to above or as set forth in
any indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and may be
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issued from time to time, consistent with the terms of this Indenture, if
so provided by or pursuant to such Board Resolution, such Officer's
Certificate or in any indenture supplemental hereto.
SECTION 2.4 Authentication and Delivery of Securities.
The Company may deliver Securities of any series having attached thereto
appropriate Coupons, if any, executed by the Company to the Trustee for
authentication together with the applicable documents referred to below in this
Section 2.4, and the Trustee shall thereupon authenticate and deliver such
Securities and Coupons, if any, to or upon the order of the Company (contained
in the Company Order referred to below in this Section) or pursuant to such
procedures acceptable to the Trustee and to such recipients as may be specified
from time to time by a Company Order. The maturity date, original issue date,
interest rate and any other terms of the Securities of such series and Coupons,
if any, appertaining thereto shall be determined by or pursuant to such Company
Order and procedures. If provided for in such procedures, such Company Order may
authorize authentication and delivery pursuant to oral or electronic
instructions from the Company or its duly authorized agent or agents, which
instructions, if oral, shall be promptly confirmed in writing. In authenticating
such Securities and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive (in the case of subparagraphs (2), (3) and (4) below only at or before
the time of the first request of the Company to the Trustee to authenticate
Securities of such series) and (subject to Section 6.1) shall be fully protected
in relying upon, the following enumerated documents unless and until such
documents have been superseded or revoked:
(1) a Company Order requesting such authentication and setting forth
delivery instructions if the Securities and Coupons, if any, are not to be
delivered to the Company, provided that, with respect to Securities of a
series subject to a Periodic Offering, (a) such Company Order may be
delivered by the Company to the Trustee prior to the delivery to the
Trustee of such Securities for authentication and delivery, (b) the Trustee
shall authenticate and deliver Securities of such series for original issue
from time to time, in an aggregate principal amount not exceeding the
aggregate principal amount established for such series, pursuant to a
Company Order or pursuant to procedures acceptable to the Trustee as may be
specified from time to time by a Company Order, (c) the maturity date or
dates, original issue date or dates, interest rate or rates and any other
terms of Securities of such series shall be determined by a Company Order
or pursuant to such procedures and (d) if provided for in such procedures,
such Company Order may authorize authentication and
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delivery pursuant to oral or electronic instructions from the Company or
its duly authorized agent or agents, which instructions, if oral, shall be
promptly confirmed in writing;
(2) any Board Resolution, Officer's Certificate and/or executed
supplemental indenture referred to in Section 2.1 and 2.3 by or pursuant to
which the forms and terms of the Securities and Coupons, if any, were
established;
(3) an Officer's Certificate setting forth the form or forms and terms
of the Securities and Coupons, if any, stating that the form or forms and
terms of the Securities and Coupons, if any, have been established pursuant
to Sections 2.1 and 2.3 and comply with this Indenture, and covering such
other matters as the Trustee may reasonably request; and
(4) At the option of the Company, either one or more Opinions of
Counsel, or a letter addressed to the Trustee permitting it to rely on one
or more Opinions of Counsel, substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have
been duly authorized and established in conformity with the provisions
of this Indenture;
(b) in the case of an underwritten offering, the terms of the
Securities have been duly authorized and established in conformity
with the provisions of this Indenture, and, in the case of an offering
that is not underwritten, certain terms of the Securities have been
established pursuant to a Board Resolution, an Officer's Certificate
or a supplemental indenture in accordance with this Indenture, and
when such other terms as are to be established pursuant t procedures
set forth in a Company Order shall have been established, all such
terms will have been duly authorized by the Company and will have been
established in conformity with the provisions of this Indenture; and
(c) such Securities and Coupons, if any, when executed by the
Company and authenticated by the Trustee in accordance with the
provisions of this Indenture and delivered to and duly paid for by the
purchasers thereof, and subject to any conditions specified in such
Opinion of Counsel, will have been duly issued under this Indenture,
will be entitled to the benefits of this Indenture, and will be valid
and binding obligations of the Company, enforceable in accordance with
their respective terms except as
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the enforceability thereof may be limited by (i) bankruptcy,
insolvency or similar laws affecting creditors' rights generally, (ii)
rights of acceleration, if any, and (iii) the availability of
equitable remedies may be limited by equitable principles of general
applicability and such counsel need express no opinion with regard to
the enforceability of Section 6.6 or of a judgment denominated in a
currency other than Dollars.
