EXHIBIT (4)-6
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HEALTHSOUTH CORPORATION,
as Issuer,
and
THE BANK OF NEW YORK, as Trustee
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INDENTURE
Dated as of February 1, 2001
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8 1/2% Senior Notes due 2008, Series A
8 1/2% Senior Notes due 2008, Series B
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- --------
310(a)(1)....................................................................... 7.10
(a)(2)....................................................................... 7.10
(a)(3)....................................................................... N.A.
(a)(4)....................................................................... N.A
(a)(5)....................................................................... 7.10
(b).......................................................................... 7.08; 7.10; 11.02
(c).......................................................................... N.A.
311(a).......................................................................... 7.11
(b).......................................................................... 7.11
(c).......................................................................... N.A.
312(a).......................................................................... 2.05
(b).......................................................................... 11.03
(c).......................................................................... 11.03
313(a).......................................................................... 7.06
(b)(1)....................................................................... 7.06
(b)(2)....................................................................... 7.06
(c).......................................................................... 7.06; 11.02
(d).......................................................................... 7.06
314(a).......................................................................... 4.02; 4.08; 11.02
(b).......................................................................... N.A.
(c)(1)....................................................................... 11.04; 11.05
(c)(2)....................................................................... 11.04; 11.05
(c)(3)....................................................................... N.A.
(d).......................................................................... N.A.
(e).......................................................................... 11.05
(f).......................................................................... N.A.
315(a).......................................................................... 7.01; 7.02
(b).......................................................................... 7.05; 11.02
(c).......................................................................... 7.01
(d).......................................................................... 6.05; 7.01; 7.02
(e).......................................................................... 6.11
316(a) (last sentence).......................................................... 2.09
(a)(1)(A).................................................................... 6.05
(a)(1)(B).................................................................... 6.04
(a)(2)....................................................................... 8.02
(b).......................................................................... 6.07
(c).......................................................................... 8.04
317(a)(1)....................................................................... 6.08
(a)(2)....................................................................... 6.09
(b).......................................................................... 2.04
318(a).......................................................................... 11.01
N.A. means Not Applicable
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NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS
Section 1.01. Definitions....................................................................1
Section 1.02. Other Definitions.............................................................15
Section 1.03. Incorporation by Reference of Trust Indenture Act.............................16
Section 1.04. Rules of Construction.........................................................16
ARTICLE 2
THE NOTES
Section 2.01. Dating; Incorporation of Form in Indenture; Form of Notes.....................16
Section 2.02. Execution and Authentication; Appointment of Authenticating Agent.............17
Section 2.03. Registrar and Paying Agent....................................................18
Section 2.04. Paying Agent To Hold Money in Trust...........................................18
Section 2.05. Holder Lists..................................................................19
Section 2.06. [Intentionally Omitted].......................................................19
Section 2.07. Replacement Notes.............................................................19
Section 2.08. Outstanding Notes.............................................................19
Section 2.09. Treasury Notes................................................................20
Section 2.10. Temporary Notes...............................................................20
Section 2.11. Cancellation..................................................................20
Section 2.12. Defaulted Interest............................................................20
Section 2.13. Deposit of Moneys; Payments...................................................21
Section 2.14. "CUSIP" Number................................................................21
Section 2.15. Depositary....................................................................21
Section 2.16. Registration of Transfers and Exchanges.......................................22
Section 2.17. Restrictive Legends...........................................................29
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee............................................................30
Section 3.02. Selection of Notes To Be Redeemed.............................................30
Section 3.03. Notice of Redemption..........................................................31
Section 3.04. Effect of Notice of Redemption................................................32
Section 3.05. Deposit of Redemption Price...................................................32
Section 3.06. Notes Redeemed in Part........................................................33
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ARTICLE 4
COVENANTS
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Section 4.01. Payment of Notes..............................................................33
Section 4.02. Reports.......................................................................33
Section 4.03. Waiver of Stay, Extension or Usury Laws.......................................33
Section 4.04. Compliance Certificate; Notice of Default; Tax Information....................34
Section 4.05. Payment of Taxes and Other Claims.............................................34
Section 4.06. Corporate Existence...........................................................35
Section 4.07. Maintenance of Office or Agency...............................................35
Section 4.08. Compliance with Laws..........................................................35
Section 4.09. Maintenance of Properties and Insurance.......................................36
Section 4.10. Limitation on Restricted Payments.............................................36
Section 4.11. Limitation on Additional Indebtedness and Subsidiary Preferred Stock..........37
Section 4.12. Limitation on Asset Sales.....................................................38
Section 4.13. Limitation on Transactions with Affiliates....................................41
Section 4.14. Limitation on Liens...........................................................41
Section 4.15. Purchase of Notes upon a Change of Control....................................42
Section 4.16. Limitation on Restrictions on Distributions from Subsidiaries.................43
Section 4.17. Limitations on Layering Indebtedness..........................................44
ARTICLE 5
SURVIVING ENTITY
Section 5.01. Limitations on Mergers and Consolidations.....................................44
Section 5.02. Successor Substituted.........................................................44
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.............................................................45
Section 6.02. Acceleration..................................................................46
Section 6.03. Other Remedies................................................................47
Section 6.04. Waiver of Existing Defaults and Events of Default.............................47
Section 6.05. Control by Majority...........................................................48
Section 6.06. Limitation on Suits...........................................................48
Section 6.07. Rights of Holders To Receive Payment..........................................49
Section 6.08. Collection Suit by Trustee....................................................49
Section 6.09. Trustee May File Proofs of Claim..............................................49
Section 6.10. Priorities....................................................................49
Section 6.11. Undertaking for Costs.........................................................50
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ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.............................................................50
Section 7.02. Rights of Trustee.............................................................51
Section 7.03. Individual Rights of Trustee..................................................52
Section 7.04. Trustee's Disclaimer..........................................................53
Section 7.05. Notice of Defaults............................................................53
Section 7.06. Reports by Trustee to Holders.................................................53
Section 7.07. Compensation and Indemnity....................................................53
Section 7.08. Replacement of Trustee........................................................54
Section 7.09. Successor Trustee by Consolidation, Merger or Conversion......................55
Section 7.10. Eligibility; Disqualification.................................................55
Section 7.11. Preferential Collection of Claims Against Company.............................56
ARTICLE 8
MODIFICATIONS, AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders....................................................56
Section 8.02. With Consent of Holders.......................................................57
Section 8.03. Compliance with TIA...........................................................58
Section 8.04. Revocation and Effect of Consents.............................................58
Section 8.05. Notation on or Exchange of Notes..............................................58
Section 8.06. Trustee To Sign Amendments, etc...............................................59
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Satisfaction and Discharge of Indenture.......................................59
Section 9.02. Legal Defeasance..............................................................60
Section 9.03. Covenant Defeasance...........................................................60
Section 9.04. Conditions to Legal Defeasance or Covenant Defeasance.........................61
Section 9.05. Application of Trust Money....................................................62
Section 9.06. Repayment to the Company......................................................62
Section 9.07. Reinstatement.................................................................63
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ARTICLE 10
[INTENTIONALLY OMITTED]
ARTICLE 11
MISCELLANEOUS
Section 11.01. TIA Controls..................................................................63
Section 11.02. Notices.......................................................................63
Section 11.03. Communications by Holders with Other Holders..................................64
Section 11.04. Certificate and Opinion as to Conditions Precedent............................64
Section 11.05. Statements Required in Certificate and Opinion................................65
Section 11.06. Rules by Trustee and Agents...................................................65
Section 11.07. Business Days; Legal Holidays.................................................65
Section 11.08. Governing Law.................................................................65
Section 11.09. Waiver of Trial by Jury.......................................................65
Section 11.10. Submission to Jurisdiction....................................................66
Section 11.11. No Adverse Interpretation of Other Agreements.................................66
Section 11.12. No Recourse Against Others....................................................66
Section 11.13. Successors....................................................................66
Section 11.14. Multiple Counterparts.........................................................66
Section 11.15. Table of Contents, Headings, etc..............................................66
Section 11.16. Separability..................................................................66
Section 11.17. Translation...................................................................67
SIGNATURES.....................................................................................S-1
EXHIBITS
Exhibit A Form of Initial Notes
Exhibit B Form of Exchange Notes
Exhibit C Form of Rule 144A Transfer Certificate
Exhibit D Form of Regulation S Transfer Certificate
Exhibit E Form of Rule 144 Transfer Certificate
Exhibit F Form of Accredited Investor Transfer Certificate
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INDENTURE, dated as of February 1, 2001, between HEALTHSOUTH
CORPORATION, a corporation incorporated in Delaware (the "Company"), as Issuer,
and The Bank of New York, a New York banking corporation, as Trustee (the
"Trustee").
The Company has duly authorized the creation of an issue of
Series A 8 1/2% Senior Notes due 2008 and Series B 8 1/2% Senior Notes due 2008
and, to provide therefor, the Company has duly authorized the execution and
delivery of this Indenture. All things necessary to make the Notes, when duly
issued and executed by the Company, and authenticated and delivered hereunder,
the valid obligations of the Company, and to make this Indenture a valid and
binding agreement of the Company, have been done.
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions.
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"2000 Credit Agreement" means the Credit Agreement dated as of
October 31, 2000 by and among the Company, as borrower, UBS AG, Stamford Branch,
as Administrative Agent, Deutsche Bank AG New York Branch, as Syndication Agent,
the lenders party thereto from time to time, UBS Warburg LLC and Deutsche Bank
Securities Inc., as Joint Lead Arrangers, and The Industrial Bank of Japan,
Limited, as Documentation Agent, together with the related documents thereto,
including, without limitation, any security documents, if any, and all exhibits
and schedules thereto and any agreement or agreements relating to any extension,
refunding, refinancing, successor or replacement facility, whether or not with
the same lender, and whether or not the principal amount or amount of letters of
credit outstanding thereunder or the interest rate payable in respect thereof
shall be thereby increased, in each case as amended and in effect from time to
time.
"Acquired Indebtedness" means (i) with respect to any Person
that becomes a Subsidiary of the Company after the Issue Date, Indebtedness of
such Person and its Subsidiaries existing at the time such Person becomes a
Subsidiary of the Company and (ii) with respect to the Company or any of its
Subsidiaries, any Indebtedness assumed by the Company or any of its Subsidiaries
in connection with the acquisition of an asset from another Person.
"Additional Interest" has the meaning provided to such term in
the Registration Rights Agreement.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling, controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means any Registrar, Paying Agent, co-Registrar,
authenticating agent or agent for service of notices and demands.
"Asset Sale" for any Person means the sale, lease, conveyance
or other disposition (including, without limitation, by merger or consolidation,
and whether by operation of law or otherwise) of any of that Person's assets
(including, without limitation, the sale or other disposition of Capital Stock
of any Subsidiary of such Person, whether by such Person or by such Subsidiary),
whether owned on the Issue Date or subsequently acquired, in one transaction or
a series of related transactions, in which such Person and/or its Subsidiaries
sell, lease, convey or otherwise dispose of: (i) all or substantially all of the
Capital Stock of any of such Person's Subsidiaries; (ii) assets which constitute
all or substantially all of any division or line of business of such Person or
any of its Subsidiaries; or (iii) any other assets of such Person or any of its
Subsidiaries, other than in the ordinary course of business, provided, that the
Fair Market Value thereof shall be at least 1% of Consolidated Tangible Assets;
provided, however, that the following shall not constitute Asset Sales: (a)
transactions between the Company and any of its Wholly Owned Subsidiaries or
among such Wholly Owned Subsidiaries; (b) any transaction not prohibited by
Section 4.10 hereof or that constitutes a Permitted Investment; (c) any transfer
of assets (including Capital Stock) that is governed by and in accordance with
Article 5 hereof or the creation of any Lien not prohibited by Section 4.14
hereof; or (d) sales of damaged, worn-out or obsolete equipment or assets that,
in the Company's reasonable judgment, are no longer either used or useful in the
business of the Company or its Subsidiaries.
"Attributable Indebtedness" when used with respect to any Sale
and Leaseback Transaction means, as at the time of determination, the present
value (discounted at a rate equivalent to the interest rate implicit in the
lease, compounded on a semiannual basis) of the total obligations of the lessee
for rental payments, after excluding all amounts required to be paid on account
of maintenance and repairs, insurance, taxes, utilities and other similar
expenses payable by the lessee pursuant to the terms of the lease, during the
remaining term of the lease included in any such Sale and Leaseback Transaction
or until the earliest date on which the lessee may terminate such lease without
penalty or upon payment of a penalty (in which case the rental payments shall
include such penalty); provided, that the Attributable Indebtedness with respect
to a Sale and Leaseback Transaction shall be no less than the fair market value
of the property subject to such Sale and Leaseback Transaction.
"Bank Debt" means all obligations of the Company and its
Subsidiaries, now or hereafter existing under (i) the Credit Agreements, whether
for principal, interest, reimbursement of amounts drawn under letters of credit
issued pursuant thereto, guarantees in respect thereof, fees, expenses,
premiums, indemnities or otherwise, and (ii) any Indebtedness incurred by the
Company to extend, refund or refinance, in whole or in part, the Bank Debt,
including any interest and premium on any such Indebtedness.
"Board of Directors" means, with respect to any Person, the
board of directors or similar governing body of such Person or any duly
authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant Secretary of such
Person to have been duly adopted by the Board of Directors of such Person and to
be in full force and effect on the date of such certification and delivered to
the Trustee.
2
"Capital Stock" of any Person means any and all shares, rights
to purchase, warrants or options (whether or not currently exercisable),
participation or other equivalents of or interest in (however designated) the
equity (including without limitation common stock, preferred stock and
partnership, joint venture and limited liability company interests) of such
Person (excluding any debt securities that are convertible into, or exchangeable
for, such equity).
"Capitalized Lease Obligations" of any Person means the
obligation of such Person to pay rent or other amounts under a lease that is
required to be capitalized for financial reporting purposes in accordance with
GAAP, and the amount of such obligation shall be the capitalized amount thereof
determined in accordance with GAAP.
"Certificated Note" means a Note issued in certificated form
to a Person other than the Depositary.
"Change of Control" means the occurrence of any of the
following: (i) all or substantially all of the Company's assets are sold as an
entirety to any Person or related group of Persons; (ii) there shall be
consummated any consolidation or merger of the Company (A) in which the Company
is not the continuing or surviving corporation (other than a consolidation or
merger with a Wholly Owned Subsidiary of the Company in which all shares of the
Company's Common Equity outstanding immediately prior to the effectiveness
thereof are changed into or exchanged for the same consideration) or (B)
pursuant to which the Company's Common Equity would be converted into cash,
securities or other property, in each case other than a consolidation or merger
of the Company in which the holders of the Company's Common Equity immediately
prior to the consolidation or merger have, directly or indirectly, at least a
majority of the total voting power of all classes of Capital Stock entitled to
vote generally in the election of directors of the continuing or surviving
corporation immediately after such consolidation or merger in substantially the
same proportion as their ownership of the Company's Common Equity immediately
before such transaction; (iii) any Person, or any Persons acting together which
would constitute a "group" for purposes of Section 13(d) of the Exchange Act,
together with any affiliates thereof, shall beneficially own (as defined in Rule
13d-3 under the Exchange Act) at least 50% of the total voting power of all
classes of Capital Stock of the Company entitled to vote generally in the
election of directors of the Company; (iv) at any time during any consecutive
two-year period, individuals who at the beginning of such period constituted the
Board of Directors of the Company (together with any new directors whose
election by such Board of Directors or whose nomination for election by the
stockholders of the Company was approved by a vote of 66-2/3% of the directors
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors of the Company
then in office; or (v) the Company is liquidated or dissolved or adopts a plan
of liquidation or dissolution.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, the body
performing such duties at the time.
"Common Equity" of any Person means all Capital Stock of such
Person that is generally entitled to (i) vote in the election of directors of
such Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management and policies of such Person.
3
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces such party pursuant to Article 5
hereof and thereafter means such successor.
"Consolidated Amortization Expense" of any Person for any
period means the amortization expense of such Person and its Subsidiaries for
such period (to the extent included in the computation of Consolidated Net
Income of such Person), determined on a consolidated basis in accordance with
GAAP.
"Consolidated Depreciation Expense" of any Person means the
depreciation expense of such Person and its Subsidiaries for such period (to the
extent included in the computation of Consolidated Net Income of such Person),
determined on a consolidated basis in accordance with GAAP.
"Consolidated EBITDA" of any Person means, with respect to any
determination date, Consolidated Net Income, plus (i) Consolidated Income Tax
Expense, plus (ii) Consolidated Depreciation Expense, plus (iii) Consolidated
Amortization Expense, plus (iv) Consolidated Interest Expense, plus (v) all
other unusual non-cash items or non-recurring non-cash items reducing
Consolidated Net Income of such Person and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP, and less all non-cash items
increasing Consolidated Net Income of such Person and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP, in each case, for
such Person's prior four full fiscal quarters for which financial results have
been reported immediately preceding the determination date.
"Consolidated Income Tax Expense" means, for any Person for
any period, the provision for taxes based on income and profits of such Person
and its Subsidiaries to the extent such provision for income taxes was deducted
in computing Consolidated Net Income of such Person for such period, determined
on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" of any Person for any period
means, without duplication, (i) the Interest Expense of such Person and its
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP, plus (ii) (to the extent not otherwise included within the definition
of Interest Expense as imputed interest) one-third of the rental expense on
Attributable Indebtedness of such Person for such period determined on a
consolidated basis, plus (iii) the dividend requirements of such Person and its
Subsidiaries with respect to Disqualified Stock and with respect to all other
Preferred Stock of Subsidiaries of such Person (in each case whether in cash or
otherwise (except dividends payable solely in shares of Capital Stock (other
than Disqualified Stock) of such Person or such Subsidiary)) paid, accrued or
accumulated during such period times a fraction the numerator of which is one
and the denominator of which is one minus the then effective consolidated
Federal, state and local tax rate of such Person, expressed as a decimal.
"Consolidated Net Income" of any Person for any period means
the net income (or loss) of such Person and its Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP; provided that there
shall be excluded from such net income (to the extent otherwise included
therein), without duplication:
(i) the net income (or loss) of any Person (other than a
Subsidiary of the referent Person) in which any Person other than the
referent Person has an ownership interest, except to the extent that
any such income has actually been received by the referent Person or
any of
4
its Wholly Owned Subsidiaries in the form of dividends or similar
distributions during such period;
(ii) except to the extent includable in the consolidated net
income of the referent Person pursuant to the foregoing clause (i),
the net income (or loss) of any Person that accrued prior to the date
that (a) such Person becomes a Subsidiary of the referent Person or is
merged into or consolidated with the referent Person or any of its
Subsidiaries or (b) the assets of such Person are acquired by the
referent Person or any of its Subsidiaries;
(iii) the net income of any Subsidiary of the referent Person
(other than a Wholly Owned Subsidiary) to the extent that the
declaration or payment of dividends or similar distributions by such
Subsidiary of that income is not permitted by operation of the terms
of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Subsidiary
during such period;
(iv) any gain (or loss), together with any related provisions for
taxes on any such gain, realized during such period by the referent
Person or any of its Subsidiaries upon (a) the acquisition of any
securities, or the extinguishment of any Indebtedness, of the referent
Person or any of its Subsidiaries or (b) any Asset Sale by the
referent Person or any of its Subsidiaries;
(v) any extraordinary gain or extraordinary loss, together with
any related provision for taxes or tax benefit resulting from any such
extraordinary gain or extraordinary loss, realized by the referent
Person or any of its Subsidiaries during such period; and
(vi) in the case of a successor to such Person by consolidation,
merger or transfer of its assets, any earnings of the successor prior
to such merger, consolidation or transfer of assets.
"Consolidated Net Worth" of any Person as of any date means
the stockholders' equity (including any preferred stock that is classified as
equity under GAAP, other than Disqualified Stock) of such Person and its
Subsidiaries (excluding any equity adjustment for foreign currency translation
for any period subsequent to the Issue Date) on a consolidated basis at such
date, as determined in accordance with GAAP, less all write-ups subsequent to
the Issue Date in the book value of any asset owned by such Person or any of its
Subsidiaries.
"Consolidated Tangible Assets" of any Person as of any date
means the total assets of such Person and its Subsidiaries (excluding any assets
that would be classified as "intangible assets" under GAAP) on a consolidated
basis at such date, as determined in accordance with GAAP, less all write-ups
subsequent to the Issue Date in the book value of any asset owned by such Person
or any of its Subsidiaries.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New York 10286, Attention:
Corporate Trust Administration, or such other address as the Trustee may
designate from time to time by notice to the Holders and the Company, or the
principal corporate trust office of any successor Trustee (or such other address
as a successor Trustee may designate from time to time by notice to the Holders
and the Company).