In rendering such opinions, any counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium, fraudulent transfer and
other similar laws affecting the rights and remedies of creditors and is subject
to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely upon
opinions of other counsel (copies of which shall be delivered to the Trustee)
reasonably satisfactory to the Trustee, in which case the opinion shall state
that such counsel believes he and the Trustee are entitled so to rely. Such
counsel may also state that, insofar as such opinion involves factual matters,
he has relied, to the extent he deems proper, upon certificates of officers of
the Company and its subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Company or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee or a trust committee of directors or trustees shall determine that
such action would expose the Trustee to personal liability to existing Holders
or would affect the Trustee' own rights, duties or immunities under the
Securities, this Indenture or otherwise.
If the Company shall establish pursuant to Section 2.3 that all or a
portion of the Securities of a series are to be issued in the form of one or
more Registered Global Securities, then the Company shall execute and the
Trustee shall, in accordance with this Section and the Company Order with
respect to such series, authenticate and deliver one or more Registered Global
Securities that (i) shall represent and shall be denominated in an amount equal
to the aggregate principal amount of al of the Securities of such series issued
in such form and not yet canceled, (ii) shall be registered in the name of the
Depositary for such Registered Global Security or Securities or the nominee of
such Depositary, (iii) shall be delivered by the Trustee to such Depositary or
delivered or held pursuant to such Depositary's instructions and (iv) shall bear
a legend substantially to the following effect: "Unless and until it is
exchanged in whole or in part for Securities in definitive registered form, this
Security may not be transferred except as
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a whole by the Depositary to the nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Exchange Act and any other applicable statute or
regulation.
SECTION 2.5 Execution of Securities.
The Securities and each Coupon appertaining thereto, if any, shall be
signed on behalf of the Company by the chairman or vice chairman of its Board of
Directors or its president, or any executive (senior or other), a vice president
or its treasurer, under its corporate seal (except in the case of Coupons) which
may, but need not, be attested. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. The seal of the Company
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Company, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or Coupon
had not ceased to be such officer of the Company; and any Security or Coupon may
be signed on behalf of the Company by such persons as, at the actual date of the
execution of such Security or Coupon, shall be the proper officers of the
Company, although at the date of the execution and delivery of this Indenture
any such person was not such an officer.
SECTION 2.6 Certificate of Authentication.
Only such Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, executed by the Trustee by the
manual signature of one of its authorized officers, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. No Coupon
shall be entitled to the benefits of this Indenture or shall be valid and
obligatory for any purpose until the certificate of authentication on the
Security to which such Coupon appertains shall have been duly executed by the
Trustee. The execution of such certificate by the Trustee upon
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any Security executed by the Company shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of Interest.
The Securities of each series shall be issuable as Registered Securities or
Unregistered Securities in denominations established as contemplated by Section
2.3 or, with respect to the Registered Securities of any series, if not so
established, in denominations of $1,000 and any integral multiple thereof. If
denominations of Unregistered Securities of any series are not so established,
such Securities shall be issuable in denominations of $1,000 and $5,000. The
Securities of each series shall be numbered, lettered or otherwise distinguished
in such manner or in accordance with such plan as the officers of the Company
executing the same may determine with the approval of the Trustee, as evidenced
by the execution and authentication thereof.
Each Registered Security shall be dated the date of its authentication.
Each Unregistered Security shall be dated as provided in the Board Resolution
referred to in Section 2.3. The Securities of each series shall bear interest,
if any, from the date, and such interest shall be payable on the dates,
established as contemplated by Section 2.3.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest. At the option of
the Company, interest on any Security may be paid by mailing a check to the
address of the Holder thereof as such address appears in the Securities
Register.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security and
the date of
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the proposed payment, and a the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at his address as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following claus (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 2.8 Registration, Transfer and Exchange.
(a) The Company will keep at each office or agency to be maintained for the
purpose as provided in Section 3.2 for each series of Securities a register or
registers (the register maintained in such office and in any other office or
agency of the Company designated pursuant to Section 3.2 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as the Company
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may prescribe, it will provide for the registration of Registered Securities of
such series and the registration of transfer of Registered Securities of such
series. Such Security Register shall be in written form in the English language
or in any other form capable of being converted into such form within a
reasonable time. At all reasonable times such Security Register or registers
shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered
Security of any series at any such office or agency to be maintained for the
purpose as provided in Section 3.2, the Company shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Registered Security or Registered Securities of the same series, maturity
date, interest rate and original issue date in authorized denominations for a
like aggregate principal amount.
Unregistered Securities (except for any temporary global Unregistered
Securities) and Coupons (except for Coupons attached to any temporary global
Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of any series
(other than a Registered Global Security, except as set forth below) may be
exchanged for a Registered Security or Registered Securities of such series
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Registered Securities to be exchanged at the agency of the
Company that shall be maintained for such purpose in accordance with Section 3.2
and upon payment, if the Company shall so require, of the charges hereinafter
provided. If the Securities of any series are issued in both registered and
unregistered form, at the option of the Holder thereof, except as otherwise
specified pursuant to Section 2.3, Unregistered Securities of any series may be
exchanged for Registered Securities of such series having authorized
denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Company that shall
be maintained for such purpose in accordance with Section 3.2, with, in the case
of Unregistered Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default thereto appertaining, and upon payment, if the
Company shall so require, of the charges hereinafter provided. At the option of
the Holder thereof, if Unregistered Securities of any series, maturity date,
interest rate and original issue date are issued in more than one authorized
denomination, except as otherwise specified pursuant to Section 2.3, such
Unregistered Securities may be exchanged for Unregistered Securities of such
series having authorized denominations and an equal aggregate principal amount,
upon surrender of such Unregistered Securities to be exchanged at the agency of
the Company that shall be maintained for such purpose in accordance with Section
3.2 or as specified pursuant to Section 2.3, with, in the case of Unregistered
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Securities that have Coupons attached, all unmatured Coupons and all matured
Coupons in default thereto appertaining, and upon payment, if the Company shall
so require, of the charges hereinafter provided. Registered Securities of any
series may not be exchanged for Unregistered Securities of such series unless
(1) otherwise specified pursuant to Section 2.3 and (2) the Company has
delivered to the Trustee an Opinion of Counsel that (x) the Company has received
from the IRS a ruling or (y) since the date hereof, there has been a change in
the applicable Federal income tax law, in either case to the effect that the
inclusion of terms permitting Registered Securities to be exchanged for
Unregistered Securities would result in no Federal income tax effect adverse to
the Company or to any Holder. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive. All Securities and Coupons, if any, surrendered upon any exchange or
transfer provided for in this Indenture shall be promptly canceled and disposed
of by the Trustee, and the Trustee shall deliver a certificate of disposition
thereof to the Company.
All Registered Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and the Trustee duly executed, by
the Holder or his attorney duly authorized in writing.
The Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Company shall not be required to exchange or register a transfer of (a)
any Securities of any series for a period of 15 days preceding the first mailing
of notice of redemption of Securities of such series to be redeemed or (b) any
Securities selected, called or being called for redemption, in whole or in part,
except, in the case of any Security to be redeemed in part, the portion thereof
not so to be redeemed.
Notwithstanding any other provision of this Section 2.8, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Registered Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
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If at any time the Depositary for any Registered Securities of a series
represented by one or more Registered Global Securities notifies the Company
that it is unwilling or unable to continue as Depositary for such Registered
Securities or if at any time the Depositary for such Registered Securities shall
no longer be eligible under Section 2.4, the Company shall appoint a successor
Depositary eligible under Section 2.4 with respect to such Registered
Securities. If a successor Depositary eligible under Section 2.4 for such
Registered Securities is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the
Company's election pursuant to Section 2.3 that such Registered Securities be
represented by one or more Registered Global Securities shall no longer be
effective and the Company will execute, and the Trustee, upon receipt of an
Officer's Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series in definitive registered form without coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Registered Global Security or Securities representing such Registered
Securities in exchange for such Registered Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Registered Securities of any series issued in the form of one or more Registered
Global Securities shall no longer be represented by a Registered Global Security
or Securities. In such event the Company will execute, and the Trustee, upon
receipt of any Officer's Certificate for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver, Securities
of such series in definitive registered form without coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Registered Global Security or Securities representing such Registered
Securities, in exchange for such Registered Global Security or Securities.