5
"Credit Agreements" means (i) the Credit Agreement dated as of
June 23, 1998 by and among the Company, as borrower, Nationsbank, National
Association, as Administrative Agent and Arranger, X.X. Xxxxxx Securities Inc.,
Deutsche Bank AG and Scotiabanc, Inc., as Syndication Agents and Co-Arrangers,
and the other lenders party thereto from time to time, together with the related
documents thereto, including, without limitation, any security documents, if
any, and all exhibits and schedules thereto and any agreement or agreements
relating to any extension, refunding, refinancing, successor or replacement
facility, whether or not with the same lender, and whether or not the principal
amount or amount of letters of credit outstanding thereunder or the interest
rate payable in respect thereof shall be thereby increased, in each case as
amended and in effect from time to time and (ii) the 2000 Credit Agreement.
"Default" means any event, act or condition that is, or after
notice or the passage of time or both would be, an Event of Default.
"Disqualified Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the Stated Maturity date of the Notes.
"DTC" means The Depository Trust Company, a New York
corporation.
"DTC Letter of Representations" shall mean the Letter of
Representations, dated the Issue Date, among the Company, DTC and the Trustee.
"EBITDA Coverage Ratio" with respect to any period means the
ratio of (i) Consolidated EBITDA of the Company to (ii) the aggregate amount of
Consolidated Interest Expense of the Company for such period; provided, however,
that if any calculation of the Company's EBITDA Coverage Ratio requires the use
of any quarter prior to the Issue Date, such calculation shall be made on a pro
forma basis, giving effect to the issuance of the Notes and the use of the net
proceeds therefrom as if the same had occurred at the beginning of the
four-quarter period used to make such calculation; and provided further that if
any such calculation requires the use of any quarter prior to the date that any
Asset Sale was consummated, or that any Indebtedness was incurred, or that any
acquisition of a hospital or other healthcare facility or any assets purchased
outside the ordinary course of business was effected, by the Company or any of
its Subsidiaries, such calculation shall be made on a pro forma basis, giving
effect to each such Asset Sale, incurrence of Indebtedness or acquisition, as
the case may be, and the use of any proceeds therefrom, as if the same had
occurred at the beginning of the four-quarter period used to make such
calculation.
"Eligible Investments" of any Person means Investments of such
Person in:
(i) direct obligations of, or obligations the payment of which is
guaranteed by, the United States of America or an interest in any
trust or fund that invests solely in such obligations or repurchase
agreements, properly secured, with respect to such obligations;
(ii) direct obligations of agencies or instrumentalities of the
United States of America having a rating of A or higher by Standard &
Poor's Corporation or A2 or higher by Xxxxx'x Investors Service, Inc.;
6
(iii) a certificate of deposit issued by, or other
interest-bearing deposits with, a bank having its principal place of
business in the United States of America and having equity capital of
not less than $250,000,000;
(iv) a certificate of deposit by, or other interest-bearing
deposits with, any other bank organized under the laws of the United
States of America or any state thereof, provided that such deposit is
either (a) insured by the Federal Deposit Insurance Corporation or (b)
properly secured by such bank by pledging direct obligations of the
United States of America having a market value of not less than the
face amount of such deposits;
(v) prime commercial paper maturing within 270 days of the
acquisition thereof and, at the time of acquisition, having a rating
of A-1 or higher by Standard & Poor's Corporation, or P-1 or higher by
Xxxxx'x Investors Service, Inc.; or
(vi) eligible banker's acceptances, repurchase agreements and
tax-exempt municipal bonds having a maturity of less than one year, in
each case having a rating, or that is the full recourse obligation of
a person whose senior debt is rated A or higher by Standard & Poor's
Corporation or A2 or higher by Xxxxx'x Investors Service, Inc.
"Equity Offering" means a primary offering of Capital Stock of
the Company (other than Disqualified Stock or Preferred Stock) pursuant to a
registration statement filed with the Commission in accordance with the
Securities Act and declared effective by the staff of the Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means the 8 1/2% Senior Notes due 2008,
Series B (the terms of which are identical to the Initial Notes except that,
unless any Exchange Notes shall be issued as Private Exchange Notes (as defined
in the Registration Rights Agreement), the Exchange Notes shall be registered
under the Securities Act, and shall not contain the restrictive legend on the
face of the form of the Initial Notes), to be issued in exchange for the Initial
Notes pursuant to the registered Exchange Offer and a Private Exchange (as
defined in the Registration Rights Agreement).
"Exchange Offer" means the registration by the Company under
the Securities Act pursuant to a registration statement of the offer by the
Company to each Holder of the Initial Notes to exchange all the Initial Notes
held by such Holder for the Exchange Notes in an aggregate principal amount
equal to the aggregate principal amount of the Initial Notes held by such
Holder, all in accordance with the terms and conditions of the Registration
Rights Agreement.
"Exempted Debt" means the sum of the following as of any date
of determination: (i) Indebtedness of the Company and its Subsidiaries incurred
after the Issue Date and secured by Liens not otherwise permitted by the
"Limitations on Liens" covenant and (ii) Attributable Indebtedness of the
Company and its Subsidiaries in respect of every Sale and Leaseback Transaction
entered into after the Issue Date.
"Existing Indebtedness" means all of the Indebtedness of the
Company and its Subsidiaries that is outstanding on the Issue Date.
7
"Fair Market Value" of any asset or items means the fair
market value of such asset or items as determined in good faith by the Board of
Directors and evidenced by a resolution of the Board of Directors.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, as from time to time in effect.
"guarantee" means, as applied to any obligation, (a) a
guarantee (other than by endorsement or negotiable instruments for collection in
the ordinary course of business), direct or indirect, in any manner, of any part
of all of such obligation and (b) an agreement, direct or indirect, contingent
or otherwise, the practical effect of which is to assure in any way the payment
or performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down under letters of credit.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any interest rate swap agreement, foreign currency
exchange agreement, interest rate collar agreement, option or futures contract
or other similar agreement or arrangement relating to interest rates or foreign
exchange rates.
"Holder" means a Person in whose name a Note is registered on
the Registrar's books or records.
"Indebtedness" of any Person at any date means, without
duplication: (i) all indebtedness of such Person for borrowed money (whether or
not the recourse of the lender is to the whole of the assets of such Person or
only to a portion thereof); (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments; (iii) all obligations of
such Person in respect of letters of credit or other similar instruments (or
reimbursement obligations with respect thereto); (iv) all obligations of such
Person with respect to Hedging Obligations (other than those that fix the
interest rate on variable rate indebtedness otherwise permitted by this
Indenture or that protect the Company and/or its Subsidiaries against changes in
foreign exchange rates); (v) all obligations of such Person to pay the deferred
and unpaid purchase price of property or services, except trade payables and
accrued expenses incurred in the ordinary course of business; (vi) all
Capitalized Lease Obligations of such Person; (vii) all Indebtedness of others
secured by a Lien on any asset of such Person, whether or not such Indebtedness
is assumed by such Person; (viii) all Indebtedness of others guaranteed by such
Person to the extent of such guarantee; (ix) all Attributable Indebtedness; and
(x) all Disqualified Stock of such Person and its Subsidiaries and all other
Preferred Stock of Subsidiaries of such Person valued at the greater of (a) the
voluntary or involuntary liquidation preference of such Disqualified Stock or
such Preferred Stock, as the case may be, and (b) the aggregate amount payable
upon purchase, redemption, defeasance or payment of such Disqualified Stock or
such Preferred Stock, as the case may be. The amount of Indebtedness of any
Person at any date shall be the outstanding balance at such date of all
unconditional obligations plus past due interest as described above, the maximum
liability of such Person for any such contingent obligations at such date and,
in the case of clause (vii), the amount of the Indebtedness secured.
8
"Indenture" means this Indenture as amended, restated or
supplemented from time to time.
"Initial Notes" means the 8 1/2% Senior Notes due 2008, Series
A of the Company issued on the Issue Date and authenticated and delivered under
this Indenture pursuant to Section 2.02 of this Indenture and any other notes
(other than Exchange Notes) issued after the Issue Date in accordance with
clause (iii) of the fourth paragraph of Section 2.02.
"Initial Purchasers" refers to UBS Warburg LLC, Deutsche Banc
Alex. Xxxxx Inc., Xxxxx Securities Inc., First Union Securities, Inc. and Scotia
Capital (USA) Inc.
"Interest Expense" of any Person for any period means the
aggregate amount of interest which, in accordance with GAAP, would be set
opposite the caption "interest expense" or any like caption on an income
statement for such Person (including, without limitation or duplication, imputed
interest included in Capitalized Lease Obligations, all commissions, discounts
and other fees and charges owed with respect to letters of credit and bankers'
acceptance financing, the net costs associated with Hedging Obligations,
amortization of financing fees and expenses, the interest portion of any
deferred payment obligation, amortization of discount and all other non-cash
interest expense other than interest amortized to cost of sales) plus the
aggregate amount, if any, by which such interest expense was reduced as a result
of the amortization of deferred debt restructuring credits for such period.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Notes as specified in the forms of Note attached
hereto as Exhibits A and B.
"Investments" of any Person means: (i) all investments by such
Person in any other Person in the form of loans, advances or capital
contributions (excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business); (ii) all guarantees of
Indebtedness or other obligations of any other Person by such Person; (iii) all
purchases (or other acquisitions for consideration) by such Person of
Indebtedness, Capital Stock or other securities of any other Person; and (iv)
all other items that would be classified as investments (including, without
limitation, purchases of assets outside the ordinary course of business) on a
balance sheet of such Person prepared in accordance with GAAP.
"Issue Date" means February 1, 2001, the date the Initial
Notes are initially issued.
"Joint Venture" means any Person at least a majority of whose
revenues result from healthcare related business of facilities.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or other similar encumbrance of any kind in
respect of such asset, whether or not filed, recorded or otherwise perfected
under applicable law (including, without limitation, any conditional sale or
other title retention agreement, and any financing lease in the nature thereof,
any agreement to sell, and any filing of, or agreement to give, any financing
statement (other than notice filings not perfecting a security interest) under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
9
"Net Proceeds" with respect to any Asset Sale means (i) cash
(in U.S. dollars or freely convertible into U.S. dollars) received by the
Company or any of its Subsidiaries from such Asset Sale (including, without
limitation, cash received as consideration for the assumption or incurrence of
liabilities incurred in connection with or in anticipation of such Asset Sale),
after (a) provision for all income or other taxes measured by or resulting from
such Asset Sale or the transfer of the proceeds of such Asset Sale to the
Company or any of its Subsidiaries, (b) payment of all commissions and other
fees and expenses related to such Asset Sale and (c) deduction of an appropriate
amount to be provided by the Company or any of its Subsidiaries as a reserve, in
accordance with GAAP, against any liabilities associated with the assets sold or
otherwise disposed of in such Asset Sale and retained by the Company or any of
its Subsidiaries after such Asset Sale (including, without limitation, pension
and other post-employment benefit liabilities and liabilities related to
environmental matters) or against any indemnification obligations associated
with the sale or other disposition of the assets sold or otherwise disposed of
in such Asset Sale and (ii) all non-cash consideration received by the Company
or any of its Subsidiaries from such Asset Sales upon the liquidation or
conversion of such consideration into cash.
"Notes" means the Initial Notes, the Exchange Notes and any
other notes issued after the Issue Date in accordance with clause (iii) of the
fourth paragraph of Section 2.02 treated as a single class of securities, as
amended or supplemented from time to time in accordance with the terms hereof,
that are issued pursuant to this Indenture.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the Chief Financial Officer, Chief
Accounting Officer, Treasurer, President, any Vice President, secretary,
assistant secretary, director or other authorized signatory of such Person.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, any Vice Chairman of the Board, the Chief Executive
Officer, the President or any Vice President and by the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Company in their
official (and not individual) capacities; provided, however, that every
Officers' Certificate with respect to the compliance with a condition precedent
to the taking of any action under this Indenture shall include (i) a statement
that the officers making or giving such Officers' Certificate have read such
condition and any definitions or other provisions contained in this Indenture
relating thereto and (ii) a statement as to whether, in the opinion of such
officers, such condition has been complied with.
"Opinion of Counsel" means a written opinion from legal
counsel (such counsel may be an employee of or counsel to the Company or the
Trustee) that complies with the requirements of this Indenture.
"Permitted Investments" means: (i) capital contributions,
advances or loans to the Company by any Subsidiary or by the Company or any of
its Subsidiaries to a Subsidiary of the Company; (ii) the acquisition and
holding by the Company and each of its Subsidiaries of receivables owing to the
Company and such Subsidiary, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade terms;
(iii) the acquisition and holding by the Company and its Subsidiaries of cash
and Eligible Investments; (iv) Investments in any Person as a result of which
such other Person becomes a Subsidiary of the Company or is merged into or
consolidated with or transfers all or substantially all of its assets to the
Company or any of its Subsidiaries; and (v) the making of an Investment by the
Company, directly or through a Wholly Owned Subsidiary, in a Wholly Owned
Subsidiary formed solely for the purpose of insuring the
10
healthcare business and facilities owned or operated by the Company or a
Subsidiary and any physician employed by or on the staff of any such business or
facility (the "Insurance Subsidiary"), provided that the amount invested in such
Insurance Subsidiary does not exceed $15,000,000.
"Permitted Liens" means: (i) Liens for taxes, assessments or
governmental charges or claims that either (a) are not yet delinquent or (b) are
being contested in good faith by appropriate proceedings; (ii) statutory Liens
of landlords and carriers', warehousemen's, mechanics', suppliers',
materialmen's, repairmen's or other like Liens arising in the ordinary course of
business and with respect to amounts that either (a) are not yet delinquent or
(b) are being contested in good faith by appropriate proceedings and as to which
appropriate reserves or other provisions have been made in accordance with GAAP;
(iii) Liens (other than any Lien imposed by the Employee Retirement Income
Security Act of 1974, as amended) incurred or deposits due in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security; (iv) Liens incurred or deposits
made to secure the performance of tenders, bids, leases, statutory obligations,
surety and appeal bonds, progress payments, government contracts and other
obligations of like nature (exclusive of obligations for the payment of borrowed
money), in each case, incurred in the ordinary course of business; (v)
attachment or judgment Liens not giving rise to a Default or an Event of
Default; (vi) easements, rights-of-way, restrictions and other similar charges
or encumbrances not interfering with the ordinary conduct of the business of the
Company or any of its Subsidiaries; (vii) leases or subleases granted to others
not interfering with the ordinary conduct of the business of the Company or any
of its Subsidiaries; (viii) Liens with respect to any Acquired Indebtedness,
provided that such Liens only extend to assets that were subject to such Liens
prior to the acquisition of such assets by the Company or its Subsidiaries and,
with respect to Indebtedness other than Indebtedness ranking pari passu with the
Notes, not incurred in anticipation or contemplation of such acquisition; (ix)
Liens securing Bank Debt or Refinancing Indebtedness, provided, in the case of
Refinancing Indebtedness, that such Liens only extend to the assets securing the
Indebtedness being refinanced and such refinanced Indebtedness was previously
secured by such assets; (x) purchase money mortgages (including Capitalized
Lease Obligations); (xi) Liens existing on the Issue Date; (xii) Liens on assets
of any Subsidiary of the Company securing Indebtedness of such Subsidiary,
provided that such Indebtedness is permitted to be incurred by the terms of this
Indenture; (xiii) bankers' liens with respect to the right of set-off arising in
the ordinary course of business against amounts maintained in bank accounts or
certificates of deposit in the name of the Company or any Subsidiary; (xiv) the
interest of any issuer of a letter of credit in any cash or Eligible Investment
deposited with or for the benefit of such issuer as collateral for such letter
of credit, provided that the Indebtedness so collateralized is permitted to be
incurred by the terms of this Indenture; (xv) any Lien consisting of a right of
first refusal or option to purchase the Company's ownership interest in any
Subsidiary or to purchase assets of the Company or any Subsidiary of the
Company, which right of first refusal or option is entered into in the ordinary
course of business; and (xvi) the Lien granted to the Trustee pursuant to the
trust created pursuant to Article 9 hereof and any substantially equivalent Lien
granted to the respective trustees under the indentures for other debt
securities of the Company.
"Person" means any individual, corporation, partnership, joint
venture, incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
"Preferred Stock" means with respect to any Person all Capital
Stock of such Person which has a preference in liquidation or a preference with
respect to the payment of dividends or distributions of operating profit or
cash.
11
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A.
"Record Date" for interest payable on any Interest Payment
Date (except a date for payment of default interest) means the January 15 or
July 15 (whether or not a Business Day), as the case may be, immediately
preceding such Interest Payment Date.
"Redemption Date" when used with respect to any Note to be
redeemed means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price" when used with respect to any Note to be
redeemed means the price fixed for such redemption pursuant to this Indenture.
"Refinancing Indebtedness" means Indebtedness that is applied
to refund, refinance or extend any Existing Indebtedness (other than
Indebtedness under the 2000 Credit Agreement), provided that: (i) the
Refinancing Indebtedness is the obligation of the same Person (or if the
Indebtedness being refinanced is an obligation of one or more Subsidiaries of
the Company, such Refinancing Indebtedness may be incurred by the Company or one
or more Subsidiaries of the Company) and is subordinated to the Notes, if at
all, to the same extent as the Indebtedness being refunded, refinanced or
extended; (ii) the Refinancing Indebtedness is scheduled to mature no earlier
than the Indebtedness being refunded, refinanced or extended; (iii) the
Refinancing Indebtedness has a Weighted Average Life to Maturity at the time
such Refinancing Indebtedness is incurred that is equal to or greater than the
Weighted Average Life to Maturity of the portion of the Indebtedness being
refunded, refinanced or extended; (iv) the Refinancing Indebtedness is secured
only to the extent, if at all, and by the assets that the Indebtedness being
refunded, refinanced or extended is secured; and (v) such Refinancing
Indebtedness is in an aggregate principal amount that is equal to or less than
the aggregate principal amount then outstanding under the Indebtedness being
refunded, refinanced or extended (except for issuance costs and increases in
Attributable Indebtedness due solely to increases in the present value
calculations resulting from renewals or extensions of the terms of the
underlying leases in effect on the Issue Date).
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of February 1, 2001 among the Company and the Initial
Purchasers.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Restricted Period" means, with respect to any
Note, the period of forty (40) consecutive days beginning on and including the
first day after the later of (i) the day on which such Note is first offered to
Persons other than distributors (as defined in Regulation S) in reliance on
Regulation S and (ii) the closing date of the offering of such Note.
"Restricted Payment" means with respect to any Person: (i) the
declaration of any dividend or the making of any other payment or distribution
of cash, securities or other property or assets in respect of such Person's
Capital Stock (except that a dividend payable solely in Capital Stock (other
than Disqualified Stock) of such Person shall not constitute a Restricted
Payment); (ii) any payment on account of the purchase, redemption, retirement or
other acquisition for value of such Person's or such Person's Subsidiaries'
Capital Stock or any other payment or distribution made in respect thereof,
either directly or indirectly; (iii) any payment on account of the purchase,
redemption,
12
retirement, defeasance or other acquisition for value, prior to any scheduled
principal payment, sinking fund payment or Stated Maturity, of Subordinated
Indebtedness of the Company or its Subsidiaries; (iv) the incurrence, creation
or assumption of any guarantee of Indebtedness of any Affiliate (other than a
Subsidiary of the Company); or (v) the making of any Investment in any Person
(other than Permitted Investments); provided, however, that with respect to the
Company and its Subsidiaries, Restricted Payments shall not include any payment
described in clause (i), (ii) or (iii) above made (1) to the Company or any of
its Wholly Owned Subsidiaries by any of the Company's Subsidiaries or (2) by the
Company to any of its Wholly Owned Subsidiaries or (3) by any Subsidiary
provided that the Company or another Subsidiary receives its proportionate share
thereof.
"Restricted Security" means any Note (or beneficial interest
therein) other than an Exchange Note (or beneficial interest therein), until
such time as: (i) such Note (or beneficial interest therein) has been
transferred pursuant to an effective registration statement under the Securities
Act; (ii) such Note is a 144A Global Note and two years have passed since the
Issue Date; (iii) such Note is a Regulation S Global Note and the Regulation S
Restricted Period has expired; or (iv) the Private Placement legend therefor has
otherwise been removed pursuant to Section 2.16(e) hereof or, in the case of a
beneficial interest in a Global Note, such beneficial interest has been
exchanged for an interest in a Global Note not bearing a Private Placement
Legend.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Sale and Leaseback Transaction" means, with respect to any
Person, an arrangement with any bank, insurance company or other lender or
investor or to which such lender or investor is a party, providing for the
leasing by such Person or any of its Subsidiaries of any property or asset of
such Person or any of its Subsidiaries which has been or is being sold or
transferred by such Person or such Subsidiary to such lender or investor or to
any Person to whom funds have been or are to be advanced by such lender or
investor on the security of such property or asset.
"Secretary's Certificate" means a certificate signed by the
Secretary or any Assistant Secretary of the Company in his or her official (and
not individual) capacity.
"Securities Act" means the Securities Act of 1933, as amended.