If specified by the Company pursuant to Section 2.3 with respect to
Securities represented by a Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new Registered
Security or Securities of the same series, of any authorized denominations
as requested by such Person, in an aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Registered Global
Security; and
(ii) to such Depositary a new Registered Global
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Security in a denomination equal to the difference, if any, between the
principal amount of the surrendered Registered Global Security and the
aggregate principal amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for Securities in
definitive registered form without coupons, in authorized denominations, such
Registered Global Security shall be canceled by the Trustee or an agent of the
Company or the Trustee. Securities in definitive registered form without coupons
issued in exchange for a Registered Global Security pursuant to this Section 2.8
shall be registered in such names and in such authorized denominations as the
Depositary for such Registered Global Security, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the Trustee or
an agent of the Company or the Trustee. The Trustee or such agent shall deliver
such Securities to or as directed by the Persons in whose names such Securities
are so registered.
All Securities issued upon any transfer or exchange of Securities shall be
valid obligations of the Company, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Notwithstanding anything herein or in the terms of any series of Securities
to the contrary, none of the Company, the Trustee or any agent of the Company or
the Trustee (any of which, other than the Company, shall rely on an Officer's
Certificate and an Opinion of Counsel) shall be required to exchange any
Unregistered Security for a Registered Security if such exchange would result in
Federal income tax consequences adverse to the Company (such as, for example,
the inability of the Company to deduct from its income, as computed for Federal
income tax purposes, the interest payable on the Unregistered Securities) under
then applicable United States Federal income tax laws.
(b)(i) Securities that are distributed to QIBs will be represented by a
global Security (the "144A Global Security"). Securities that are distributed to
Non-U.S. Persons will be represented by a global Security (the "Regulation S
Global Security"). Each of the 144A Global Security and the Regulation S Global
Security shall be referred to herein as a "Global Security." If Global
Securities are issued, transfers of interests in the Securities between the 144A
Global Security and the Regulation S Global Security will be made in accordance
with the standing instructions and procedures of the Depositary and its
participants and the Trustee shall make appropriate endorsements to reflect
increases or decreases in the principal amounts of such Global Securities to
reflect any such transfers.
Except as provided below, beneficial owners of a Security in global form
shall not be entitled to have certificates registered in their names, will not
receive or be
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entitled to receive physical delivery of certificates in definitive form and
will not be considered Holders of such Securities in global form.
(ii) So long as the Securities are eligible for book-entry settlement, and
to the extent that Securities are held by QIBs or Non-U.S. Persons, as the case
may be, in a Global Security, or unless otherwise required by law, upon any
transfer of a definitive Security to a QIB in accordance with Rule 144A or to a
Non-U.S. Person in accordance with Regulation S, unless otherwise requested by
the transferor, and upon receipt of the definitive Security or Securities being
so transferred, together with a certification from the transferor that the
transfer is being made in compliance with Rule 144A or Regulation S, as the case
may be (or other evidence satisfactory to the Trustee), the Trustee shall make
an endorsement on any 144A Global Security or any Regulation S Global Security,
as the case may be, to reflect an increase in the aggregate principal amount of
the Securities represented by such Global Security, and the Trustee shall cancel
such definitive Security or Securities in accordance with the standing
instructions and procedures of the Depositary, the aggregate principal amount of
Securities represented by such Global Security to be increased accordingly;
provided that no definitive Security, or portion thereof, in respect of which
the Company or an Affiliate of the Company held any beneficial interest shall be
included in such Global Security until such definitive Security is freely
tradable in accordance with Rule 144(k); provided further that the Trustee
shall, at the written request of the Company, issue Securities in definitive
form upon any transfer of a beneficial interest in the Global Security to the
Company or any Affiliate of the Company.
Any Global Security may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the provisions
of this Indenture as may be required by the Depositary, by the New York Stock
Exchange or by the National Association of Securities Dealers, Inc. in order for
the Securities to be tradable on the PORTAL Market or as may be required for the
Securities to be tradable on any other market developed for trading of
securities pursuant to Rule 144A or required to comply with any applicable law
or any regulation thereunder or with the rules and regulations of any securities
exchange upon which the Securities may be listed or traded or to conform with
any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Securities are subject.
(iii) Each Security that bears or is required to bear the legend set forth
in this Section 2.8(b) (a "Restricted Security") shall be subject to the
restrictions on transfer provided in the legend set forth in this Section
2.8(b), unless such restrictions on transfer shall be waived by the written
consent of the Company, and the Holder of each Restricted Security, by such
Holder's acceptance thereof, agrees to be bound by such restrictions on
transfer. As used in this Section
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2.8(b), the term "transfer" encompasses any sale, pledge, transfer or other
disposition of any Restricted Security.