"Significant Subsidiary" means a Subsidiary of the Company
which at the time of determination either (i) had tangible assets which, as of
the Company's most recent quarterly consolidated balance sheet, constituted at
least 5% of Consolidated Tangible Assets as of such date, or (ii) had revenues
for the 12-month period ending on the date of the Company's most recent
quarterly consolidated statement of income which constituted at least 5% of the
Company's total consolidated revenues for such period.
"Stated Maturity" when used with respect to any security or
any installment of interest thereon, means that date specified in such security
as the fixed date on which the principal of such security or such installment of
interest is due and payable.
"Subordinated Indebtedness" of any Person means any
Indebtedness of such Person that is subordinated in right of payment to the
Notes.
13
"Subsidiary" of any Person means (i) any corporation of which
Common Equity having ordinary voting power to elect a majority of the directors
of such corporation is owned by such Person directly or through one or more
other Subsidiaries of such Person and (ii) any entity other than a corporation
in which such Person, directly or indirectly, owns at least 50% of the Common
Equity of such entity and has the authority to manage such entity on a
day-to-day basis.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this
Indenture (except as provided in Section 8.03 hereof).
"Trust Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such Person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.
"Trustee" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
the successor.
"U.S. Government Obligations" means (a) securities that are
direct obligations of the United States of America for the payment of which its
full faith and credit are pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or a specific payment of principal or
interest on any such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness or portion thereof at any date, the number of years obtained by
dividing (i) the then outstanding principal amount of such Indebtedness or
portion thereof (if applicable) into (ii) the sum of the products obtained by
multiplying (a) the amount of each then remaining installment, sinking fund,
serial maturity or other required payment of principal, including payment at
final maturity, in respect thereof, by (b) the number of years (calculated to
the nearest one-twelfth) that will elapse between such date and the making of
such payment.
"Wholly Owned Subsidiary" of any Person means (i) a Subsidiary
of which 100% of the Common Equity (except for director's qualifying shares or
certain minority interests owned by other Persons solely due to local law
requirements that there be more than one stockholder, but which interest is not
in excess of what is required for such purpose) is owned directly by such Person
or
14
through one or more other Wholly Owned Subsidiaries of such Person and (ii) any
entity other than a corporation in which such Person, directly or indirectly,
owns all of the Common Equity of such entity.
Section 1.02. Other Definitions.
The definitions of the following terms may be found in the
sections indicated as follows:
Term Defined in Section
"Accredited Investors".................................... 2.01
"Affiliate Transaction"................................... 4.13
"Agent Members"........................................... 2.15
"Applicable Procedures"................................... 2.16
"Asset Sale Offer"........................................ 4.12
"Asset Sale Payment Amount"............................... 4.12
"Asset Sale Purchase Price"............................... 4.12
"Bankruptcy Law".......................................... 6.01
"Business Day"............................................ 11.07
"Change of Control Offer"................................. 4.15
"Change of Control Payment Date".......................... 4.15
"Change of Control Purchase Price"........................ 4.15
"Clearstream"............................................. 2.01
"Covenant Defeasance"..................................... 9.03
"Custodian"....... ....................................... 6.01
"Depositary".............................................. 2.15
"Euroclear"............................................... 2.01
"Event of Default"........................................ 6.01
"Excess Proceeds"......................................... 4.12
"Excess Proceeds Payment Date"............................ 4.12
"Global Notes"............................................ 2.01
"Legal Defeasance"........................................ 9.02
"Legal Holiday"........................................... 11.07
"make whole amount"....................................... Exhibit A/Exhibit B
"Net Proceeds Deficiency"................................. 4.12
"Non-payment Default"..................................... 10.03
"Other Debt".............................................. 4.12
"Paying Agent"............................................ 2.03
"Payment Blockage Notice"................................. 10.03
"Payment Blockage Period"................................. 10.03
"Payment Default"......................................... 10.03
"Private Placement Legend"................................ 2.17
"Registrar"............................................... 2.03
"Regulation S Global Note"................................ 2.01
"Restricted Global Note".................................. 2.01
"Successor"............................................... 5.01
15
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
portion of such provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by reference in and made
a part of this Indenture. Unless otherwise specified, terms used in this
Indenture that are defined by the TIA, defined in the TIA by reference to
another statute or defined by Commission rule have the meanings therein assigned
to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether
defined expressly or by reference;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular; and
(5) words used herein implying any gender shall apply to every
gender.
ARTICLE 2
THE NOTES
Section 2.01. Dating; Incorporation of Form in Indenture; Form of Notes.
(a) Generally. The Initial Notes and the Trustee's certificate
of authentication shall be substantially in the form of Exhibit A, and the
Exchange Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit B, each of which is incorporated in and
made part of this Indenture with such appropriate insertions, substitutions and
other variations as are required or permitted by this Indenture. The Notes may
have notations, legends or endorsements required by law, stock exchange rule or
usage all in a form approved by the Company. Each Note shall be dated the date
of its authentication.
(b) Notes Sold Pursuant to Rule 144A. The Notes offered and
sold in their initial distribution in reliance on Rule 144A to Qualified
Institutional Buyers shall be issued in the form of a permanent global note (the
"Restricted Global Note") (which may be represented by more than one
certificate, if so required by the Depositary's rules regarding the maximum
principal amount to be represented by a single certificate), duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
Restricted Global Note shall be registered in the name of the Depositary or its
nominee and deposited with the Trustee, at its Corporate Trust Office, as
custodian for the Depositary on behalf of the purchasers of the Notes
represented thereby.
16
(c) Notes Sold Pursuant to Regulation S. The Notes offered and
sold in their initial distribution in reliance on Regulation S shall be issued
in the form of a permanent global note (the "Regulation S Global Note" and,
together with the Restricted Global Note, the "Global Notes") (which may be
represented by more than one certificate, if so required by the Depositary's
rules regarding the maximum principal amount to be represented by a single
certificate), duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The Regulation S Global Note shall be registered in the
name of the Depositary or its nominee and deposited with the Trustee, at its
Corporate Trust Office, as custodian for the Depositary for credit to the
respective accounts of The Euroclear System ("Euroclear") and Clearsteam
Banking, societe anonyme ("Clearstream"). Prior to the termination of the
Regulation S Restricted Period, beneficial interests in the Regulation S Global
Note may be held only through Euroclear and Clearstream.
(d) Notes Sold to Institutional Accredited Investors. The
Notes offered and sold in their initial distribution in reliance on an exemption
from registration under the Securities Act (other than Rule 144A or Regulation
S) to institutional "accredited investors" (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act ("Accredited Investors")) shall be issued in
certificated, fully registered form without coupons and only in denominations of
$250,000 and integral multiples of $1,000 in excess thereof, duly executed by
the Company and authenticated by the Trustee as hereinafter provided.
Section 2.02. Execution and Authentication; Appointment of Authenticating Agent.
The Notes shall be executed on behalf of the Company by one or
more Officers of the Company. Such signature may be either manual or facsimile.
If an Officer whose signature is on a Note no longer holds
that office at the time the Trustee authenticates the Note, the Note shall be
valid nevertheless.
A Note shall not be valid until the Trustee manually signs the
certificate of authentication on the Note. Such signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
The Trustee shall authenticate (i) Initial Notes for original
issue on the Issue Date in the aggregate principal amount not to exceed
$375,000,000, (ii) pursuant to the Exchange Offer, Exchange Notes from time to
time for issue only in exchange for a like principal amount of Initial Notes and
(iii) subject to compliance with Section 4.11 hereof, one or more series of
Notes for original issue after the Issue Date (such Notes to be substantially in
the form of Exhibit A or B hereto, as the case may be) in an unlimited amount
(and if in the form of Exhibit A hereto the same principal amount of Exchange
Notes in exchange therefor upon consummation of a registered exchange offer), in
each case upon written orders of the Company in the form of an Officers'
Certificate, which Officers' Certificate shall, in the case of any issuance
pursuant to clause (iii) above, certify that such issuance is in compliance with
Section 4.11 hereof. In addition, each such Officers' Certificate shall specify
the amount of Notes to be authenticated, the date on which the Notes are to be
authenticated, whether the Notes are to be Initial Notes, Exchange Notes or
Notes issued under clause (iii) of the preceding sentence and the aggregate
principal amount of Notes outstanding on the date of authentication.
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Except as provided in section 2.01(d), the Notes shall be
issuable only in definitive, fully registered form without coupons and only in
minimum denominations of $1,000 and integral multiples thereof.
The Trustee, with the approval of the Company, may appoint an
authenticating agent to authenticate Notes. Any such appointment shall be
evidenced by an instrument signed by an authorized officer of the Trustee, a
copy of which shall be furnished to the Company. An authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent, and shall comply with this Indenture. An authenticating agent has the
same right as an Agent to deal with the Company or an Affiliate.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough
of Manhattan, The City of New York where (a) Notes may be presented or
surrendered for registration of transfer or for exchange ("Registrar"), (b)
Notes may be presented or surrendered for payment ("Paying Agent") and (c)
notices and demands in respect of Notes and this Indenture may be served. The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Registrar shall provide the Company a current copy of such register from
time to time upon request of the Company. The Company may have one or more
co-Registrars and one or more additional Paying Agents. The Company may change
any Paying Agent, Registrar or co-Registrar without notice to any Holder. The
Company may not act as Paying Agent, but may act as Registrar or co-Registrar.
The Company shall enter into an appropriate agency agreement
with any Registrar or Paying Agent not a party to this Indenture, which shall
incorporate the provisions of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall notify
the Trustee in writing of the name and address of any such Agent. If the Company
fails to maintain a Registrar or Paying Agent, or agent for service of notices
and demands, or fails to give the foregoing notice, the Company shall notify the
Trustee and the Trustee shall to the extent that it is capable act as such for
so long as such failure continues.
The Company initially appoints the Trustee as Registrar and
Paying Agent in the Borough of Manhattan, The City of New York.
Section 2.04. Paying Agent To Hold Money in Trust.
Before 10:00 A.M. New York City time on each payment date of
the principal of and/or interest on any Notes, the Company shall deposit with
the Paying Agent a sum sufficient to pay such principal and interest so becoming
due. The Company at any time may require a Paying Agent to pay all money held by
it to the Trustee together with a complete accounting of such sums, and the
Trustee may at any time during the continuance of any Event of Default under
Section 6.01(a) or (b) hereof, upon written request to a Paying Agent, require
such Paying Agent to forthwith pay to the Trustee all sums so held in trust by
such Paying Agent together with a complete accounting of such sums. Upon doing
so, the Paying Agent shall have no further liability for the money. Funds
deposited with the Paying Agent may be invested as agreed from time to time by
the Company and the Paying Agent. All payments made hereunder shall be in U.S.
legal tender.
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Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least five Business Days before each Interest Payment
Date and the Stated Maturity Date and at such other times as the Trustee may
reasonably request in writing, a list in such form and as of such date as the
Trustee may require of the names and addresses of Holders.
Section 2.06. [Intentionally Omitted].
Section 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the
Holder of a Note claims that a Note has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Note if the Trustee's requirements for replacement are met. An indemnity bond
may be required by the Company or the Trustee that is sufficient in the judgment
of the Company and the Trustee to protect the Company, the Trustee or any Agent
from any loss which any of them may suffer if a Note is replaced and evidence to
their satisfaction of apparent loss, destruction or theft of such Note may be
required by the Company, the Trustee or any Agent. The Company and the Trustee
may charge for their reasonable out-of-pocket expenses (including reasonable
attorneys' fees and expenses and any applicable taxes) in replacing a Note
pursuant to this Section 2.07. In the event any such mutilated, lost, destroyed
or wrongfully taken Note has become due and payable, the Company in its
discretion may pay such Note instead of issuing a new Note in replacement
thereof. If after the delivery of such new Note, a bona fide purchaser of the
original Note in lieu of which such new Note was issued presents for payment
such original Note, the Company and the Trustee shall be entitled to recover
such new Note from the person to whom it was delivered or any transferee
thereof, except a bona fide purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by the Company or the Trustee in connection therewith.
Every replacement Note is an additional obligation of the
Company.
Section 2.08. Outstanding Notes.
Notes outstanding at any time are all Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation and those described in this Section 2.08 as not outstanding.
A Note replaced pursuant to Section 2.07 hereof (other than a
mutilated Note surrendered for replacement) ceases to be outstanding unless and
until the Trustee receives proof satisfactory to it that such replaced Note is
held by a protected purchaser.
If a Paying Agent holds on a Redemption Date or at Stated
Maturity U.S. legal tender sufficient to pay the principal of, make-whole
amount, if any, and accrued interest on Notes (or portions thereof) payable on
that date, then on and after that date, such Notes (or portions thereof) cease
to be outstanding and interest on them ceases to accrue.
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Section 2.09. Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver, consent or notice,
Notes owned by the Company or any of its Affiliates shall be considered as
though they are not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Notes which a Trust Officer of the Trustee actually knows are
so owned shall be so considered. The Company shall notify the Trustee, in
writing, when it or any of its Affiliates repurchases or otherwise acquires
Notes and of the aggregate principal amount of such Notes so repurchased or
otherwise acquired.
Section 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form, and shall carry all rights and restrictions,
of definitive Notes but may have variations that the Company considers
appropriate for temporary Notes. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate definitive Notes in exchange for
temporary Notes upon surrender of such temporary Notes at the office or agency
maintained pursuant to Section 2.03 hereof.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee
shall cancel all Notes surrendered for transfer, exchange, payment or
cancellation and, unless the Company instructs the Trustee in writing to deliver
the Notes to the Company, shall dispose of such Notes in accordance with its
normal practice. Subject to Section 2.07 hereof, the Company may not issue new
Notes to replace Notes in respect of which it has previously paid all principal,
make-whole amount, if any, and interest accrued thereon, or delivered to the
Trustee for cancellation. The Trustee shall provide the Company with a list of
all Notes that have been canceled from time to time as requested in writing by
the Company. If the Company shall acquire any of the Notes, such acquisition
shall not operate as a redemption or satisfaction of the Indebtedness
represented by such Notes unless and until the same are surrendered to the
Trustee for cancellation pursuant to this Section 2.07.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of principal or interest
on the Notes, it shall pay interest on overdue principal and on overdue
installments of interest (without regard to any applicable grace periods) from
time to time on demand at the rate per annum borne by the Notes, to the extent
lawful.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest, plus (to the extent lawful) any interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special Record Date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest or
the next succeeding Business Day if such date is not a Business Day. At least 15
days before the subsequent special Record Date, the Company shall mail to each
Holder, as of a recent date selected by the
20
Company, with a copy to the Trustee, a notice that states the subsequent special
Record Date, the payment date and the amount of defaulted interest, and interest
payable on such defaulted interest, if any, to be paid.
Notwithstanding the foregoing, any interest which is paid
prior to the expiration of the 30-day period set forth in Section 6.01(a) hereof
shall be paid to Holders as of the Record Date for the Interest Payment Date for
which interest has not been paid.
Section 2.13. Deposit of Moneys; Payments.
Prior to 10:00 A.M., New York City time, on the relevant
Interest Payment Date, Stated Maturity date, Redemption Date, Change of Control
Purchase Date and Excess Proceeds Payment Date, the Company shall have deposited
with the Paying Agent in immediately available funds money sufficient to make
all cash payments due on such Interest Payment Date, Stated Maturity date,
Redemption Date, Change of Control Purchase Date and Excess Proceeds Payment
Date, as the case may be (or if any such date is not a Business Day, the first
preceding Business Day). The principal and interest on Global Notes shall be
payable to the Depositary or its nominee, as the case may be, as the sole
registered owner and the sole holder of the Global Notes represented thereby.
The principal and interest on Certificated Notes, if any, shall be payable at
the office of the Paying Agents. The Paying Agents shall pay the Company any
excess cash remaining on deposit after all payments have been made with respect
to a given Interest Payment Date, Stated Maturity date, Redemption Date, Change
of Control Purchase Date or Excess Proceeds Payment Date, as the case may be.
All payments made hereunder shall be in U.S. legal tender.
Section 2.14. "CUSIP" Number.
The Company in issuing the Notes may use "CUSIP" number(s) and
the Trustee shall use the "CUSIP" numbers(s) in notices of redemption or
exchange as a convenience to Holders; provided that neither the Company nor the
Trustee shall have any responsibility for any defect in the "CUSIP" number that
appears on any Note, check, advice or payment or redemption notice, and any such
notice may state that no representation is made as to the correctness or
accuracy of the "CUSIP" number(s) printed in the notice or on the Notes, and
that reliance may be placed only on the other identification numbers printed on
the Notes and any such redemption or exchange shall not be affected by any
defect in or omission of such number(s). The Company shall promptly notify the
Trustee of any changes in "CUSIP" numbers.
Section 2.15. Depositary.
(a) The Company hereby appoints DTC to act as depositary (in
such capacity, together with its successors in such capacity, the "Depositary")
with respect to the Global Notes. The Trustee shall act as custodian of the
Global Notes for the Depositary. So long as the Depositary or its nominee, Cede
& Co., is the registered owner of the Global Notes, it shall be considered the
Holder of the Notes represented thereby for all purposes hereunder and under the
Global Notes, and neither any members of, or participants in, the Depositary
("Agent Members") nor any other Persons on whose behalf Agent Members may act
shall have any rights hereunder with respect to the Global Notes or under the
Global Notes. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or its nominee, as the case may be, or impair, as between the
21
Depositary, its Agent Members and any other Person on whose behalf an Agent
Member may act, the operation of customary practices of such Persons governing
the exercise of the rights of a Holder of any Note.
(b) The Company may remove or replace DTC or any successor as
Depositary for any reason upon thirty (30) days' notice to DTC or such
successor. The Holders shall have no right to a depositary for the Notes.
(c) Notwithstanding any other provision of this Indenture or
the Notes, so long as DTC or its nominee is the registered owner of the Notes:
(i) the provisions of the DTC Letter of Representations
shall control over the provisions of this Indenture with
respect to the matters covered thereby;
(ii) presentation of Notes to the Trustee at redemption
or at maturity shall be deemed made to the Trustee when the
right to exercise ownership rights in the Notes through DTC
or Agent Members is transferred by DTC on its books; and
(iii) DTC may present notices, approvals, waivers or
other communications required or permitted to be made by
Holders under this Indenture on a fractionalized basis on
behalf of some or all of those Persons entitled to exercise
ownership rights in the Notes through DTC or Agent Members.
Section 2.16. Registration of Transfers and Exchanges.
(a) Transfer and Exchange Generally. (i) The Notes are
transferable only upon the surrender thereof for registration of
transfer. When a Note is presented to the Registrar with a duly
executed instrument of assignment and transfer substantially in the
form of assignment attached to Exhibit A or B, as applicable, the
Registrar shall register the transfer as requested if such transfer
complies with the provisions hereof. Prior to the due presentation for
registration of transfer of any Note, the Person in whose name such
Note is registered shall be treated as the absolute owner of such Note
for the purpose of receiving payment of principal of, make-whole amount
(if any) and interest on such Note (whether or not such payment is
overdue) and for all other purposes whatsoever, notwithstanding any
notice to the contrary. Registration of transfer of any Note by the
Registrar shall be deemed to be an acknowledgment of such transfer by
the Company.
(ii) When Notes are presented to the Registrar with a
written request to exchange such Notes for Notes of any authorized
denominations and of a like aggregate principal amount, the Registrar
shall make the exchange as requested if such exchange complies with the
provisions of this Section 2.16(a).
(iii) Following any request for transfer or exchange
of one or more Notes made in compliance with clauses (i) or (ii), as
the case may be, of this Section 2.16(a), the Company shall execute,
and the Trustee shall authenticate and deliver, one or more new Notes
of a like principal amount and in such authorized denominations as may
be requested. Any exchange or transfer shall be without charge, except
that the Company may require payment by the Holder of a sum sufficient
to cover any tax or other governmental charge that may be
22
imposed in relation to a transfer or exchange other than any exchange
pursuant to Sections 2.10, 3.06, 4.12, 4.15 or 8.05 hereof.
(iv) Transfers or exchanges of the Global Notes and beneficial
interests therein shall be subject to the provisions of Section
2.16(b) and the rules of the Depositary. Transfers or exchanges of
Certificated Notes shall be subject to the provisions of Section
2.16(c).
(v) Except as otherwise provided herein, the Global Notes and
each Certificated Note shall bear the Private Placement Legend as set
forth in Section 2.17. By its acceptance of any Note bearing the
Private Placement Legend, whether upon original issuance or subsequent
transfer, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Note only as
provided in this Indenture. Upon the specific written request of a
Holder to remove the Private Placement Legend, the Registrar shall
authenticate and deliver a Note with an equivalent principal amount
not bearing the Private Placement Legend if there is provided to the
Company evidence reasonably satisfactory to the Company (which may, at
the Company's request, include an Opinion of Counsel) that neither the
Private Placement Legend nor the restrictions on transfer set forth
therein are required to ensure compliance with the Securities Act.