Prior to the Transfer Restriction Termination Date, any certificate
evidencing a Security shall bear a legend in substantially the following form,
unless otherwise agreed by the Company (with written notice thereof to the
Trustee):
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITE
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THE SECURITY EVIDENCED HEREBY IN AN OFFSHORE
TRANSACTION, (2) AGREES THAT IT WILL NOT PRIOR TO THE EXPIRATION OF THE
HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER
RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), RESELL
OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY EXCEPT (A) TO
HEALTHSOUTH CORPORATION (THE "COMPANY") OR ANY SUBSIDIARY THEREOF, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER
THE SECURITIES ACT, (D) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR
TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE FOR THE SECURITIES A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE), (E) OUTSIDE THE UNITED
STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR (F) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER
OF THE SECURITY EVIDENCED HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE
144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER
MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO
THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE FOR
THE SECURITIES. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR OR A PURCHASER WHO IS NOT A U.S. PERSON, THE HOLDER MUST, PRIOR TO
SUCH
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TRANSFER, FURNISH TO THE TRUSTEE FOR THE SECURITIES SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY OR THE TRUSTEE MAY
REASONABLY REQUIRE, TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED AFTER THE
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY
EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
Following the Transfer Restriction Termination Date, any Security or
security issued in exchange or substitution therefor (other than Securities
acquired by the Company or any Affiliate thereof since the issue date of the
Securities) may upon surrender of such Security for exchange to the Security
Registrar in accordance with the provisions of this Section 2.8, be exchanged
for a new Security or Securities, of like tenor and aggregate principal amount,
which shall not bear the restrictiv legend required by this Section 2.8(b).
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security or any Coupon appertaining to
any Security shall be mutilated, defaced, destroyed, lost or stolen, the Company
in its discretion may execute and, upon the written request of any officer of
the Company, the Trustee shall authenticate and deliver, a new Security of the
same series, maturity date, interest rate and original issue date, bearing a
number or other distinguishing symbol not contemporaneously outstanding, in
exchange and substitution for the mutilated or defaced Security, or in lieu of
and in substitution for the Security so destroyed, lost or stolen with Coupons
corresponding to the Coupons appertaining to the Securities so mutilated,
defaced, destroyed, lost or stolen, or in exchange or substitution for the
Security to which such mutilated, defaced, destroyed, lost or stolen Coupon
appertained, with Coupons appertaining thereto corresponding to the Coupons so
mutilated, defaced, destroyed, lost or stolen. In every case the applicant for a
substitute Security or Coupon shall furnish to the Company and to the Trustee
and any agent of the Company or the Trustee such security or indemnity as may be
required by them to indemnify and defend and to save each of them harmless and,
in every case of destruction, loss or theft, evidence to their satisfaction of
the destruction, loss or theft of such Security or Coupon and of the ownership
thereof, and in the case of mutilation or defacement shall surrender the
Security and related Coupons to th Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Company may
require the payment of a sum sufficient
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to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
or its agent connected therewith. In case any Security or Coupon which has
matured or is about to mature or has been called for redemption in full shall
become mutilated or defaced or be destroyed, lost or stolen, the Company may
instead of issuing a substitute Security, pay or authorize the payment of the
same or the relevant Coupon (without surrender thereof except in the case of a
mutilated or defaced Security or Coupon), if the applicant for such payment
shall furnish to the Company and to the Trustee and any agent of the Company or
the Trustee such security or indemnity as any of them may require to save each
of them harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to th Company and the Trustee and any agent of the
Company or the Trustee evidence to their satisfaction of the destruction, loss
or theft of such Security or Coupons and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security or
Coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
or Coupon shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights set
forth in) this Indenture equally and proportionately with any and all other
Securities or Coupons of such series duly authenticated and delivered hereunder.
All Securities and Coupons shall be held and owned upon the express condition
that, to the extent permitted by law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, defaced or destroyed,
lost or stolen Securities and Coupons and shall preclude any and all other
rights or remedies notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Destruction Thereof.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer or exchange, or for credit against any payment in
respect of a sinking or analogous fund, if any, if surrendered to the Company or
any agent of the Company or the Trustee or any agent of the Trustee, shall be
delivered to the Trustee or its agent for cancellation or, if surrendered to the
Trustee, shall be canceled by it; and no Securities or Coupons shall be issued
in lieu thereof except as expressl permitted by any of the provisions of this
Indenture. The Trustee or its agent shall dispose of canceled Securities and
Coupons held by it and deliver a certificate of disposition to the Company. If
the Company or its agent shall acquire any of the Securities or Coupons, such
acquisition shall not operate
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as a redemption or satisfaction of the indebtedness represented by such
Securities or Coupons unless and until the same are delivered to the Trustee or
its agent for cancellation.
SECTION 2.11 Temporary Securities.
Pending the preparation of definitive Securities for any series, the
Company may execute and the Trustee shall authenticate and deliver temporary
Securities for such series (printed, lithographed, typewritten or otherwise
reproduced, in each case in form satisfactory to the Trustee). Temporary
Securities of any series shall be issuable as Registered Securities without
coupons, or as Unregistered Securities with or without coupons attached thereto,
of any authorized denomination, and substantially in the form of the definitive
Securities of such series but with such omissions, insertions and variations as
may be appropriate for temporary Securities, all as may be determined by the
Company with the concurrence of the Trustee as evidenced by the execution and
authentication thereof. Temporary Securities may contain such references to any
provisions of this Indenture as may be appropriate. Every temporary Security
shall be executed by the Company and be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with like effect, as
the definitive Securities. Without unreasonable delay the Company shall execute
and shall furnish definitive Securities of such series and thereupon temporary
Registered Securities of such series may be surrendered in exchange therefor
without charge at each office or agency to be maintained by the Company for that
purpose pursuant to Section 3.2 and, in the case of Unregistered Securities, at
any agency maintained by the Company for such purpose as specified pursuant to
Section 2.4, and the Trustee shall authenticate and deliver in exchange for such
temporary Securities of such series an equal aggregate principal amount of
definitive Securities of the same series having authorized denominations and, in
the case of Unregistered Securities, having attached thereto any appropriate
Coupons. Until so exchanged, the temporary Securities of any series shall be
entitled to the same benefits under this Indenture as definitive Securities of
such series, unless otherwise established pursuant to Section 2.3. The
provisions of this Section are subject to any restrictions or limitations on the
issue and delivery of temporary Unregistered Securities of any series that may
be established pursuant to Section 2.4 (including any provision that
Unregistered Securities of such series initially be issued in the form of a
single global Unregistered Security to be delivered to a depositary or agency
located outside the United States and the procedures pursuant to which
definitive or global Unregistered Securities of such series would be issued in
exchange for such temporary global Unregistered Security).
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ARTICLE 3
COVENANTS OF THE COMPANY
SECTION 3.1 Payment of Principal and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or cause to be paid the
principal of, and interest on, if any, each of the Securities of such series
(together with any additional amounts payable pursuant to the terms of such
Securities) at the place or places, at the respective time or times and in the
manner provided in such Securities and in the Coupons, if any, appertaining
thereto and in this Indenture. The interest on Securities with Coupons attached
(together with any additional amounts payable pursuant to the terms of such
Securities) shall be payable only upon presentation and surrender of the several
Coupons for such interest installments as are evidenced thereby as they
severally mature. If any temporary Unregistered Security provides that interest
thereon may be paid while such Security is in temporary form, the interest on
any such temporary Unregistered Security (together with any additional amounts
payable pursuant to the terms of such Security) shall be paid, as to the
installments of interest evidenced by Coupons attached thereto, if any, only
upon presentation and surrender thereof, and, as to the other installments of
interest, if any, only upon presentation of such Securities for notation thereon
of the payment of such interest, in each case subject to any restrictions that
may be established pursuant to Section 2.4. The interest, if any, on Registered
Securities (together with any additional amounts payable pursuant to the terms
of such Securities) shall be payable only to or upon the written order of the
Holders thereof and, at the option of the Company, may be paid by wire transfer
or by mailing checks for such interest payable to or upon the written order of
such Holders at their last addresses as they appear on the Security Register of
the Company.
SECTION 3.2 Offices for Payments, Etc.
So long as any Registered Securities are authorized for issuance pursuant
to this Indenture or are outstanding hereunder, the Company will maintain in the
Borough of Manhattan, The City of New York, an office or agency where the
Registered Securities of each series may be presented for payment, where the
Securities of each series may be presented for exchange as is provided in this
Indenture and, if applicable, pursuant to Section 2.4 and where the Registered
Securities of each series ma be presented for registration of transfer as in
this Indenture provided.