Upon a written request for the registration of transfer or exchange of
a Note bearing the Private Placement Legend pursuant to an effective
registration statement under the Securities Act and in accordance with
any applicable securities laws of any state of the United States, the
Registrar shall authenticate and deliver a Note with an equivalent
principal amount not bearing the Private Placement Legend. If the
Private Placement Legend has been removed from a Note as provided in
this clause (v), the transfer of such Note shall not be subject to the
restrictions on transfer set forth in the Private Placement Legend,
and no other Note issued in exchange for all or any part of such Note
shall bear the Private Placement Legend unless the Company has
reasonable cause to believe that such other Note is a Restricted
Security and instructs the Registrar in writing to cause the Private
Placement Legend to appear thereon.
(vi) None of the Company or the Trustee or the Registrar shall be
liable for any delay by the Depositary in identifying the beneficial
owners of the Notes, and each such Person may conclusively rely on,
and shall be protected in relying on, instructions from the Depositary
for all purposes (including with respect to the registration and
delivery, and the respective principal amounts, of any Notes to be
issued).
(vii) Prior to the due presentation for registration of transfer
of any Note, the Company, the Trustee, the Paying Agent, the Registrar
or any co-Registrar may deem and treat the Person in whose name a Note
is registered as the absolute owner of such Note for the purpose of
receiving payment of principal of, make-whole amount, if any, and
interest, if any, on such Note and for all other purposes whatsoever,
whether or not such Note is overdue, and none of the Company, the
Trustee, the Paying Agent, the Registrar or any co-Registrar shall be
affected by notice to the contrary. So long as the Depositary or its
nominee is the Holder of a Global Note, the Depositary or such
nominee, as the case may be, will be considered the sole owner or
Holder of the Notes represented by such Global Note for all purposes
hereunder and under the Notes. Any Holder of a Global Note, and each
Person with an interest in such Global Note, shall, by acceptance of
such Global Note or such interest, agree that transfers of the
beneficial interests in such Global Note may be effected only through
a book-entry system
23
maintained by the Holder of such Global Note (or its agent) and that
ownership of a beneficial interest in such Global Note shall be
required to be reflected in a book entry.
(viii) Any Note issued upon any transfer or exchange pursuant to
this Section 2.16 will evidence the same debt and will be entitled to
the same benefits and, unless otherwise provided for in this
Indenture, subject to the same restrictions under this Indenture as
the Note or Notes surrendered upon such transfer or exchange.
(ix) The Registrar shall not be required to register the transfer
of or exchange any Note (A) selected for redemption in whole or in
part pursuant to Article 3, except the unredeemed portion of any Note
being redeemed in part, (B) for a period beginning fifteen (15) days
before the mailing of a notice of redemption of Notes and ending on
the date of such mailing or (C) between a Record Date and the next
succeeding Interest Payment Date.
(b) Transfers and Exchanges of the Global Notes and Beneficial
Interests Therein.
(i) Subject to clauses (ii) through (viii) of this Section
2.16(b), transfers of the Global Notes shall be limited to transfers
in whole, but not in part, to the Depositary, its successors or their
respective nominees. So long as the Global Notes remain outstanding
and are held by or on behalf of the Depositary, transfers and
exchanges of beneficial interests in the Global Notes shall be made in
accordance with the provisions of this Section 2.16(b) and in
accordance with the rules and procedures of the Depositary to the
extent applicable (the "Applicable Procedures").
(ii) No restrictions shall apply with respect to the transfer or
registration of transfer of (x) a beneficial interest in the
Restricted Global Note to a transferee that takes delivery in the form
of a beneficial interest in the Restricted Global Note or (y) a
beneficial interest in the Regulation S Global Note to a transferee
that takes delivery in the form of a beneficial interest in the
Regulation S Global Note; provided that any transfer described in this
clause (ii) shall be made in accordance with the Applicable
Procedures.
(iii) Any transfer of a beneficial interest in the Restricted
Global Note to a transferee that will take delivery in the form of a
beneficial interest in the Regulation S Global Note prior to the
termination of the Regulation S Restricted Period shall be registered,
subject to the Applicable Procedures, only in accordance with this
clause (iii). At any time prior to the termination of the Regulation S
Restricted Period, upon (x) receipt by the Registrar of (A)
instructions given in accordance with the Applicable Procedures from
the Depositary or its nominee on behalf of an owner of a beneficial
interest in the Restricted Global Note to transfer such beneficial
interest to a Person that will take delivery in the form of a
beneficial interest in the Regulation S Global Note, (B) a written
order of the Depositary or its nominee given in accordance with the
Applicable Procedures containing account and other information with
respect to such transfer and (C) a certificate of the transferor of
the beneficial interest in the Restricted Global Note substantially in
the form of Exhibit D and (y) satisfaction of all other applicable
conditions imposed by this Indenture and the Applicable Procedures,
the Registrar shall (1) reflect in the register for the Notes a
decrease in the principal amount of the Restricted Global Note and an
increase in the principal amount of the Regulation S Global Note, each
such adjustment to be equal to the beneficial interest transferred
pursuant to this clause (iii) and (2) instruct the Depositary to make
the corresponding adjustment to its records
24
and debit the account of the appropriate Agent Members in accordance
with the Applicable Procedures.
(iv) Any transfer of a beneficial interest in the Restricted
Global Note to a transferee that will take delivery in the form of a
beneficial interest in the Regulation S Global Note subsequent to the
termination of the Regulation S Restricted Period shall be registered,
subject to the Applicable Procedures, only in accordance with this
clause (iv). At any time subsequent to the termination of the
Regulation S Restricted Period, upon (x) receipt by the Registrar of
(A) instructions given in accordance with the Applicable Procedures
from the Depositary or its nominee on behalf of an owner of a
beneficial interest in the Restricted Global Note to transfer such
beneficial interest to a Person that will take delivery in the form of
a beneficial interest in the Regulation S Global Note, (B) a written
order of the Depositary or its nominee given in accordance with the
Applicable Procedures containing account and other information with
respect to such transfer and (C) a certificate of the transferor of
the beneficial interest in the Restricted Global Note substantially in
the form of Exhibit D (if transfer is made in reliance on Regulation
S) or Exhibit E (if transfer is made in reliance on Rule 144) and (y)
satisfaction of all other conditions imposed by the Applicable
Procedures, the Registrar shall (1) reflect in the register for the
Notes a decrease in the principal amount of the Restricted Global Note
and an increase in the principal amount of the Regulation S Global
Note, each such adjustment to equal the principal amount of the
beneficial interest transferred pursuant to this clause (iv), and (2)
instruct the Depositary to make the corresponding adjustment to its
records and debit and credit the accounts of the appropriate Agent
Members in accordance with the Applicable Procedures.
(v) Any transfer of a beneficial interest in the Regulation S
Global Note to a transferee that will take delivery in the form of a
beneficial interest in the Restricted Global Note, either prior or
subsequent to the termination of the Regulation S Restricted Period,
shall be registered, subject to the Applicable Procedures, only in
accordance with this clause (v). At any time upon (x) receipt by the
Registrar of (A) instructions given in accordance with the Applicable
Procedures from the Depositary or its nominee on behalf of an owner of
a beneficial interest in the Regulation S Global Note to transfer such
beneficial interest to a Person that will take delivery in the form of
a beneficial interest in the Restricted Global Note, (B) a written
order of the Depositary or its nominee given in accordance with the
Applicable Procedures containing account and other information with
respect to such transfer and (C) a certificate of the transferor of
the beneficial interest in the Regulation S Global Note substantially
in the form of Exhibit C and (y) satisfaction of all other conditions
imposed by and the Applicable Procedures, the Registrar shall (1)
reflect in the register for the Notes a decrease in the principal
amount of the Regulation S Global Note and an increase in the
principal amount of the Restricted Global Note, each such adjustment
to equal the principal amount of the beneficial interest transferred
pursuant to this clause (v), and (2) instruct the Depositary to make
the corresponding adjustment to its records and debit and credit the
accounts of the appropriate Agent Members in accordance with the
Applicable Procedures.
(vi) Any transfer of a beneficial interest in the Restricted
Global Note to a transferee that will take delivery in the form of one
or more Certificated Notes shall be registered, subject to the
Applicable Procedures, only in accordance with this clause (vi). At
any time upon (x) receipt by the Registrar of (A) instructions given
in accordance with the Applicable Procedures from the Depositary or
its nominee on behalf of an owner of a
25
beneficial interest in the Restricted Global Note to transfer such
beneficial interest to a Person that will take delivery in the form of
one or more Certificated Notes, (B) a written order of the Depositary
or its nominee given in accordance with the Applicable Procedures
containing account and other information with respect to such
transfer, (C) a certificate of such Person substantially in the form
of Exhibit F and (D) unless the Restricted Global Note does not bear a
Private Placement Legend, an Opinion of Counsel to the effect that
such transfer is in compliance with the Securities Act, and (y)
satisfaction of all other applicable conditions imposed by this
Indenture and the Applicable Procedures, (1) the Registrar shall (A)
reflect in the register for the Notes a decrease in the principal
amount of the Restricted Global Note in an amount equal to the
beneficial interest transferred pursuant to this clause (vi) and (B)
instruct the Depositary to make the corresponding adjustment to its
records and debit the account of the appropriate Agent Member in
accordance with the Applicable Procedures, and (2) the Company shall
execute and the Trustee shall authenticate and deliver to or on behalf
of such Person one or more Certificated Notes of like tenor and amount
and, unless the Restricted Global Note does not bear a Private
Placement Legend, bearing the Private Placement Legend.
(vii) Any transfer of a beneficial interest in the Regulation S
Global Note to a transferee that will take delivery in the form of one
or more Certificated Notes prior to the termination of the Regulation
S Restricted Period shall be registered, subject to the Applicable
Procedures, only in accordance with this clause (vii). At any time
prior to the termination of the Regulation S Restricted Period, upon
(x) receipt by the Registrar of (A) instructions given in accordance
with the Applicable Procedures from the Depositary or its nominee on
behalf of an owner of a beneficial interest in the Regulation S Global
Note to transfer such beneficial interest to a Person that will take
delivery in the form of one or more Certificated Notes, (B) a written
order of the Depositary or its nominee given in accordance with the
Applicable Procedures containing account and other information with
respect to such transfer, (C) a certificate of such Person
substantially in the form of Exhibit F and (D) an Opinion of Counsel
to the effect that such transfer is in compliance with the Securities
Act and (y) satisfaction of all other conditions imposed by the
Applicable Procedures, (1) the Registrar shall (A) reflect in the
register for the Notes a decrease in the principal amount of the
Regulation S Global Note in an amount equal to the beneficial interest
transferred pursuant to this clause (vii) and (B) instruct the
Depositary to make the corresponding adjustment to its records and
debit the account of the appropriate Agent Member in accordance with
the Applicable Procedures, and (2) the Company shall execute and the
Trustee shall authenticate and deliver to or on behalf of such Person
one or more Certificated Notes of like tenor and amount bearing the
Private Placement Legend.
(viii) Notwithstanding any contrary provision contained herein,
Certificated Notes shall be issued in exchange for the beneficial
interests in a Global Note if at any time: (x) the Company advises the
Trustee in writing that the Depositary is unwilling or unable to
continue as depositary for such Global Note or is no longer eligible
to act as such and in each case a successor depositary is not
appointed by the Company within ninety (90) days of receipt by the
Company of notice of such inability; (y) the Company, at its option,
elects to terminate the book-entry system through the Depositary with
respect to such Global Note; or (z) after the occurrence of an Event
of Default, beneficial owners holding interests representing a
majority of the aggregate principal amount of Notes represented by
such Global Note advise the Trustee in writing through the Depositary
that the continuation of a book-entry system through the Depositary is
no longer in such beneficial owners' best interests. Upon the
occurrence of any
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of the events set forth in clauses (x), (y) and (z) immediately above,
the Trustee, upon receipt of written notice thereof and a list of all
Persons that hold a beneficial interest in such Global Note, shall
notify, through the appropriate Agent Members at the expense of the
Company, all Persons that hold a beneficial interest in such Global
Note of the issuance of Certificated Notes. Upon surrender by the
Trustee, as custodian for the Depositary, of such Global Note and
receipt from the Depositary of instructions for re-registration, the
Company shall execute and the Trustee, upon the written instructions
of the Company, shall authenticate and deliver Certificated Notes of
like tenor and amount and, unless such Global Note does not bear a
Private Placement Legend, bearing the Private Placement Legend.
Certificated Notes issued in exchange for beneficial interests in such
Global Note pursuant to this clause (viii) shall be registered in such
names and in such authorized denominations as the Depositary, pursuant
to instructions from Agent Members or otherwise, shall instruct the
Trustee.
(c) Transfers and Exchanges of Certificated Notes. (i) Any
transfer of a Certificated Note bearing the Private Placement Legend to
a transferee that takes delivery in the form of one or more
Certificated Notes shall be registered only in accordance with this
clause (i). Upon (x) surrender of any Certificated Note bearing the
Private Placement Legend at the office of the Registrar, together with
(A) an executed instrument of assignment of such Certificated Note
substantially in the form of assignment attached to such Certificated
Note, (B) a certificate of the transferee of such Certificated Note
substantially in the form of Exhibit F and (C) an Opinion of Counsel to
the effect that such transfer is in compliance with the Securities Act
and (y) satisfaction of all other applicable conditions imposed by this
Indenture, (1) the Trustee shall register such transfer and (2) the
Company shall execute and the Trustee shall authenticate and deliver in
the name of the transferee one or more Certificated Notes of any
authorized denomination in the same aggregate principal amount and of
the same maturity as the transferred Certificated Note, each such new
Certificated Note bearing the Private Placement Legend; provided,
however, that Certificated Notes so delivered shall not be required to
bear the Private Placement Legend if there is provided to the Company
evidence reasonably satisfactory to the Company (which may, at the
Company's request, include an Opinion of Counsel) that neither the
Private Placement Legend nor the restrictions on transfer set forth
therein are required to ensure compliance with the Securities Act.
(ii) Any transfer of a Certificated Note not bearing
the Private Placement Legend to a transferee that takes delivery in the
form of one or more Certificated Notes shall be registered only in
accordance with this clause (ii). Upon (x) surrender of any
Certificated Note not bearing the Private Placement Legend at the
office of the Registrar, together with an executed instrument of
assignment of such Certificated Note substantially in the form of
assignment attached to such Certificated Note, and (y) satisfaction of
all other applicable conditions imposed by this Indenture, (A) the
Trustee shall register such transfer and (B) the Company shall execute
and the Trustee shall authenticate and deliver in the name of the
transferee one or more Certificated Notes of any authorized
denomination in the same aggregate principal amount and of the same
maturity as the transferred Certificated Note. Each such new
Certificated Note may at the request of the transferee, but shall not
be required to, bear the Private Placement Legend.
(iii) Any transfer of a Certificated Note bearing the
Private Placement Legend to a transferee that takes delivery in the
form of a beneficial interest in a Global Note shall be registered only
in accordance with this clause (iii). Upon (x) surrender of any
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Certificated Note bearing the Private Placement Legend at the office of
the Registrar, together with (A) an executed instrument of assignment
of such Certificated Note substantially in the form of assignment
attached to such Certificated Note, (B) written instructions from the
transferor that such Certificated Note shall be registered in the name
of the Depositary or its nominee and (C) a certificate of the
transferor of such Certificated Note substantially in the form of
Exhibit D (if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Global Note) or Exhibit C (if
the transferee will take delivery in the form of a beneficial interest
in the Restricted Global Note), and (y) satisfaction of all other
applicable conditions imposed by this Indenture and the Applicable
Procedures, the Registrar shall (1) register such transfer and cancel
such Certificated Note, (2) reflect in the register for the Notes an
increase in the appropriate Global Note in an amount equal to the
Certificated Note transferred pursuant to this clause (iii) and (3)
instruct the Depositary to make the corresponding adjustment to its
records and credit the account of the appropriate Agent Member in
accordance with the Applicable Procedures.
(iv) Any transfer of a Certificated Note not bearing
the Private Placement Legend to a transferee that takes delivery in the
form of a beneficial interest in a Global Note shall be registered only
in accordance with this clause (iv). Upon (x) surrender of a
Certificated Note not bearing the Private Placement Legend at the
office of the Registrar, together with (A) an executed instrument of
assignment of such Certificated Note substantially in the form of
assignment attached to such Certificated Note and (B) written
instructions from the transferor that such Certificated Note shall be
registered in the name of the Depositary or its nominee, and (y)
satisfaction of all other applicable conditions imposed by this
Indenture and the Applicable Procedures, the Registrar shall (1)
register such transfer and cancel such Certificated Note, (2) reflect
in the register for the Notes an increase in the Global Note in an
amount equal to the Certificated Note transferred pursuant to this
clause (iv) and (3) instruct the Depositary to make the corresponding
adjustment to it's records and credit the account of the appropriate
Agent Member in accordance with the Applicable Procedures.
(v) Any exchange of a Certificated Note for one or
more Certificated Notes in different authorized denominations shall be
registered only in accordance with this clause (v). Upon (x) surrender
of a Certificated Note at the office of the Registrar, together with a
written request to exchange such Certificated Note for one or more
Certificated Notes in different authorized denominations, and (y)
satisfaction of all other applicable conditions imposed by this
Indenture, (A) the Registrar shall register such exchange and (B) the
Company shall execute and the Trustee shall authenticate and deliver in
the name of the registered owner one or more Certificated Notes in any
authorized denomination with the same aggregate principal amount and
maturity date.
(vi) Any exchange of a Certificated Note for a
beneficial interest in a Global Note shall be registered only in
accordance with this clause (vi). Upon (x) surrender of a Certificated
Note at the office of the Registrar, together with (A) a written
request to exchange such Certificated Note for a beneficial interest in
a Global Note, (B) written instructions from the registered owner that
such Certificated Note shall be registered in the name of the
Depositary or its nominee and (C) a certificate of the registered owner
of such Certificated Note substantially in the form of Exhibit D (if
the Certificated Note is being exchanged for a beneficial interest in
the Regulation S Global Note) or Exhibit C (if the Certificated Note is
being exchanged for a beneficial interest in the Restricted Global
Note)
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and (y) satisfaction of all other applicable conditions imposed by
this Indenture and the Applicable Procedures, the Registrar shall (1)
register such exchange and cancel such Certificated Note, (2) reflect
in the register for the Notes an increase in the Restricted Global
Note in an amount equal to the Certificated Note exchanged pursuant to
this clause (vi) and (3) instruct the Depositary to make the
corresponding adjustment to its records and credit the account of the
appropriate Agent Member in accordance with the Applicable Procedures.
Section 2.17. Restrictive Legends.
Each Note that constitutes a Restricted Security shall bear
the following legend (the "Private Placement Legend") on the face thereof until
February 1, 2003, unless otherwise agreed to by the Company and the Holder
thereof:
THE NOTE (OR ITS PREDECESSORS) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THE NOTE EVIDENCED HEREBY
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM OR IN A
TRANSACTION NOT SUBJECT THERETO. EACH PURCHASER OF THE NOTE EVIDENCED
HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER OR ANOTHER EXEMPTION UNDER THE
SECURITIES ACT. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE COMPANY THAT (A) SUCH NOTE MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (i)(a) TO A PERSON THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE RESALE, PLEDGE OR TRANSFER IS BEING MADE IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES
ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, PROVIDED THAT IN THE
CASE OF A TRANSFER, PLEDGE OR SALE PURSUANT TO THIS CLAUSE (d) SUCH
TRANSFER IS SUBJECT TO THE RECEIPT BY THE REGISTRAR (AND THE COMPANY,
IF IT SO REQUESTS) OF A CERTIFICATION OF THE TRANSFEROR AND AN OPINION
OF COUNSEL TO THE EFFECT THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (ii) TO THE COMPANY OR ITS AFFILIATES OR (iii) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
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AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
AND THE INDENTURE GOVERNING THE NOTES AND (B) THE HOLDER WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF
THE NOTE EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE.
Each Global Note shall also bear the following legend:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS NOTE IS
NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A
TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, AND TRANSFERS OF INTERESTS IN THIS GLOBAL NOTE
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTION 2.16 OF THE INDENTURE.
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to paragraph 6
of the Notes, at least 60 days prior to the Redemption Date or during such other
period as the Trustee may agree to, the Company shall notify the Trustee in
writing of the Redemption Date, the principal amount of Notes to be redeemed and
the Redemption Price, and deliver to the Trustee an Officers' Certificate
stating that such redemption will comply with the conditions contained herein
and in the Notes, as appropriate.
Section 3.02. Selection of Notes To Be Redeemed.