The Company will maintain one or more offices or agencies in a city or
cities located outside the United States (including any city in which such an
agency is required to be
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maintained under the rules of any stock exchange on which the Securities of such
series are listed) where the Unregistered Securities, if any, of each series and
Coupons, if any, appertaining thereto may be presented for payment. No payment
on any Unregistered Security or Coupon will be made upon presentation of suc
Unregistered Security or Coupon at an agency of the Company within the United
States nor will any payment be made by transfer to an account in, or by mail to
an address in, the United States unless pursuant to applicable United States
laws and regulations then in effect such payment can be made without tax
consequences adverse to the Company. Notwithstanding the foregoing, payments in
Dollars of Unregistered Securities of any series and Coupons appertaining
thereto which are payable in Dollars may be made at an agency of the Company
maintained in the Borough of Manhattan, The City of New York if such payment in
Dollars at each agency maintained by the Company outside the United States for
payment on such Unregistered Securities is illegal or effectively precluded by
exchange controls or other similar restrictions.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where notices and demands to or upon the Company in
respect of the Securities of any series, the Coupons appertaining thereto or
this Indenture may be served.
The Company will give to the Trustee written notice of the location of each
such office or agency and of any change of location thereof. In case the Company
shall fail to maintain any agency required by this Section to be located in the
Borough of Manhattan, The City of New York, or shall fail to give such notice of
the location or for any change in the location of any of the above agencies,
presentations and demands may be made and notices may be served at the Corporate
Trust Office of the Trustee.
The Company may from time to time designate one or more additional offices
or agencies where the Securities of a series and any Coupons appertaining
thereto may be presented for payment, where the Securities of that series may be
presented for exchange as provided in this Indenture and pursuant to Section 2.4
and where the Registered Securities of that series may be presented for
registration of transfer as in this Indenture provided, and the Company may from
time to time rescind any such designation, as the Company may deem desirable or
expedient; provided, that no such designation or rescission shall in any manner
relieve the Company of its obligations to maintain the agencies provided for in
this Section. The Company shall give to the Trustee prompt written notice of any
such designation or rescission thereof.
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a
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vacancy in the office of Trustee, will appoint, in the manner provided in
Section 6.10, a Trustee, so that there shall at all times be a Trustee with
respect to each series of Securities hereunder.
SECTION 3.4 Paying Agents.
Whenever the Company shall appoint a Paying Agent other than the Trustee
with respect to the Securities of any series, it will cause such Paying Agent to
execute and deliver to the Trustee an instrument in which such agent shall agree
with the Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Company or by any other
obligor on the Securities of such series) in trust for the benefit of the
Holders of the Securities of such series, or Coupons appertaining thereto,
if any, or of the Trustee;
(b) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Securities of such series) to make any
payment of the principal of or interest on the Securities of such series
when the same shall be due and payable; and
(c) that it will pay any such sums so held in trust by it to the
Trustee upon the Trustee's written request at any time during the
continuance of the failure referred to in the foregoing clause (b).
The Company will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the Paying Agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of any
failure to take such action.
If the Company shall act as its own Paying Agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such series or the
Coupons appertaining thereto a sum sufficient to pay such principal or interest
so becoming due. The Company will promptly notify the Trustee of any failure to
take such action.
Anything in this Section to the contrary notwithstanding, but subject to
Section 10.1, the Company may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series of
Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for any such series by the Company or any Paying
Agent hereunder, as required by this Section, such sums
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to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section is subject to the provisions of
Sections 10.3 and 10.4.
SECTION 3.5 Compliance Certificates.
The Company will furnish to the Trustee on or before January 31 in each
year (beginning with January 31, 1999) a brief certificate (which need not
comply with Section 11.5) from the principal executive, financial or accounting
officer of the Company stating that in the course of the performance by the
signer of his or her duties as an officer of the Company he or she would
normally have knowledge of any default or non-compliance by the Company in the
performance of any covenants or conditions contained in this Indenture, stating
whether or not he or she has knowledge of any such default or non-compliance
and, if so, describing each such default or non- compliance of which the signer
has knowledge and the nature thereof.
SECTION 3.6 Corporate Existence.
Subject to Article 9, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and the rights (charter and statutory), licenses and franchises of the Company
and its Subsidiaries; provided, that the Company shall not be required to
preserve any such right, license or franchise, if, in the judgment of the
Company, the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries taken as a whole and the loss
thereof is not disadvantageous in any material respect to the Securityholders.
SECTION 3.7 Maintenance of Properties.