(a) In the event that less than all of the Notes are to
be redeemed at any time, selection of the Notes to be redeemed shall be made by
the Trustee on a pro rata basis, by lot or by such method as the Trustee shall
deem fair and equitable; provided, however, that no Notes of a principal amount
of $1,000 or less shall be redeemed in part; provided, further, that if a
partial redemption is made with the proceeds of any Equity Offering, selection
of the Notes or portions thereof
30
for redemption shall be made by the Trustee only on a pro rata basis or on as
nearly a pro rata basis as is practicable (subject to the procedures of the
Depositary), unless such method is otherwise prohibited. The Trustee shall make
the selection from the outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Notes selected
for redemption and, in the case of any Notes selected for partial redemption,
the principal amount of the Notes to be redeemed. In the event of a partial
redemption by lot, the Trustee shall select the particular Notes to be redeemed
not less than 30 nor more than 60 days prior to the relevant Redemption Date
from the Outstanding Notes not previously called for redemption. The Company may
redeem Notes in denominations of $1,000 only in whole. The Trustee may select
for redemption portions (equal to $1,000 or any integral multiple of $1,000) of
the principal of Notes that have denominations larger than $1,000. A new Note in
a principal amount equal to the unredeemed portion thereof will be issued in the
name of the Holder thereof upon delivery of the original Note to the Paying
Agent and cancellation of the original Note. On and after the Redemption Date,
interest will cease to accrue on Notes or portions thereof called for redemption
as long as the Company has made a deposit with the Paying Agent in U.S. legal
tender in satisfaction of the applicable Redemption Price pursuant to this
Indenture.
(b) For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to redemption of Notes shall
relate, in the case of any Note redeemed or to be redeemed only in part, to the
portion of the principal amount of that Note which has been or is to be
redeemed.
Section 3.03. Notice of Redemption.
Notice of redemption shall be mailed by first class mail at
least 30 but not more than 60 calendar days before the Redemption Date to each
Holder of Notes to be redeemed at the registered address of such Holder. If any
Note is to be redeemed in part only, the notice of redemption that relates to
such Note shall state the portion of the principal amount thereof to be
redeemed. If the Company elects to have the Trustee give notice of redemption,
the Trustee shall give notice in the name of the Company and at the Company's
expense; provided, however, that the Company shall furnish the Trustee all
information required to be contained in the notice.
The notice shall identify the Notes to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest,
if any, to be paid;
(3) whether or not the Company is redeeming all outstanding
Notes and if any Note is being redeemed in part, the portion of
the principal amount (equal to $1,000 in principal amount or any
integral multiple thereof) of such Note to be redeemed and that,
on and after the Redemption Date, upon surrender of such Note, a
new Note or Notes in principal amount equal to the unredeemed
portion thereof will be issued;
(4) the name, address and telephone number of the Paying
Agent;
(5) that Notes called for redemption must be surrendered to
the Paying Agent at the address specified in such notice to
collect the Redemption Price plus accrued interest, if any;
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(6) that, unless the Company defaults in making the
redemption payment, interest on Notes called for redemption
ceases to accrue on and after the Redemption Date and the only
remaining right of the Holders is to receive payment of the
Redemption Price plus accrued interest to the Redemption Date
upon surrender of the Notes to the Paying Agent;
(7) the subparagraph of the Notes pursuant to which the
Notes called for redemption are being redeemed;
(8) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Notes to
be redeemed and the aggregate principal amount of Notes to be
outstanding after such partial redemption; and
(9) the CUSIP or ISIN number, if any, listed in the notice
or printed on the Notes, and that no representation is made as to
the accuracy or correctness of such CUSIP or ISIN number.
Section 3.04. Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.03 hereof
is mailed, Notes called for redemption become due and payable on the Redemption
Date and at the Redemption Price, including any make-whole amount, plus accrued
interest to the Redemption Date, if any. Upon surrender to the Paying Agent,
such Notes shall be paid at the Redemption Price, including any make-whole
amount, plus accrued interest to the Redemption Date, if any; provided that if
the Redemption Date is after a Record Date and on or prior to the Interest
Payment Date, the accrued interest shall be payable to the Holder of the
redeemed Notes registered on the relevant Record Date.
Section 3.05. Deposit of Redemption Price.
On or prior to 10:00 a.m., New York City time, on the relevant
Redemption Date, the Company shall have deposited with the Paying Agent in
immediately available funds U.S. legal tender sufficient to pay the Redemption
Price of and accrued interest, if any, on all Notes to be redeemed on that date.
The Paying Agent shall return to the Company any money deposited with the Paying
Agent by the Company in excess of the amount necessary to pay the Redemption
Price of and accrued interest, if any, on all Notes to be redeemed.
On and after any Redemption Date, if U.S. legal tender
sufficient to pay the Redemption Price of and accrued interest, if any, on Notes
called for redemption shall have been made available in accordance with the
preceding paragraph, the Notes called for redemption will cease to accrue
interest and the only right of the Holders of such Notes will be to receive
payment of the Redemption Price of and, subject to the proviso in Section 3.04
hereof, accrued and unpaid interest on such Notes to the Redemption Date, if
any. If any Note called for redemption shall not be so paid, interest will
continue to accrue and be paid, from the Redemption Date until such redemption
payment is made, on the unpaid principal of the Note and any interest not paid
on such unpaid principal, in each case, at the rate and in the manner provided
for in Section 2.12 hereof.
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Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company
shall execute and the Trustee shall authenticate, at the expense of the Company,
for a Holder a new Note equal in principal amount to the unredeemed portion of
the Note surrendered; provided that each new Note will be in a principal amount
of $1,000 or an integral multiple of $1,000.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay the principal of and interest (including
all Additional Interest as provided in the Registration Rights Agreement) on the
Notes on the dates and in the manner provided in the Notes and this Indenture.
An installment of principal or interest shall be considered paid on the date it
is due if the Trustee or Paying Agent holds, for the benefit of the Holders, on
that date money designated for and sufficient to pay such installment in full
and is not prohibited from paying such money to the Holders pursuant to the
terms of this Indenture.
The Company shall pay interest on overdue principal and
interest on overdue interest, to the extent lawful as provided for in Section
2.12 hereof.
Section 4.02. Reports.
Whether or not required by the rules and regulations of the
Commission, so long as any Notes are outstanding, the Company shall file with
the Commission, to the extent such filings are accepted by the Commission, and
shall furnish (within 15 days after such filing) to the Trustee and to the
Holders all quarterly and annual reports and other information, documents and
reports that would be required to be filed with the Commission pursuant to
Section 13 of the Exchange Act if the Company were required to file under such
section. In addition, the Company shall make such information available to
prospective purchasers of the Notes, securities analysts and broker-dealers who
request it in writing. Delivery of such reports, information and documents to
the Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 4.03. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead (as a defense or
otherwise) or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension law or any usury law or other law which would prohibit
or forgive the Company from paying all or any portion of the principal of,
make-whole amount, if any, and/or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and the Company
33
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
Section 4.04. Compliance Certificate; Notice of Default; Tax Information.
(a) The Company shall deliver to the Trustee, within 90
days after the end of the Company's fiscal year commencing with the fiscal year
ending December 31, 2000, an Officers' Certificate (one of the signers of which
shall be the principal executive officer, principal financial officer or
principal accounting officer of the Company) stating that to the best of his or
her knowledge no Default or Event of Default has occurred, listing all
Restricted Payments for such year, and if a Default or Event of Default shall
have occurred, describing all of such Defaults or Events of Default of which he
or she may have knowledge and what action the Company is taking or proposes to
take with respect thereto. The Officers' Certificate shall also notify the
Trustee should the Company elect to change the manner in which it fixes its
fiscal year end.
(b) The annual financial statements delivered pursuant to
Section 4.02 shall be accompanied by a written report addressed to the Trustee
of the Company's independent accountants (who shall be a firm of established
national reputation) that in conducting their audit of such financial statements
nothing has come to their attention that would lead them to believe that a
Default or Event of Default has occurred under this Indenture insofar as they
relate to accounting matters or, if any such violation has occurred, specifying
the nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
(c) If (i) any Default or Event of Default has occurred
and is continuing or (ii) any Holder seeks to exercise any remedy hereunder with
respect to a claimed default under this Indenture or the Notes, the Company
shall deliver to the Trustee, at its address set forth in Section 11.02 hereof,
by registered or certified mail or by telegram or facsimile transmission
followed by hard copy by registered or certified mail an Officers' Certificate
specifying such Default or Event of Default, notice or other action, the status
thereof and what action the Company is taking or proposes to take, which
Officers' Certificate shall be so delivered within five (5) Business Days of its
becoming aware of such occurrence.
Section 4.05. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all material taxes,
assessments and governmental charges (including withholding taxes and any
penalties, interest and additions to taxes) levied or imposed upon it or any of
its Subsidiaries or properties of it or any of its Subsidiaries and (ii) all
lawful claims for labor, materials and supplies that, if unpaid, might by law
become a Lien upon the property of it or any of its Subsidiaries; provided,
however, 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 properly instituted and diligently conducted for which adequate
reserves, to the extent required under GAAP, have been taken.
34
Section 4.06. Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect (i)
its corporate existence, and the corporate, partnership or limited liability
company or other existence of each Subsidiary, in accordance with the respective
organizational documents (as the same may be amended from time to time) of each
Subsidiary and the material rights (charter and statutory), licenses and
franchises of the Company and its Subsidiaries except where the failure to
preserve and keep in full force and effect any such rights, licenses and
franchises shall not have a material adverse effect on the financial condition,
business, operations or prospects of the Company and its Subsidiaries taken as a
whole; and provided that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, limited liability company,
partnership or other existence of any of the Subsidiaries, if the Board of
Directors of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries, taken as a whole.
Section 4.07. Maintenance of Office or Agency.
The Company shall maintain an office or agency in the Borough
of Manhattan, The City of New York, where Notes may be surrendered for
registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee as set forth in Section 11.02 hereof.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations.
The Company shall give prompt written notice to the Trustee of such designation
or rescission and of any change in the location of any such other office or
agency.
The Company hereby initially designates the Corporate Trust
Office of the Trustee set forth in Section 11.02 hereof as such office of the
Company in the Borough of Manhattan, The City of New York.
Section 4.08. Compliance with Laws.
The Company shall comply, and shall cause each of its
Subsidiaries to comply, with all applicable statutes, rules, regulations, orders
and restrictions of the United States of America and all other sovereign
nations, all states and municipalities thereof, and of any governmental
department, commission, board, regulatory authority, bureau, agency and
instrumentality of the foregoing, in respect of the conduct of their respective
businesses and the ownership of their respective properties, except for such
noncompliances as would not in the aggregate have a material adverse effect on
the financial condition or results of operations of the Company and its
Subsidiaries taken as a whole.
35
Section 4.09. Maintenance of Properties and Insurance.
(a) The Company shall cause all material properties owned
by or leased by it or any of its Subsidiaries used or useful to the conduct of
the Company's business or the business of any of its Subsidiaries to be
maintained and kept in normal condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in its
judgment may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section 4.09 shall prevent the Company or any of
its Subsidiaries from discontinuing the use, 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 Board of Directors of the Company or of the Board of
Directors of the Subsidiary of the Company concerned, desirable in the conduct
of the business of the Company or any Subsidiary of the Company.
(b) The Company shall maintain, and shall cause the
Subsidiaries to maintain, insurance with responsible carriers against such risks
and in such amounts, and with such deductibles, retentions, self-insured amounts
and co-insurance provisions, as, in the reasonable judgment of the Company, may
be necessary.
Section 4.10. Limitation on Restricted Payments.
The Company shall not, and shall not permit any of its
Subsidiaries, directly or indirectly, to make any Restricted Payment if at the
time of such Restricted Payment: (i) a Default or Event of Default shall have
occurred and be continuing or shall occur as a consequence thereof; (ii) after
giving effect to the proposed Restricted Payment, the amount of such Restricted
Payment, when added to the aggregate amount of all Restricted Payments made
after September 25, 2000, exceeds the sum of: (a) 50% of the Company's
Consolidated Net Income accrued during the period (taken as a single period)
commencing on July 1, 1997 to and including the fiscal quarter ended immediately
prior to the date of such Restricted Payment (or, if such aggregate Consolidated
Net Income shall be a deficit, minus 100% of such aggregate deficit); (b) the
net cash proceeds from the issuance and sale of the Company's Capital Stock
(other than to a Subsidiary of the Company) that is not Disqualified Stock
during the period (taken as a single period) commencing with the Issue Date; and
(c) $50,000,000; or (iii) the Company would not be able to incur an additional
$1.00 of Indebtedness pursuant to Section 4.11 hereof.
Notwithstanding the foregoing, the Company may: (w) pay any
dividend within 60 days after the date of declaration thereof if the payment
thereof would have complied with the limitations of this Section 4.10 on the
date of declaration; (x) retire shares of the Company's Capital Stock or the
Company's or a Subsidiary of the Company's Indebtedness out of the proceeds of a
substantially concurrent sale (other than to a Subsidiary of the Company) of
shares of the Company's Capital Stock (other than Disqualified Stock); (y) make
Investments in Joint Ventures, when added to the aggregate amount of all such
other Investments made pursuant to this clause (y) (or such other Investments as
would have been made pursuant to this clause (y) had such clause been in effect)
after September 25, 2000, not exceeding at any time 5% of Consolidated Tangible
Assets (with each such Investment being valued as of the date made and without
regard to subsequent changes in value); and (z) make Investments, when added to
the aggregate amount of all such other Investments made pursuant to this clause
(z) (or such other Investments as would have been made pursuant to this clause
(z) had such clause been in effect) after September 25, 2000, not exceeding at
any time 2.5% of
36
Consolidated Tangible Assets (with each such Investment being valued as of the
date made and without regard to subsequent changes in value); provided, however,
that each Restricted Payment described in clauses (w) and (x) above shall be
taken into account for purposes of computing the aggregate amount of all
Restricted Payments pursuant to clause (ii) of the immediately preceding
paragraph.
Section 4.11. Limitation on Additional Indebtedness and Subsidiary Preferred
Stock.
(a) After the Issue Date, (i) the Company shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly, create,
incur, issue, assume, guarantee, extend the Stated Maturity of, or otherwise
become liable with respect to (collectively, "incur"), any Indebtedness
(including, without limitation, Acquired Indebtedness) and (ii) the Company
shall not permit any of its Subsidiaries to issue (except to the Company or any
of its Wholly Owned Subsidiaries) or create any Preferred Stock or permit any
Person (other than the Company or a Wholly Owned Subsidiary) to own or hold any
interest in any Preferred Stock of any such Subsidiary; provided, however, that
the Company may incur Indebtedness and the Company may permit its Subsidiaries
to issue or create Preferred Stock if, after giving effect thereto, the
Company's EBITDA Coverage Ratio on the date thereof would be at least 2.5 to 1,
determined on a pro forma basis as if the incurrence of such additional
Indebtedness or the issuance of such Preferred Stock (declared to have an
aggregate principal amount equal to the aggregate liquidation value of such
Preferred Stock), as the case may be, and the application of the net proceeds
therefrom, had occurred at the beginning of the four-quarter period used to
calculate the Company's EBITDA Coverage Ratio.
(b) Notwithstanding the foregoing, and irrespective of
the EBITDA Coverage Ratio, in addition to Existing Indebtedness: (i) the Company
may incur Indebtedness pursuant to the Notes issued on the Issue Date and the
Exchange Notes issued in exchange for such Notes; (ii) the Company may incur
Indebtedness under the 2000 Credit Agreement in an aggregate principal amount at
any time not to exceed $400,000,000; (iii) the Company and its Subsidiaries may
incur Refinancing Indebtedness; (iv) the Company may incur any Indebtedness to
any Subsidiary or any Subsidiary may incur any Indebtedness to the Company or to
any Subsidiary; (v) the Company and its Subsidiaries may incur any Indebtedness
evidenced by letters of credit which are used in the ordinary course of business
of the Company and its Subsidiaries to secure workers' compensation and other
insurance coverages; (vi) the Company and its Subsidiaries may incur Capitalized
Lease Obligations and Attributable Indebtedness, in each case excluding Existing
Indebtedness, in an aggregate principal amount at any one time outstanding not
to exceed 10% of Consolidated Tangible Assets; and (vii) the Subsidiaries of the
Company may incur Indebtedness, excluding Existing Indebtedness, in an aggregate
principal amount at any time outstanding not to exceed $250,000,000, in addition
to Indebtedness permitted to be incurred by Subsidiaries pursuant to the
foregoing clauses (iii) - (vi).
(c Notwithstanding the foregoing, the Company may permit
any Subsidiary which is a partnership formed to operate a single healthcare
facility to issue or create Preferred Stock, provided that the aggregate amount
of all such Preferred Stock outstanding after giving effect to such issuance or
creation shall not exceed 1% of Consolidated Tangible Assets as of the date of
such issuance or creation.
37
Section 4.12. Limitation on Asset Sales.
(a) The Company shall not, and shall not permit any of
its Subsidiaries to, consummate any Asset Sale unless (i) the Company or such
Subsidiary receives consideration at the time of such Asset Sale at least equal
to the Fair Market Value of the assets included in such Asset Sale, (ii)
immediately before and immediately after giving effect to such Asset Sale, no
Default or Event of Default shall have occurred and be continuing and (iii) at
least 75% of the consideration received by the Company or such Subsidiary
therefor is in the form of cash paid at the closing thereof, provided, however,
that this clause (iii) shall not apply if, after giving effect to such Asset
Sale, the aggregate principal amount of all notes or similar debt obligations
and Fair Market Value of all equity securities received by the Company from all
Asset Sales since September 25, 2000 (other than such notes or similar debt
obligations and such equity securities converted into or otherwise disposed of
for cash and applied in accordance with the second succeeding sentence) would
not exceed 2.5% of Consolidated Tangible Assets. The amount (without
duplication) of any (x) Indebtedness (other than Subordinated Indebtedness) of
the Company or such Subsidiary that is expressly assumed by the transferee in
such Asset Sale and with respect to which the Company or such Subsidiary, as the
case may be, is unconditionally released by the holder of such Indebtedness and
(y) any notes, securities or similar obligations or items of property received
from such transferee that are immediately converted, sold or exchanged by the
Company or such Subsidiary for cash (to the extent of the cash actually so
received), shall be deemed to be cash for purposes of this Section 4.12. If at
any time any non-cash consideration received by the Company or such Subsidiary,
as the case may be, in connection with any Asset Sale is converted into or sold
or otherwise disposed of for cash (other than interest received with respect to
any such non-cash consideration), then the date of such conversion or
disposition shall be deemed to constitute the date of an Asset Sale hereunder
and the Net Proceeds thereof shall be applied in accordance with this Section
4.12. A transfer of assets by the Company to a Wholly Owned Subsidiary or by a
Wholly Owned Subsidiary to the Company or to another Wholly Owned Subsidiary
will not be deemed to be an Asset Sale, and a transfer of assets that
constitutes a Restricted Payment and that is permitted under Section 4.10 hereof
will not be deemed to be an Asset Sale.
(b) If the Company or any Subsidiary engages in an Asset
Sale, the Company or such Subsidiary shall, no later than 360 days after such
Asset Sale, (i) apply all or any of the Net Proceeds therefrom to repay
Indebtedness that ranks pari passu with the Notes and is secured by the assets
disposed of in the Asset Sale or to repay Bank Debt in accordance with the
applicable provisions thereof, (ii) invest all or any part of the Net Proceeds
therefrom in the lines of business of the Company or any of its Subsidiaries
immediately prior to such investment or (iii) any combination of clauses (i) and
(ii) above. The amount of such Net Proceeds not applied or invested as provided
in this paragraph (b) will constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds equals
or exceeds $5,000,000, the Company shall be required to make an offer to
purchase (an "Asset Sale Offer") from all Holders, an aggregate principal amount
of Notes equal to the amount of such Excess Proceeds as follows:
(i) The Company shall make an Asset Sale Offer to all Holders
in accordance with the procedures set forth in this Section 4.12 to
purchase the maximum principal amount (expressed as a multiple of
$1,000) of Notes that may be purchased out of the amount (the "Asset
Sale Payment Amount") of such Excess Proceeds.
38
(ii) The offer price for the Notes shall be payable in cash in
an amount equal to 100% of the principal amount of the Notes tendered
pursuant to such Asset Sale Offer, plus accrued and unpaid interest and
Additional Interest, if any, to the date such Asset Sale Offer is
consummated (the "Asset Sale Purchase Price"), in accordance with the
procedures set forth in this Section 4.12. To the extent that the
aggregate Asset Sale Purchase Price of Notes tendered pursuant to an
Asset Sale Offer is less than the Asset Sale Payment Amount relating
thereto (such shortfall constituting a "Net Proceeds Deficiency"), the
Company may use such Net Proceeds Deficiency, or a portion thereof, for
general corporate purposes.
(iii) If the aggregate Asset Sale Purchase Price of Notes
validly tendered and not withdrawn by holders thereof exceeds the Asset
Sale Payment Amount, Notes to be purchased shall be selected on a pro
rata basis.
(iv) Upon completion of such Asset Sale Offer in accordance
with the foregoing provisions, the amount of Excess Proceeds with
respect to which such Asset Sale Offer was made shall be deemed to be
zero.