The Company will cause all properties used in or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair, and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary, so that the business carried on in connection therewith may be
properly and advantageously conducted at all time except to the extent that the
Company may be prevented from so doing by circumstances beyond its control;
provided, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is, in the judgment
of the Company desirable in the conduct of the business of the Company or any
Subsidiary and not disadvantageous in any material respect to the
Securityholders.
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SECTION 3.8 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent: (a) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary; and (b) all lawful claims
for labor, materials, and supplies, which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings; and provided further
that the Company shall not be required to cause to be paid or discharged any
such tax, assessment, charge or claim if the Company shall determine that such
payment is not advantageous to the conduct of the business of the Company and
its Subsidiaries taken as a whole and that the failure so to pay or discharge is
not disadvantageous in any material respect to the Securityholders.
SECTION 3.9 Luxembourg Publications.
In the event of the publication of any notice pursuant to Section 5.15,
6.11(a), 6.12, 8.2, 10.4 or 13.2, the party making such publication in the
Borough of Manhattan, The City of New York and London shall also, to the extent
that notice is required to be given to Holders of Securities of any series by
applicable Luxembourg law or stock exchange regulation, as evidenced by an
Officer's Certificate delivered to such party, make a similar publication in
Luxembourg.
SECTION 3.10 Usury Laws.
The Company covenants and agrees: (a) not to insist upon, or plead, or in
any manner whatsoever claim the benefit or the advantage of the usury law of any
jurisdiction against the Trustee or the Holders in connection with any claim,
action or proceeding which may be brought by the Trustee or the Holders in order
to enforce any right or remedy under this Indenture; and (b) to resist any and
all efforts to compel the Company to claim the benefit or the advantage of the
usury law of any jurisdiction against the Trustee or the Holders in connection
with any claim, action or proceeding which may be brought by the Trustee or the
Holders in order to enforce any right or remedy under this Indenture.
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ARTICLE 4
SECURITYHOLDER LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.1 Company to Furnish Trustee Information as to Names and Addresses of
Securityholders.
If and so long as the Trustee shall not be the Security Registrar for the
Securities of any series, the Company and any other obligor on the Securities
will furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders of the
Registered Securities of such series pursuant to Section 312 of the Trust
Indenture Act:
(a) semi-annually not more than 15 days after each Regular Record Date
for the payment of interest on such Registered Securities, as hereinabove
specified, as of such record date and on dates to be determined pursuant to
Section 2.4 for non-interest bearing Registered Securities in each year;
and
(b) at such other times as the Trustee may reasonably request in
writing, within thirty days after receipt by the Company of any such
request as of a date not more than 15 days prior to the time such
information is furnished.
SECTION 4.2 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 4.1 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 4.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and
the corresponding rights and duties of the Trustee, shall be as provided by
the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason
of any disclosure of information as to names
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and addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 4.3 Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
thereto.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Securities are listed on any stock
exchange.
SECTION 4.4 Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act, shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined, Acceleration of Maturity; Waiver of
Default.
"Event of Default" with respect to Securities of any series, wherever used
herein, means each one of the following events which shall have occurred and be
continuing (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(a) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
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(b) default in the payment of all or any part of the principal, or any
premium, on any of the Securities of such series as and when the same shall
become due and payable either at Maturity, upon any redemption, by
declaration or otherwise; or
(c) default in the payment of any sinking fund installment as and when
the same shall become due and payable by the terms of the Securities of
such series; or
(d) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in the
Securities of such series or contained in this Indenture (other than a
covenant or agreement included in this Indenture solely for the benefit of
a series of Securities other than such series) for a period of 60 days
after the date on which written notice specifying such failure, stating
that such notice is a "Notice of Default" hereunder and demanding that the
Company remedy the same, shall have been given by registered or certified
mail, return receipt requested, to the Company by the Trustee, or to the
Company and the Trustee by the holders of at least 25% in aggregate
principal amount of the Outstanding Securities of the series to which such
covenant or agreement relates; or
(e) default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or any Subsidiary or under
any mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any indebtedness for money borrowed
by the Company or any Subsidiary, whether such indebtedness now exists or
shall hereafter be created, if (i) such default results in such
indebtedness becoming or being declared due and payable prior to the date
on which it would otherwise become due and payable, (ii) the principal
amount of such indebtedness, together with the principal amount of any
other such indebtedness which has been so accelerated, aggregates
$25,000,000 or more at any one time outstanding and (iii) such indebtedness
is not discha