In the event that any other Indebtedness of the Company which
ranks pari passu with the Notes ("Other Debt") requires an offer to purchase to
be made to repurchase such Other Debt upon the consummation of an Asset Sale,
the Company may apply the Excess Proceeds to both purchase such Other Debt and
to make an Asset Sale Offer, provided, that the purchase price of such Other
Debt does not exceed 100% of the aggregate principal amount or accreted value
thereof plus interest thereon. With respect to any Excess Proceeds, the Company
shall make the Asset Sale Offer in respect thereof at the same time as the
analogous offer to purchase is made pursuant to any Other Debt and the purchase
date in respect thereof shall be the same as the purchase date in respect
thereof pursuant to any Other Debt.
With respect to any Asset Sale Offer effected pursuant to this
Section 4.12, to the extent the aggregate principal amount of Notes and Other
Debt, if any, tendered pursuant to such Asset Sale Offer and the concurrent
offer to purchase with respect to such Other Debt exceeds the Excess Proceeds,
such Notes and Other Debt, if any, shall be purchased pro rata based on the
aggregate principal amount of such Notes and such Other Debt tendered by each
holder thereof.
(d) If the Company is required to make an Asset Sale Offer,
the Company shall, within 30 days following the date specified in clause (c)
above, notify the Trustee thereof and give written notice of such Asset Sale
Offer to each Holder by first-class mail, postage prepaid, at the address of
such Holder appearing in the register maintained by the Registrar, stating:
(1) that an Asset Sale Offer is being made pursuant to this
Section 4.12;
(2) that such Holders have the right to require the Company to
apply the Excess Proceeds to repurchase the Notes at a purchase price
in cash equal to 100% of the principal amount thereof plus accrued and
unpaid interest, if any, to the purchase date which shall be no earlier
than 30 days and not later than 60 days from the date such notice is
mailed (the "Excess Proceeds Payment Date");
(3) that any Note not tendered or accepted for payment will
continue to accrue interest;
39
(4) that any Notes accepted for payment pursuant to the Asset
Sale Offer shall cease to accrue interest after the Excess Proceeds
Payment Date;
(5) that Holders accepting the offer to have their Notes
purchased pursuant to the Asset Sale Offer will be required to
surrender the Notes, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Note completed, to the Paying Agent at
the address specified in the notice prior to the close of business on
the Business Day preceding the Excess Proceeds Payment Date;
(6) that Holders will be entitled to withdraw their acceptance
of the Asset Sale Offer if the Paying Agent receives, not later than
the close of business on the third Business Day preceding the Excess
Proceeds Payment Date, a telegram, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Notes
delivered for purchase and a statement that such Holder is withdrawing
his or her election to have such Notes purchased;
(7) that if the aggregate principal amount of Notes
surrendered by Holders exceeds the amount of Excess Proceeds, Company
shall select the Notes to be purchased on a pro rata basis so that the
aggregate amount of Notes so purchased equals the amount of Excess
Proceeds (with such adjustments as may be deemed appropriate by the
Company so that only Notes in denominations of $1,000 or integral
multiples thereof shall be purchased);
(8) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered; provided that each Note purchased and
each such new Note issued shall be in an original principal amount in
denominations of $1,000 or integral multiples thereof;
(9) the calculations used in determining the amount of Excess
Proceeds to be applied to the purchase of such Notes;
(10) any other procedures that a Holder must follow to accept
an Asset Sale Offer or effect withdrawal of such acceptance; and
(11) the name and address of the Paying Agent.
On the Excess Proceeds Payment Date, the Company shall, to the
extent lawful, (1) accept for payment, on a pro rata basis to the extent
necessary, Notes or portions thereof tendered pursuant to the Asset Sale Offer,
(2) deposit with the Paying Agent US legal tender sufficient to pay the purchase
price plus accrued and unpaid interest, if any, on the Notes to be purchased or
portions thereof, (3) deliver or cause to be delivered to the Trustee Notes so
accepted together with an Officers' Certificate stating that such Notes or
portions thereof were accepted for payment by the Company in accordance with the
terms of this Section 4.12. The Paying Agent shall promptly mail to each Holder
so accepted payment in an amount equal to the purchase price for such Notes, and
the Company shall execute and issue, and the Trustee shall promptly authenticate
and make available for delivery to such Holder, a new Note equal in principal
amount to any unpurchased portion of the Notes surrendered; provided that each
Note purchased and each such new Note issued shall be in an original principal
amount in denominations of $1,000 or integral multiples thereof.
40
(e) The Company shall comply with the requirements of Rule
14e-1 under the Exchange Act and other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that
the provisions of any securities laws or regulations conflict with this Section
4.12, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.12 by virtue thereof.
Section 4.13. Limitation on Transactions with Affiliates.
Neither the Company nor any of its Subsidiaries shall,
directly or indirectly, in one transaction or a series of transactions, make any
loan, advance, guarantee or capital contribution to, or for the benefit of, or
sell, lease, transfer or otherwise dispose of any of its properties or assets
to, or for the benefit of, or purchase or lease any property or assets from, or
enter into or amend any contract, agreement or understanding with, or for the
benefit of, any Affiliate of the Company or any of its Subsidiaries or any
Person (or any Affiliate of such Person) holding 10% or more of the Common
Equity of the Company or any of its Subsidiaries, other than transactions in the
ordinary course between the Company and its Subsidiaries or among Subsidiaries
of the Company (an "Affiliate Transaction"), unless: (i) the terms of such
Affiliate Transactions are fair and reasonable to the Company or such
Subsidiary, as the case may be, and are at least as favorable as the terms which
could be obtained by the Company or such Subsidiary, as the case may be, in a
comparable transaction made on an arm's-length basis between unaffiliated
parties; (ii) with respect to any such Affiliate Transaction involving aggregate
payments in excess of $5,000,000, the Company delivers an Officers' Certificate
to the Trustee certifying that such Affiliate Transaction complies with clause
(i) above and a Secretary's Certificate which sets forth and authenticates a
resolution that has been adopted by a vote of a majority of the disinterested
members of the Board of Directors approving such Affiliate Transaction; and
(iii) with respect to any such Affiliate Transaction involving aggregate
payments in excess of $25,000,000, the Company delivers to the Trustee the
certificates specified in clause (ii) above and an opinion of an independent
investment banking firm of national standing in the United States, stating that
such Affiliate Transaction is fair from a financial point of view to the Company
or such Subsidiary, as the case may be; provided, however, that the foregoing
clauses (ii) and (iii) shall not apply to transactions between the Company or
any of its Subsidiaries and XxxXxxxxxXxxxxx.xxx, Inc. or any entity to which the
Company transfers all or substantially all of the rights to its HEALTHSOUTH
Clinical Automation Program.
Section 4.14. Limitation on Liens.
The Company will not create or suffer to exist any Lien (other
than Permitted Liens) on any of its assets, unless contemporaneously therewith:
(i) in the case of any Lien securing an obligation that ranks
pari passu with the Notes, effective provision is made to secure the
Notes at least equally and ratably with or prior to such obligation
with a Lien on the same collateral; and
(ii) in the case of any Lien securing an obligation that is
subordinated in right of payment to the Notes, effective provision is
made to secure the Notes with a Lien on the same collateral that is
prior to the Lien securing such subordinated obligation.
41
Notwithstanding the above, the Company may, without securing
the Notes, create or assume any Indebtedness which is secured by a Lien which
would otherwise be subject to the foregoing restrictions, provided that after
giving effect thereto, the Exempted Debt then outstanding does not exceed 10% of
the total Consolidated Tangible Assets of the Company and its Subsidiaries at
such time.
Section 4.15. Purchase of Notes upon a Change of Control.
(a) Upon the occurrence of a Change of Control, the Company
shall be obligated to make an offer to purchase (the "Change of Control Offer")
the outstanding Notes of each Holder in whole or in part in integral multiples
of $1,000, at a purchase price (the "Change of Control Purchase Price") in cash
in an amount equal to 101% of the principal amount thereof, plus accrued
interest, if any, to the date of purchase (the "Change of Control Purchase
Date"), pursuant to the procedures set forth below.
(b) Within 30 days following any Change of Control, the
Company shall notify the Trustee thereof and give written notice of such Change
of Control to each Holder by first-class mail, postage prepaid, at the address
of such Holder appearing in the register maintained by the Registrar, stating,
among other things:
(1) that the Change of Control Offer is being made pursuant
to this Section 4.15;
(2) that such Holders have the right to require the Company
to repurchase such Notes at the Change of Control Purchase Price
on the Change of Control Purchase Date which shall be no earlier
than 30 days and not later than 60 days from the date such notice
is mailed;
(3) that any Note not tendered or accepted for payment will
continue to accrue interest;
(4) that, unless the Company defaults in its payment of the
Change of Control Purchase Price, any Note accepted for payment
pursuant to the Change of Control Offer shall cease to accrue
interest after the Change of Control Purchase Date;
(5) that Holders accepting the offer to have their Notes
purchased pursuant to a Change of Control Offer will be required
to surrender the Notes, with the form entitled "Option of Holder
to Elect Purchase" on the reverse of the Note completed, to the
Paying Agent at the address specified in the notice prior to the
close of business on the Business Day preceding the Change of
Control Purchase Date;
(6) that Holders will be entitled to withdraw their
acceptance of the Change of Control Offer if the Paying Agent
receives, not later than the close of business on the third
Business Day preceding the Change of Control Purchase Date, a
telegram, facsimile transmission or letter setting forth the name
of the Holder, the principal amount of the Notes delivered for
purchase and a statement that such Holder is withdrawing his or
her election to have such Notes purchased;
(7) any other procedures that a Holder must follow to accept
an Change of Control Offer or effect withdrawal of such
acceptance; and
42
(8) the name and address of the Paying Agent.
On the Change of Control Payment Date, the Company shall, to
the extent lawful, (1) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer, (2) deposit with the Paying Agent U.S.
legal tender sufficient to pay the purchase price of all Notes or portions
thereof so tendered and (3) deliver or cause to be delivered to the Trustee
Notes so accepted together with an Officers' Certificate stating that such Notes
or portions thereof were accepted for payment by the Company pursuant to this
Section 4.15. The Paying Agent shall promptly mail to each Holder so accepted
payment in an amount equal to the purchase price for such Notes, and the Company
shall execute and issue, and the Trustee shall promptly authenticate and mail to
such Holder, a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered; provided that each such new Note shall be issued in an
original amount in denominations of $1,000 and integral multiples thereof.
(c) The Company shall comply with the requirements of Rule
14e-1 under the Exchange Act and other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of Notes pursuant to a Change of Control Offer. To the
extent that the provisions of any securities laws or regulations conflict with
this Section 4.15, the Company shall comply with the applicable securities laws
and regulations and shall not be deemed to have breached its obligations under
this Section 4.15 by virtue thereof.
Section 4.16. Limitation on Restrictions on Distributions from Subsidiaries.
The Company shall not, and shall not permit any of its
Subsidiaries to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction (other than encumbrances or
restrictions imposed by law or by judicial or regulatory action or by provisions
in leases or other agreements that restrict the assignability thereof) on the
ability of any Subsidiary of the Company to (i) pay dividends or make any other
distributions on its Capital Stock or any other interest or participation in, or
measured by, its profits, owned by the Company or any of its other Subsidiaries,
or pay interest on or principal of any Indebtedness owed to the Company or any
of its other Subsidiaries, (ii) make loans or advances to the Company or any of
its other Subsidiaries or (iii) transfer any of its properties or assets to the
Company or any of its other Subsidiaries, in each case except for encumbrances
or restrictions existing under or by reason of (a) applicable law, (b) the
Credit Agreements, (c) Existing Indebtedness, (d) any restrictions under any
agreement evidencing any Acquired Indebtedness that was permitted to be incurred
pursuant to this Indenture and which was not incurred in anticipation or
contemplation of the related acquisition, provided that such restrictions and
encumbrances only apply to assets that were subject to such restrictions and
encumbrances prior to the acquisition of such assets by the Company or its
Subsidiaries, (e) restrictions or encumbrances replacing those permitted by
clause (b), (c) or (d) above which, taken as a whole, are not materially more
restrictive, (f) this Indenture, (g) any restrictions and encumbrances arising
in connection with Refinancing Indebtedness; provided, however, that any
restrictions or encumbrances of the type described in this clause (g) that arise
under such Refinancing Indebtedness are not, taken as a whole, materially more
restrictive than those under the agreement creating or evidencing the
Indebtedness being refunded or refinanced, (h) any restrictions with respect to
a Subsidiary of the Company imposed pursuant to an agreement that has been
entered into for the sale or other disposition of all or substantially all of
the Capital Stock or assets of such Subsidiary, (i) any agreement restricting
the sale or other disposition of property securing Indebtedness if such
agreement does not expressly restrict the
43
ability of a Subsidiary of the Company to pay dividends or make loans or
advances and (j) customary restrictions in purchase money debt or leases
relating to the property covered thereby.
Section 4.17. Limitations on Layering Indebtedness.
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, incur any Indebtedness that purports to
be by its terms subordinated to any other Indebtedness of the Company or such
Subsidiary, as the case may be, unless such Indebtedness is also expressly
subordinated to the Notes to the same extent and in the same manner as such
Indebtedness is subordinated to such other Indebtedness.
ARTICLE 5
SURVIVING ENTITY
Section 5.01. Limitations on Mergers and Consolidations.
The Company shall not consolidate or merge with or into, or
sell, lease, convey or otherwise dispose of all or substantially all of its
assets, or assign any of its obligations under the Notes or this Indenture, to
any Person unless: (i) the Person formed by or surviving such consolidation or
merger (if other than the Company), or to which such sale, lease, conveyance or
other disposition or assignment shall be made (collectively, the "Successor"),
is a corporation organized and existing under the laws of the United States or
any State thereof or the District of Columbia, and the Successor assumes by
supplemental indenture in a form satisfactory to the Trustee all of the
obligations of the Company under the Notes and this Indenture; (ii) immediately
after giving effect to such consolidation, merger, sale, lease, conveyance or
other disposition or assignment and the use of any net proceeds therefrom on a
pro forma basis, no Default or Event of Default shall have occurred and be
continuing; (iii) immediately after giving effect to such consolidation, merger,
sale, lease, conveyance or other disposition or assignment and the use of any
net proceeds therefrom on a pro forma basis, the Consolidated Net Worth of the
Company or the Successor, as the case may be, would be at least equal to the
Consolidated Net Worth of the Company immediately prior to such transaction;
(iv) immediately after giving effect to such consolidation, merger, sale, lease,
conveyance or other disposition or assignment and the use of any net proceeds
therefrom on a pro forma basis, the EBITDA Coverage Ratio of the Company or the
Successor, as the case may be, would be such that the Company or the Successor,
as the case may be, would be entitled to incur at least $1.00 of additional
Indebtedness under the EBITDA Coverage Ratio test in Section 4.11 hereof; and
(v) the Company shall have delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, sale,
lease, conveyance or other disposition or assignment complies with the
provisions of this Indenture.
Section 5.02. Successor Substituted.
Upon any consolidation, merger, conveyance or any transfer of
all or substantially all of the assets of the Company in accordance with Section
5.01 hereof, the surviving entity formed by such consolidation or into which the
Company or any such Subsidiary is merged or to which such transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the
44
Company or such Subsidiary, as the case may be, under this Indenture with the
same effect as if such surviving entity had been named as the Company or such
Subsidiary, as the case may be herein, and thereafter the predecessor entity
shall be relieved of all obligations and covenants under this Indenture and the
Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" 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 Notes as and when the same shall become due and payable, and
continuance of such default for a period of 30 days;
(b) default in the payment of all or any part of the
principal, or make-whole amount, if any, on any of the Notes as and
when the same shall become due and payable either at its Stated
Maturity, upon any redemption, by declaration or otherwise;
(c) failure by the Company to comply with its obligations
or covenants described under Section 4.12, Section 4.15 or Article 5
hereof;
(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 Notes or this Indenture (other than the covenants
referred to in clauses (a), (b) and (c) above) 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" under this Indenture 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 Notes;
(e) default under any bond, debenture, note or other evidence
of indebtedness for money borrowed by the Company or any Subsidiary of
the Company 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 of the
Company, 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
discharged, or such acceleration is not rescinded or annulled, within a
45
period of 10 days after there shall have been given 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 Notes a
written notice specifying such default and requiring the Company to
cause such Indebtedness to be discharged or cause such acceleration to
be rescinded or annulled;
(f) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Significant
Subsidiary for any substantial part of its or their property or
ordering the winding up or liquidation of its or their affairs, and
such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; or
(g) the Company or any Significant Subsidiary shall commence a
voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such law, or consent
to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of the
Company or any Significant Subsidiary or for any substantial part of it
or their property, or make any general assignment for the benefit of
creditors.
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default
specified in Section 6.01(f) or 6.01(g) hereof relating to the Company) shall
have occurred and be continuing under this Indenture, the Trustee, by written
notice to the Company, or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding by written notice to the Company and the
Trustee, may declare all amounts owing under the Notes to be due and payable.
Upon effectiveness of such acceleration, the aggregate principal of, make-whole
amount, if any, and interest on the outstanding Notes shall immediately become
due and payable. At any time after such acceleration but before a judgment or
decree based on such acceleration is obtained by the Trustee, or any Holder, the
Holders of a majority in aggregate principal amount of outstanding Notes, by
written notice to the Company and the Trustee, may rescind and annul such
acceleration if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(1) all overdue interest on the Notes;
(2) all unpaid principal of and make-whole amount, if any,
on any of the outstanding Notes that has become due otherwise
than by such declaration of acceleration and interest thereon at
the rate borne by the Notes;
(3) to the extent that payment of such interest is lawful,
interest upon overdue interest and overdue principal at the rate
borne by the Notes;
(4) all sums paid or advanced by the Trustee under this
Indenture and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
46
(b) all Events of Default, other than the non-payment of amounts
of principal of, make-whole amount, if any, or interest on the Notes
that has become due solely by such declaration of acceleration, have
been cured or waived; and
(c) in the event of the cure or waiver of an Event of Default
with respect to the Company of the type described in Section 6.01(f)
or 6.01(g) hereof, the Trustee shall have received an Officers'
Certificate and an Opinion of Counsel that such Event of Default has
been cured or waived.
No such rescission shall affect any subsequent Default or
impair any right consequent thereto.
In case an Event of Default with respect to the Company of the
type described in Section 6.01(f) or 6.01(g) hereof shall occur, the aggregate
principal of, make-whole amount, if any, and interest on the outstanding Notes
shall immediately become due and payable without any declaration or other act on
the part of the Trustee or the Holders.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, or make-whole amount, if any, and interest on the Notes
or to enforce the performance of any provision of the Notes or this Indenture
and may take any necessary action requested of it as Trustee to settle,
compromise, adjust or otherwise conclude any proceedings to which it is a party.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
Section 6.04. Waiver of Existing Defaults and Events of Default.
Subject to Sections 2.09, 6.02, 6.07 and 8.02 hereof, the
Holders of a majority in principal amount of the Notes then outstanding have the
right to waive existing Defaults under or in compliance with any provision of
this Indenture or the Notes except a continuing Default in the payment of the
principal of, or interest or make-whole amount, if any, on any Note as specified
in clauses (a) and (b) of Section 6.01 hereof or in respect of a covenant or a
provision which cannot be modified or amended without the consent of all Holders
as provided for in Section 8.02 hereof. The Company shall deliver to the Trustee
an Officers' Certificate stating that the requisite percentage of Holders have
consented to such waiver and attach copies of such consents. In case of any such
waiver, the Company, the Trustee and the Holders shall be restored to their
former positions and rights hereunder and under the Notes, respectively. This
paragraph of this Section 6.04 shall be in lieu of ss. 316(a)(1)(B) of the TIA
and such ss. 316(a)(1)(B) of the TIA is hereby expressly excluded from this
Indenture and the Notes, as permitted by the TIA.
Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have
47
been cured and not to have occurred for every purpose of this Indenture, but no
such waiver shall extend to any subsequent or other Default or Event of Default
or impair any right consequent thereto.
Section 6.05. Control by Majority.
Subject to Section 2.09 hereof, the Holders of a majority in
principal amount of the then outstanding Notes shall have the right to direct
the time, method and place of conducting any proceeding for exercising any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee by this Indenture. The Trustee, however, may refuse to follow any
direction that conflicts with law or this Indenture or that the Trustee
determines in its reasonable judgment may be unduly prejudicial to the rights of
another Holder not taking part in such direction, and the Trustee shall have the
right to decline to follow any such direction if the Trustee, being advised by
counsel, determines that the action so directed may not lawfully be taken or if
the Trustee in good faith shall, by a Trust Officer, determine that the
proceedings so directed may involve it in personal liability; provided that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction. In the event the Trustee takes any action or
follows any direction pursuant to this Indenture, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against any loss or
expense caused by taking such action or following such direction. This Section
6.05 shall be in lieu of Section 316(a)(1)(A) of the TIA, and such Section
316(a)(1)(A) of the TIA is hereby expressly excluded from this Indenture and the
Notes, as permitted by the TIA.
Section 6.06. Limitation on Suits.
Subject to Section 6.07 hereof, no Holder has any right to
institute any proceeding with respect to this Indenture or any remedy hereunder
unless:
(1) the Holder gives the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal
amount of the outstanding Notes make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
reasonably satisfactory to the Trustee against any loss,
liability or expense which may be incurred in compliance with
such request;
(4) the Trustee fails to institute such proceeding within 60
calendar days after receipt of such notice and the offer of
indemnity; and
(5) the Trustee has not received directions inconsistent
with such written request during such 60-day period by the
Holders of a majority in aggregate principal amount of then
outstanding Notes.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
48
Section 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of, or make-whole amount, if
any, or accrued interest on any Note held by such Holder on or after the
respective due dates expressed in such Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, is absolute
and unconditional (subject to the terms of this Indenture) and shall not be
impaired or affected without the consent of such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust against
the Company for the whole amount of unpaid principal, make-whole amount, if any,
and accrued interest remaining unpaid, together with, to the extent that payment
of such interest is lawful, interest on overdue principal and interest on
overdue installments of interest, in each case at the rate set forth in Section
4.01 hereof, and such further amounts as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same after
deduction of its charges and expenses to the extent that any such charges and
expenses are not paid out of the estate in any such proceedings and any
custodian in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 hereof.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan or reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceedings.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07
hereof;
SECOND: if the Holders are forced to proceed against the
Company directly without the Trustee, to Holders for their collection costs; and
49
THIRD: to Holders for amounts due and unpaid on the Notes for
principal, make-whole amount, if any, and interest as to each, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Notes.
The Trustee, upon prior written notice to the Company, may fix
a Record Date and payment date for any payment to Holders pursuant to this
Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07 hereof or a suit by Holders of more than 10% in
principal amount of the Notes then outstanding.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default actually known to a Trust Officer
of the Trustee has occurred and is continuing, the Trustee shall exercise such
rights and powers vested in it by this Indenture and use the same degree of care
and skill in their exercise as a prudent Person would exercise under the
circumstances in the conduct of such Person's own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) The Trustee need perform only those duties and obligations
that are specifically set forth in this Indenture.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture but, in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(c) Notwithstanding anything to the contrary herein contained,
the Trustee may not be relieved from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
50
(A) This paragraph does not limit the effect of
paragraph (b) of this Section 7.01.
(B) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer of the Trustee, unless
it is proved that the Trustee was negligent in ascertaining the
pertinent facts.
(C) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with
a direction received by it pursuant to Sections 6.02, 6.04 and 6.05
hereof.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or to take or omit to take any
action under this Indenture or take any action at the request or direction of
Holders if it shall have reasonable grounds for believing that repayment of such
funds is not assured to it or it does not receive from such Holders an indemnity
reasonably satisfactory to it against such risk, liability, loss, fee or expense
which might be incurred by it in compliance with such request or direction.
(e) Whether or not expressly so provided, the provisions of
the TIA and paragraphs (a), (b), (c) and (d) of this Section 7.01 shall govern
every provision of this Indenture that in any way relates to the Trustee.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by the law or as otherwise agreed to in writing by
the Trustee and the Company.
(g) Unless otherwise specifically provided in this Indenture,
any demand, request direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
Section 7.02. Rights of Trustee.
Subject to Section 7.01 hereof:
(1) The Trustee may conclusively rely on any document believed
by it in good faith to be genuine and to have been signed or presented by the
proper Person. The Trustee need not investigate any fact or matter stated in the
document.
(2) Before the Trustee acts or refrains from acting with
respect to any matters contemplated by this Indenture or the Notes it may
require an Officers' Certificate or an Opinion of Counsel, or both, which shall
conform to the provisions of Section 11.05 hereof. The Trustee shall be fully
protected and shall not be liable for any action it takes or omits to take in
good faith in reliance on such Officers' Certificate or Opinion of Counsel.
(3) The Trustee may act through agents, attorneys, custodians
or nominees and shall not be responsible for the misconduct or negligence of any
agent, attorney, custodian or nominee appointed with due care by it hereunder.
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(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be authorized or
within its rights or powers under this Indenture.
(5) Before the Trustee acts or refrains from acting with
respect to any matters contemplated by this Indenture or the Notes, the Trustee
may consult with counsel of its selection, and the advice or opinion of such
counsel, accountant, appraiser or other expert adviser whether retained or
employed by the Company or the Trustee shall be full and complete authorization
and protection from liability in respect of any action taken, omitted or
suffered by it hereunder in good faith and in reliance thereon.
(6) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit, and if the Trustee shall determine in good faith to make such further
inquiry or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the sole cost of
the Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation.
(7) In no event shall the Trustee be liable for the selection
of investments or for investment losses incurred thereon. The Trustee shall have
no liability in respect of losses incurred as a result of the liquidation of any
such investment prior to its Stated Maturity or the failure of the party
directing such investment to provide timely written investment direction. The
Trustee shall have no obligation to invest or reinvest any amounts held
hereunder in the absence of specific written investment direction.
(8) The rights, privileges, immunities and protections
afforded to the Trustee pursuant to this Indenture (including, without
limitation, the right to be indemnified) shall also be afforded to the Trustee
in each of its capacities hereunder and each Paying Agent, Registrar,
Co-Registrar, Custodian, transfer agent or tender agent and each agent or other
Person employed to act hereunder.
(9) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Trust Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Notes and this Indenture.
(10) The Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person authorized to
sign an Officers' Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may make loans to, accept deposits from,
perform services for or otherwise deal with the Company, or any Affiliates
thereof, with the same rights it would have if it were not Trustee. Any
52
Agent may do the same with like rights. The Trustee, however, shall be subject
to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes or
any recitals therein, it shall not be accountable for the Company's use of the
proceeds from the sale of Notes or any money paid to the Company pursuant to the
terms of this Indenture and it shall not be responsible for any statement in the
Notes other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing
and is known to a Trust Officer of the Trustee, the Trustee shall mail to each
Holder notice of the uncured Default or Event of Default within 5 days after
obtaining knowledge thereof. Except in the case of a Default or an Event of
Default in payment of principal of, make-whole amount, if any, or interest on,
any Note, including an accelerated payment and the failure to make payment on
the Change of Control Payment Date pursuant to a Change of Control Offer or on
the Excess Proceeds Payment Date pursuant to an Asset Sale Offer, and except in
the case of a failure to comply with Article 5 hereof the Trustee may withhold
the notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the best interest of the Holders.
This Section 7.05 shall be in lieu of the proviso to Section 315(b) of the TIA,
and such proviso of Section 315(b) of the TIA is hereby expressly excluded from
this Indenture and the Notes, as permitted by the TIA.
Section 7.06. Reports by Trustee to Holders.
If required by TIA Section 313(a), within 60 days after May 15
of any year, commencing on May 15, 2001, the Trustee shall transmit by mail to
each Holder a brief report dated as of such May 15 that complies with TIA
Section 313(a). The Trustee also shall comply with the reporting requirements of
TIA Sections 313(b), (c) and (d).
A copy of each such report at the time of such mailing to
Holders shall be mailed to the Company and, if the Notes are listed on a stock
exchange, filed with the Commission and each stock exchange on which the Notes
are listed as provided by TIA Section 313(d). The Company shall promptly notify
the Trustee when the Notes are listed on any stock exchange and any delisting
thereof.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation as may from time to time be agreed in writing between the Company
and the Trustee for its services hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust). Except as otherwise provided herein, the Company shall reimburse
the Trustee upon request for all reasonable disbursements, expenses and advances
incurred or made by it in connection with its duties under this Indenture,
including the reasonable compensation, disbursements and expenses of the
Trustee's agents, counsel, custodians and nominees, except for any such
disbursement or expense as may be attributable to the Trustee's negligence, bad
faith or willful misconduct.
53
The Company shall indemnify each of the Trustee and its
officers, directors, employees and agents and any predecessor Trustee and its
officers, directors, employees and agents for, and hold it or them harmless
against, any and all loss, damage, claim, liability or reasonable expense,
including taxes (other than franchise taxes and taxes based on the income of the
Trustee) incurred by it or them in connection with the acceptance or performance
of its duties under this Indenture and any other documents and transactions in
connection therewith including the reasonable costs and expenses of defending
itself against any claim (whether asserted by the Company, or any Holder or any
other Person) or liability in connection with the exercise or performance of any
of its or their powers or duties hereunder (including, without limitation,
settlement costs, provided any settlement with respect to which indemnification
is sought shall have been consented to by the Company). The Trustee shall notify
the Company in writing promptly of any claim asserted against the Trustee for
which it may seek indemnity. However, the failure by the Trustee to so notify
the Company shall not relieve the Company of its obligations hereunder except to
the extent the Company is prejudiced thereby. This Section 7.07 shall survive
the termination of this Indenture and the earlier resignation or removal of the
Trustee.
Notwithstanding the foregoing, the Company need not reimburse
the Trustee for any expense or indemnify it against any loss, damage, claim or
liability incurred by the Trustee through its negligence, bad faith or willful
misconduct. To secure the payment obligations of the Company in this Section
7.07, the Trustee shall have a lien prior to the Notes on all money or property
held or collected by the Trustee except such money or property held in trust to
pay principal of and interest on particular Notes.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(f) or 6.01(g) hereof occurs, the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any Federal or state bankruptcy, insolvency or similar law.
The obligation of the Company under this Section 7.07 shall
survive the resignation or removal of the Trustee and the satisfaction and
discharge of this Indenture.
Section 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company in writing.
The Holders of a majority in principal amount of the then outstanding Notes may
remove the Trustee by notifying the removed Trustee and the Company in writing
and may appoint a successor Trustee with the Company's written consent. The
Company may remove the Trustee at its election if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a receiver or other public officer takes charge or
control of the Trustee or its property or affairs; or
(4) the Trustee otherwise becomes incapable of acting.
54
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
No resignation or removal of the Trustee shall become
effective until the acceptance of appointment by the successor Trustee. If a
successor Trustee does not take office within 30 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holders of a
majority in principal amount of the outstanding Notes may petition any court of
competent jurisdiction at the expense of the Company for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee if the Trustee fails after
written request thereof by such Holder to comply with such Section 7.10.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately following
such delivery, the resignation or removal of the retiring Trustee shall become
effective and the retiring Trustee shall, subject to its rights under Section
7.07 hereof, transfer all property held by it as Trustee to the successor
Trustee, and the successor Trustee, after any and all amounts then due and owing
the Trustee hereunder have been paid in full, shall have all the rights, powers
and duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Holder. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Company's obligations under Section
7.07 hereof shall continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Consolidation, Merger or Conversion.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, subject to Section 7.10 hereof, the successor corporation without
any further act shall be the successor Trustee. In case at the time such
successor or successors by merger, conversion or consolidation to the Trustee
shall succeed to the trusts created by this Indenture any of the Notes shall
have been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor trustee, and deliver
such Notes so authenticated; and in case at that time any of the Notes shall not
have been authenticated, any such successor to the Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Notes or in this Indenture provided that
the certificate of the Trustee shall have.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee which shall be
eligible to act as Trustee under TIA Sections 310(a)(1) and 310(a)(2). The
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. If the Trustee
has or shall acquire any "conflicting interest" within the meaning of TIA
Section 310(b), the Trustee and the Company shall comply with the provisions of
TIA Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met. If at any
55
time the Trustee shall cease to be eligible in accordance with the provisions of
this Section 7.10, the Trustee shall resign immediately in the manner and with
the effect hereinbefore specified in this Article 7.
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
ARTICLE 8
MODIFICATIONS, AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.
The Company, when authorized by a Board Resolution of the
Company, and the Trustee may modify, amend or supplement this Indenture or the
Notes without notice to or consent of any Holder:
(1) to cure any ambiguity, or to correct or supplement any
provision in this Indenture or the Notes or make any other
provisions with respect to matters or questions arising under
this Indenture or the Notes; provided that, in each case, such
provisions shall not adversely affect the interest of the
Holders;
(2) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(3) to provide for the assumption by a successor corporation
of the Company's obligations under this Indenture;
(4) to add guarantees with respect to the Notes;
(5) to secure the Notes;
(6) to add to the covenants of the Company or the Events of
Default for the benefit of Holders;
(7) to surrender any right or power conferred on the
Company; or
(8) to make any other change that does not adversely affect
the rights of any Holder or to comply with any requirement of the
Commission in connection with the qualification of this Indenture
under the Trust Indenture Act.
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Section 8.02. With Consent of Holders.
Subject to Section 6.07 hereof, the Company and the Trustee
may modify, amend or supplement this Indenture or the Notes with the written
consent of the Holders of a majority in principal amount of the then outstanding
Notes (including consents obtained in connection with a tender offer or exchange
offer for, or purchase of, the Notes). Subject to Sections 6.04 and 6.07 hereof,
the Holders of a majority in principal amount of the then outstanding Notes may
waive compliance by the Company with any provision of this Indenture or the
Notes. However, without the consent of each Holder affected (including consents
obtained in connection with a tender offer or exchange offer for, or purchase
of, the Notes), a modification, amendment, supplement or waiver, including a
waiver pursuant to Section 6.04 hereof, may not:
(1) change the Stated Maturity of the principal of, or
any installment of interest on, such Note or alter the optional
redemption provisions thereof;
(2) reduce the principal amount of, or make-whole amount, if
any, or interest on, such Note or extend the time of payments under
the Notes;
(3) modify the ranking of the Notes in a manner adverse to the
Holder;
(4) change the place or currency of payment of principal of,
or make-whole amount, if any, or interest on, such Note;
(5) alter the provisions with respect to the obligation of the
Company to make a Change of Control Offer in accordance with Section
4.15 hereof or to make an Asset Sale Offer in accordance with Section
4.12 hereof;
(6) impair the right to institute suit for the enforcement of
any payment on or with respect to such Note; or
(7) reduce the percentage in principal amount of outstanding
Notes, the consent of whose Holders is required for modification or
amendment of this Indenture or for waiver of compliance with certain
provisions of this Indenture or for waiver of certain Defaults or
Events of Default.
After an amendment, supplement or waiver under this Section
8.02 becomes effective, the Company shall mail to the Holders a notice briefly
describing the amendment, supplement or waiver. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture.
Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the receipt by the Trustee of evidence reasonably satisfactory to the
Trustee of the consent of the Holders as aforesaid and upon receipt by the
Trustee of the documents described in Section 8.06 hereof, the Trustee shall
join with the Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture, in which case the Trustee may in its own
discretion, but shall not be obligated to, enter into such supplemental
indenture.
57
It shall not be necessary for the consent of the Holders under
this Section 8.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
Section 8.03. Compliance with TIA.
Every amendment to or supplement of this Indenture or the
Notes shall comply with the TIA as then in effect.
Section 8.04. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. Subject to the following paragraph, any such Holder or subsequent Holder
may revoke the consent as to such Holder's Note or portion of such Note by
notice to the Trustee or the Company received before the date on which the
Trustee receives an Officers' Certificate certifying that the Holders of the
requisite principal amount of Notes have consented (and not theretofore revoked
such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a Record
Date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver. If a Record Date is fixed, then notwithstanding
the last sentence of the immediately preceding paragraph, those Persons who were
Holders at such Record Date (or their duly designated proxies), and only those
Persons, shall be entitled to revoke any consent previously given, whether or
not such Persons shall continue to be Holders after such Record Date. No such
consent shall be valid or effective for more than 90 days after such Record
Date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder, unless it makes a change described in any of clauses
(1) through (7) of Section 8.02 hereof, in which case, the amendment, supplement
or waiver shall bind only each Holder of a Note who has consented to it and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note; provided that any such waiver shall not
impair or affect the right of any Holder to receive payment of principal of and
interest on a Note, on or after the respective due dates expressed in such Note,
or to bring suit for the enforcement of any such payment on or after such
respective dates without the consent of such Holder.
Section 8.05. Notation on or Exchange of Notes.
If an amendment, supplement, or waiver changes the terms of a
Note, the Trustee may request the Holder to deliver it to the Trustee. In such
case, the Trustee shall place an appropriate notation on the Note about the
changed terms and return it to the Holder. Alternatively, if the Company or the
Trustee so determine, in exchange for the Note the Company shall issue and the
Trustee shall authenticate a new Note that reflects the changed terms. Failure
to make the appropriate notation or issue a new Note shall not affect the
validity and effect of such amendment, supplement or waiver.
58
Section 8.06. Trustee To Sign Amendments, etc.
The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that the execution of any amendment, supplement or waiver authorized
pursuant to this Article 8 is authorized or permitted by this Indenture and that
such amendment, supplement or waiver constitutes the legal, valid and binding
obligation of the Company, enforceable in accordance with its terms (subject to
customary exceptions). The Trustee may, but shall not be obligated to, execute
any such amendment, supplement or waiver which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Satisfaction and Discharge of Indenture.
This Indenture shall be discharged and shall cease to be of
further effect (except those obligations referred to in the penultimate
paragraph of this Section 9.01) and the Trustee, on written demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when either:
(a) all Notes theretofore authenticated and delivered (other
than (i) Notes which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.07 hereof and (ii) Notes
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust) have been delivered to the
Trustee for cancellation; or
(b) (i) either (A) pursuant to Article 3 hereof, the Company
shall have given notice to the Trustee and mailed a notice of
redemption to each Holder of the redemption of all of the Notes under
arrangements satisfactory to the Trustee for the giving of such notice
or (B) all Notes not theretofore delivered to the Trustee for
cancellation have become due and payable; (ii) the Company has
irrevocably deposited or caused to be deposited with the Trustee in
trust for the purpose an amount in U.S. legal tender sufficient to pay
and discharge the entire Indebtedness on such Notes not theretofore
delivered to the Trustee for cancellation, for the principal of,
make-whole amount, if any, and interest to the date of such deposit;
(iii) no Default or Event of Default with respect to this Indenture or
the Notes shall have occurred and be continuing on the date of such
deposit or shall occur as a result of such deposit and such deposit
will not result in a breach or violation of, or constitute a default
under, any other material instrument to which the Company is a party or
by which it is bound (other than a Default or Event of Default
resulting from the incurrence of Indebtedness, all or a portion of
which will be used to defease the Notes concurrently with such
incurrence); (iv) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and (v) the Company has
delivered to the Trustee (A) irrevocable instructions to apply the
deposited money toward payment of the Notes at the Stated Maturity
thereof, and (B) an Officers' Certificate and an Opinion of Counsel
each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been complied
59
with and that such satisfaction and discharge does not result in a
default under any material agreement or instrument then known to such
counsel which binds or affects the Company.
Notwithstanding the foregoing paragraph, the Company's
obligations in Article 2 and Sections 4.01, 4.07, 7.07 and 8.06 hereof shall
survive until the Notes are no longer outstanding pursuant to the last paragraph
of Section 2.08 hereof. After the Notes are no longer outstanding pursuant to
Section 2.08 hereof, the Company's obligations under Section 7.07 and 8.06 shall
survive.
After such delivery or irrevocable deposit, the Trustee upon
request shall acknowledge in writing the discharge of the Company's obligations
under the Notes and this Indenture except for those surviving obligations
specified above.
Section 9.02. Legal Defeasance.
(a) The Company may, at its option by a Board Resolution of
the Board of Directors of the Company, at any time, elect to have this Section
9.02 be applied to all outstanding Notes upon compliance with the conditions set
forth in Section 9.04 hereof.
(b) Upon the Company's exercise under paragraph (a) hereof of
the option applicable to this paragraph (b), the Company shall, subject to the
satisfaction of the conditions set forth in Section 9.04 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding Notes
on the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 9.05 hereof and the other Sections of this Indenture
referred to in clauses (i) and (ii) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions, which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of outstanding Notes to receive, solely from the trust fund described in
Section 9.05 hereof and as more fully set forth in such Section, payments in
respect of the principal of, make-whole amount, if any, and interest on such
Notes when such payments are due on the Stated Maturity thereof (or, upon
redemption, if applicable), (ii) the Company's obligations with respect to such
Notes under Article 2 and Section 4.07 hereof, (iii) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and the Company's obligations in
connection therewith and (iv) this Article 9. Subject to compliance with this
Article 9, the Company may exercise its option under this Section 9.02
notwithstanding the prior exercise of its option under Section 9.03 below with
respect to the Notes.
Section 9.03. Covenant Defeasance.
(a) The Company may, at its option by a Board Resolution of
the Board of Directors of the Company, at any time, elect to have this Section
9.03 be applied to all outstanding Notes upon compliance with the conditions set
forth in Section 9.04 hereof.
(b) Upon the Company's exercise under paragraph (a) hereof of
the option applicable to this paragraph (b), the Company shall, subject to the
satisfaction of the conditions set forth in Section 9.04 hereof, be released
from its obligations under the covenants contained in Sections 4.05, 4.08 and
4.09 through 4.17, inclusive, and Article 5 hereof with respect to the
outstanding Notes
60
on and after the date the conditions set forth below are satisfied (hereinafter,
"Covenant Defeasance"), and the Notes shall thereafter be deemed not
"outstanding" for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all other purposes
hereunder. For this purpose, such Covenant Defeasance means that, with respect
to the outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event or Default under Section
6.01(c) or 6.01(d) hereof, but, except as specified above, the remainder of this
Indenture, and such Notes shall be unaffected thereby. In addition, upon the
Company's exercise under paragraph (a) hereof of the option applicable to this
paragraph (b), subject to the satisfaction of the conditions set forth in
Section 9.04 hereof, Sections 6.01(c), 6.01(d) and 6.01(e) shall not constitute
Events of Default.
Section 9.04. Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of
either Section 9.02 or 9.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit or cause to be
deposited with the Trustee, as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders, cash in U.S. dollars, or U.S. Government Obligations, or in
the case of Covenant Defeasance, corporate obligations rated at least
"A" by Standard & Poor's Ratings Group or at least "A" by Xxxxx'x
Investors Service, Inc. or a combination thereof, in such amounts as
will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay and discharge the principal of,
make-whole amount, if any, and interest on the outstanding Notes on the
Stated Maturity thereof (or upon redemption, if applicable) of such
principal, make-whole amount, if any, or installment of interest;
(b) no Default or Event of Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit or,
insofar as an event of bankruptcy under clauses (f) or (g) of Section
6.01 hereof is concerned, at any time during the period ending on the
91st day after the date of such deposit;
(c) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, this
Indenture or any material agreement or instrument to which the Company
is a party or by which it is bound;
(d) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling, or since the Issue Date, there has been a change in
applicable federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the Holders of the
outstanding Notes of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
defeasance had not occurred; and
61
(e) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of outstanding Notes of such series will not recognize income,
gain or loss for federal income tax purposes as a result of such
defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred; and
(f) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the Legal
Defeasance or the Covenant Defeasance, as the case may be, have been
complied with.
Section 9.05. Application of Trust Money.
All money and U.S. Government Obligations deposited with the
Trustee pursuant to Section 9.01 or 9.04 hereof in respect of the outstanding
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent as the Trustee may determine, to the Holders of such
Notes, of all sums due and to become due thereon in respect of principal,
make-whole amount, if any, and accrued interest, but such money need not be
segregated from other funds except to the extent required by law.
Anything in this Article 9 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon a written
request of the Company in the form of an Officers' Certificate any money or U.S.
Government Obligations held by it as provided in Section 9.01 or 9.04 hereof
which, in the opinion of a nationally-recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 9.06. Repayment to the Company.
Subject to Sections 9.01, 9.,02, 9.03, 9.04, 9.05 and 9.07,
the Trustee and the Paying Agent shall promptly pay to the Company upon request
any excess U.S. legal tender or U.S. Government Obligations held by them at any
time and thereupon shall be relieved from all liability with respect to such
money. The Trustee and the Paying Agent shall pay to the Company upon request
any money held by them for the payment of principal, make-whole amount, if any,
or interest that remains unclaimed for two years; provided that the Trustee or
such Paying Agent, before being required to make any payment, may at the expense
of the Company cause to be published once in a newspaper of general circulation
in the City of New York or mail to each Holder entitled to such money notice
that such money remains unclaimed, and that after a date specified therein which
shall be at least 30 days from the date of such publication or mailing, any
unclaimed balance of such money then remaining will be repaid to the Company.
After payment to the Company, Holders entitled to such money must look to the
Company for payment as general creditors unless an applicable law designates
another Person.
62
Section 9.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Section 9.01, 9.02 or 9.03 hereof
by reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article 9 until such time as the Trustee or Paying Agent is permitted to
apply all such money and U.S. Government Obligations in accordance with Section
9.01 hereof; provided, however, that if the Company has made any payment of
principal of, make-whole amount, if any, or accrued interest on any Notes
because of the reinstatement of their obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money and U.S. Government Obligations held by the Trustee or Paying
Agent.
ARTICLE 10
[INTENTIONALLY OMITTED]
ARTICLE 11
MISCELLANEOUS
Section 11.01. TIA Controls.
If any provision of this Indenture limits, qualifies or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
Section 11.02. Notices.
Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, by telecopier or registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
If to the Company:
HEALTHSOUTH Corporation
Xxx XxxxxxXxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
63
If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust Trustee Administration
The Company or the Trustee by written notice to the others may
designate additional or different addresses for subsequent notices or
communications. Any notice or communication to the Company or the Trustee, shall
be deemed to have been given or made when actually received.
Any notice or communication mailed to a Holder shall be mailed
by first-class mail, postage prepaid, at the address shown on the register kept
by the Registrar.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders. If
a notice or communication to a Holder is mailed in the manner provided above, it
shall be deemed duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service,
or by reason of any other cause, it shall be impossible to mail any notice as
required by this Indenture, then such method of notification as shall be made
with the approval of the Trustee shall constitute a sufficient mailing of such
notice.
Section 11.03. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
Section 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 11.05 hereof) stating that, in the
opinion of the signers, all conditions precedent, if any, provided for
in this Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel (which shall include the statements
set forth in Section 11.05 hereof) stating that, in the opinion of
such counsel, all such conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied
with.
64
Section 11.05. Statements Required in Certificate and Opinion.
Each certificate and opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition and the definitions
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, it or he
has made such examination or investigation as is reasonably necessary
to enable such person to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
person, such covenant or condition has been complied with; provided,
however, that with respect to matters of fact, an Opinion of Counsel
may rely on an Officers' Certificate or certificates of public
officials.
Section 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at
meetings of Holders. The Registrar and Paying Agent may make reasonable rules
for their functions.
Section 11.07. Business Days; Legal Holidays.
A "Business Day" is a day that is not a Legal Holiday. A
"Legal Holiday" is a Saturday, a Sunday, a federally-recognized holiday or a day
on which banking institutions are not required to be open in the State of New
York. If a payment date is a Legal Holiday at a place of payment, payment may be
made at that place on the next succeeding day that is not a Legal Holiday, and
no interest shall accrue for the intervening period.
Section 11.08. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
Section 11.09. Waiver of Trial by Jury.
The Company hereby irrevocably waives any and all rights to
trial by jury in any legal proceeding arising out of or relating to this
Indenture.
65
Section 11.10. Submission to Jurisdiction.
The Company hereby consents to the non-exclusive jurisdiction
of a state or federal court situated in New York City, New York in connection
with any dispute arising hereunder or under the Notes. The Company hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
objection which it may now or hereafter have to the laying of venue of any such
proceeding brought in such a court and any claim that such proceeding brought in
such a court has been brought in an inconvenient forum.
Section 11.11. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan, security or debt agreement of the Company or any Subsidiary thereof. No
such indenture, loan, security or debt agreement may be used to interpret this
Indenture.
Section 11.12. No Recourse Against Others.
No incorporator, director, officer, employee, stockholder or
controlling person, as such, of the Company shall have any liability for any
obligations of the Company under the Notes or this Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By
accepting a Note, each Holder shall waive and release all such liability. The
waiver and release shall be part of the consideration for the issue of the
Notes.
Section 11.13. Successors.
All agreements of each of the Company in this Indenture and
the Notes shall bind their respective successors. All agreements of the Trustee,
any additional trustee and any Paying Agents in this Indenture shall bind its
successor.
Section 11.14. Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture.
Each signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
Section 11.15. Table of Contents, Headings, etc.
The table of contents, cross-reference sheet and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 11.16. Separability.
Each provision of this Indenture shall be considered separable
and if for any reason any provision shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby to the extent allowed by law.
66
Section 11.17. Translation.
The original and controlling version of this Indenture and any
related agreements shall be the English language version. All translations of
this Indenture or any agreements related hereto into other languages shall be
for the convenience of the parties only, and shall not control the meaning or
application of this Indenture. All notices and other communications required or
permitted by this Indenture or any other transactional agreement must be in
English or accompanied by an English translation, and the interpretation and
application of such notices and other communications shall be based solely upon
the English language version thereof.
67
IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed all as of the date and year first written above.
Company:
HEALTHSOUTH CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
Trustee:
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Assistant Vice President
EXHIBIT A
[FORM OF SERIES A NOTE]
CUSIP No.:
HEALTHSOUTH CORPORATION
8 1/2% SENIOR NOTE DUE 2008
No. $
HEALTHSOUTH CORPORATION, a corporation incorporated in
Delaware (the "Company," which term includes any successor entity), for value
received promises to pay to or registered assigns, the principal sum of $ on
February 1, 2008.
Interest Payment Dates: February 1 and August 1, commencing
August 1, 2001.
Record Dates: January 15 and July 15.
Reference is made to the further provisions of this Note
contained herein and the Indenture (as defined), which will for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized directors, officers or
other authorized signatories.
HEALTHSOUTH CORPORATION
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
Date: February 1, 2001
This is one of the 8 1/2% Senior Notes due 2008 referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
---------------------------------------
Authorized Signatory
A-2
(REVERSE OF SECURITY)
8 1/2% SENIOR NOTE DUE 2008
1. Interest. HEALTHSOUTH CORPORATION, a corporation
incorporated in Delaware (the "Company"), promises to pay interest on the
principal amount of this Note at the rate per annum shown above. Interest on the
Notes will accrue from the most recent date on which interest has been paid or
duly provided for, or if no interest has been paid, from the date of the
original issuance of the Notes. The Company will pay interest semi-annually in
arrears on each Interest Payment Date, commencing August 1, 2001. Interest will
be computed on the basis of a 360-day year comprised of twelve 30-day months.
The Company shall pay interest on overdue principal and on
overdue installments of interest (without regard to any applicable grace
periods) to the extent lawful from time to time on demand at the rate borne by
the Notes.
2. Method of Payment. The Company shall pay interest on the
Notes (except defaulted interest) to the Persons who are the registered Holders
at the close of business on January 15 or July 15 immediately preceding the
Interest Payment Date (whether or not such day is a Business Day) even if the
Notes are canceled on registration of transfer or registration of exchange after
such Record Date. Holders must surrender Notes to a Paying Agent to collect
principal payments. Payments of principal and make-whole amount, if any, will be
made (on presentation of such Notes if in certificated form) in U.S. legal
tender; provided, however, that the Company may pay principal, make-whole
amount, if any, and interest by check payable in U.S. legal tender. The Company
may deliver any such interest payment by check mailed to the address of the
Person entitled thereto as such address will appear on the security register.
3. Paying Agents and Registrar. Initially, The Bank of New
York, a banking organization organized under the laws of New York (the
"Trustee"), will act as Paying Agent and the Trustee will act as Registrar. The
Company may change any Paying Agents, Registrar or co-Registrar without notice
to the Holders. Neither the Company nor any of its Subsidiaries or Affiliates
may act as Paying Agent but may act as Registrar or co-Registrar.
4. Indenture. The Company issued this Note under an Indenture,
dated as of February 1, 2001 (the "Indenture"), by and among the Company and the
Trustee. This Note is one of a duly authorized issue of Initial Notes of the
Company designated as its 8 1/2% Senior Notes due 2008 (the "Notes"). The Notes
include the Initial Notes and the Exchange Notes issued pursuant to the
Indenture. The Initial Notes and the Exchange Notes are treated as a single
class of securities under the Indenture. Capitalized terms herein are used as
defined in the Indenture unless otherwise defined herein. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S. Code xx.xx. 77aaa-77bbbb)
(the "TIA"), as in effect on the date of the Indenture. Notwithstanding anything
to the contrary herein, the Notes are subject to all such terms, and Holders of
Notes are referred to the Indenture and the TIA for a statement of them. The
Notes are general unsecured obligations of the Company.
A-3
5. [Intentionally Omitted.]
6. Redemption.
The Notes will be redeemable, in whole or in part, at the
option of the Company at any time at a redemption price equal to the greater of
(i) 100% of the principal amount of the Notes, plus accrued interest thereon to
the date of redemption and (ii) as determined by a Quotation Agent (as defined
below), the sum of the present values of the remaining scheduled payments of
principal and interest thereon discounted, to the redemption date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Adjusted Treasury Rate, plus accrued interest on the Notes to the date of
redemption. If a redemption date does not fall on an interest payment date,
then, with respect to the interest payment immediately succeeding the redemption
date, only the unaccrued portion of such interest payment as of the redemption
date shall be included in any calculation pursuant to clause (ii) above. Any
amount payable in excess of 100% of the principal amount of the Notes (other
than accrued interest thereon) shall be referred to herein as the "make-whole
amount."
"Adjusted Treasury Rate" means, with respect to any redemption
date, the rate per annum equal to the semi-annual equivalent yield to maturity
of the Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of the principal amount) equal to the
Comparable Treasury Price for such redemption date, plus 0.50%.
"Comparable Treasury Issue" means the United States Treasury
security selected by a Quotation Agent as having a maturity comparable to the
remaining term of the Notes to be redeemed that would be utilized, at the time
of selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of such Notes.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the Reference Treasury Dealer Quotations for
such redemption date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (ii) if the Trustee obtains three or fewer such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Quotation Agent" means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means (i) each of UBS Warburg LLC,
Deutsche Banc Alex. Xxxxx Inc. and Chase Securities Inc. and their respective
successors; provided, however, that if any of the foregoing shall cease to be a
primary U.S. Government securities dealer in New York, New York (a "Primary
Treasury Dealer"), the Company shall substitute therefor another Primary
Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the
Trustee after consultation with the Company.
"Reference Treasury Dealer Quotation" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
on the third business day preceding such redemption date.
A-4
If less than all of the Notes are to be redeemed at any time,
selection of the Notes to be redeemed will be made by the Trustee from among the
outstanding Notes on a pro rata basis, by lot or by any other method permitted
in the Indenture. On and after the redemption date, interest will cease to
accrue on the Notes or portions thereof called for redemption.
The Notes will not be entitled to any sinking fund.
7. Notice of Redemption. Notice of redemption under paragraph
6 of this Note will be mailed at least 30 days but not more than 60 days before
the Redemption Date to each Holder of Notes to be redeemed at such Holder's
registered address.
Except as set forth in the Indenture, if monies for the
redemption of the Notes called for redemption shall have been deposited with the
Paying Agent for redemption on such Redemption Date, then the Notes called for
redemption will cease to bear interest from and after such Redemption Date and
the only right of the Holders of such Notes will be to receive payment of the
Redemption Price plus interest accrued through the Redemption Date, if any.
8. Offers to Purchase. The Indenture provides that, after
certain Asset Sales (as defined in the Indenture) and upon the occurrence of a
Change of Control (as defined in the Indenture), and subject to further
limitations contained therein, the Company will make an offer to purchase
certain amounts of the Notes in accordance with the procedures set forth in the
Indenture.
9. Registration Rights. Pursuant to the Registration Rights
Agreement by and between the Company and the Initial Purchasers, the Company
will be obligated to consummate an exchange offer pursuant to which the Holder
of this Note shall have the right to exchange this Note for the Company's Series
B 8 1/2% Senior Notes due 2008 (the "Exchange Notes"), at such time as the
Exchange Notes shall have been registered under the Securities Act, in like
principal amount and having terms identical in all material respects to the
Initial Notes. The Holders of the Initial Notes shall be entitled to receive
certain Additional Interest payments in the event such exchange offer is not
consummated and upon certain other conditions, all pursuant to and in accordance
with the terms of the Registration Rights Agreement.
10. Denominations; Transfer; Exchange. The Notes are in
definitive, fully registered form, without coupons, in minimum denominations of
[$1,000] [$250,000] and in integral multiples [of $1,000 in excess] thereof. A
Holder shall register the transfer or exchange of Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange of any Notes or portions thereof selected for redemption.
11. Persons Deemed Owners. The registered Holder of a Note
shall be treated as the owner of such Note for all
purposes.
12. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company. After that, Holders entitled to money must
look to the Company for payment as general creditors unless an "abandoned
property" law designates another person.
A-5
13. Legal Defeasance and Covenant Defeasance. If the Company
at any time deposits with the Trustee U.S. legal tender or other obligations of
the types set forth in the Indenture sufficient to pay the principal of and
interest on the Notes to Stated Maturity or redemption, if applicable, and
complies with the other provisions of the Indenture relating to Legal Defeasance
or Covenant Defeasance, the Company will be discharged from certain provisions
of the Indenture and the Notes (including certain covenants, but excluding its
obligation to pay the principal of and interest on the Notes).
14. Amendments, Supplements, and Waivers. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate outstanding
principal amounts of the Notes, and any existing Default or Event of Default or
noncompliance with any provision may be waived with the written consent of the
Holders of a majority in aggregate principal amount of the Notes then
outstanding. Without notice to or consent of any Holder, the parties thereto may
amend or supplement the Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency or make any other change that does not
adversely affect in any material respect the rights of any Holder of a Note.
15. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to, among other
things, make payments in respect of its Capital Stock, incur additional
Indebtedness, make certain investments, sell assets, enter into transactions
with Affiliates, create Liens, merge or consolidate with or into any other
Person or sell, lease, convey or otherwise dispose of all or substantially all
of its assets or create dividend or other payment restrictions affecting
Subsidiaries of the Company. Such limitations are subject to a number of
important qualifications and exceptions. The Company must report on an annual
basis to the Trustee on compliance with such limitations.
16. Successor. When a Successor assumes, in accordance with
the Indenture, all the obligations of its predecessor under the Notes and the
Indenture, and immediately before and thereafter no Default exists and certain
other conditions are satisfied, the predecessor entity will be released from
those obligations.
17. Defaults and Remedies. Events of Default are set forth in
the Indenture. If an Event of Default (other than an Event of Default with
respect to the Company pursuant to Section 6.01(f) or 6.01(g) of the Indenture)
shall have occurred and be continuing, then the Trustee by written notice to the
Company or the Holders of not less than 25% in aggregate principal amount of the
Notes then outstanding may declare to be immediately due and payable the entire
principal amount of all the Notes then outstanding plus accrued interest to the
date of acceleration; provided, however, that after such acceleration but before
a judgment or decree based on such acceleration is obtained by the Trustee, the
Holders of a majority in aggregate principal amount of the outstanding Notes by
written notice to the Company and the Trustee may rescind and annul such
acceleration and its consequences if all existing Events of Default, other than
the nonpayment of principal, make-whole amount, if any, or interest that has
become due solely because of the acceleration, have been cured or waived. No
such rescission shall affect any subsequent Default or impair any right
consequent thereto. In case an Event of Default with respect to the Company
specified in Section 6.01(f) or 6.01(g) of the Indenture occurs, such principal
amount, together with make-whole amount, if any, and interest with respect to
all of the Notes, shall be due and payable immediately without any declaration
or other act on the part of the Trustee or the Holders of the Notes.
A-6
18. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company, and may otherwise deal with
the Company, its Subsidiaries or their respective Affiliates as if it were not
the Trustee.
19. No Recourse Against Others. No incorporator, director,
officer, employee, stockholder or controlling person, as such, of the Company
shall have any liability for any obligations of the Company under the Notes or
the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Note, each Holder shall waive and
release all such liability. The waiver and release shall be part of the
consideration for the issue of the Notes.
20. Authentication. This Note shall not be valid until the
Trustee or Authenticating Agent manually signs the certificate of authentication
on this Note.
21. Multiple Counterparts. The parties may sign multiple
counterparts of this Note. Each signed counterpart shall be deemed an original
but all of them together represent one and the same Note.
22. Governing Law. THIS NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES TO THE INDENTURE HAS AGREED
TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE.
23. Abbreviations and Defined Terms. Customary abbreviations
may be used in the name of a Holder of a Note or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
24. CUSIP Numbers. The Company has caused CUSIP numbers to be
printed on the Notes as a convenience to the Holders. No representation is made
as to the accuracy of such numbers as printed on the Notes and reliance may be
placed only on the other identification numbers printed hereon.
25. Indenture. Each Holder, by accepting a Note, agrees to be
bound by all of the terms and provisions of the Indenture, as the same may be
amended from time to time.
The Company will furnish to any Holder of a Note upon written
request and without charge a copy of the Indenture which has the text of this
Note in larger type. Requests may be made to: HEALTHSOUTH Corporation, Xxx
XxxxxxXxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Telephone No. (000) 000-0000,
Facsimile No. (000) 000-0000, Attention: Xxxxxxx X. Xxxxxx.
A-7
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint _______________________________________________________,
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date: Signed:
----------------------------- -----------------------------
(Sign exactly as your name
appears on the other
side of this Note)
Medallion Guarantee:
-----------------------------
A-8
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.12 or Section 4.15 of the Indenture, check the
appropriate box:
Section 4.12 |_|
Section 4.15 |_|
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.12 or Section 4.15 of the Indenture, state
the amount you elect to have purchased:
$ ------------------------
Date:
----------------------------- --------------------------------------
NOTICE: The signature on
this assignment must
correspond with the name as
it appears upon the face of
the within Note in every
particular without
alteration or enlargement
or any change whatsoever
and be guaranteed by the
endorser's bank or broker.
Medallion Guarantee:
-----------------------------
A-9
EXHIBIT B
[FORM OF SERIES B NOTE]
CUSIP No.:
HEALTHSOUTH CORPORATION
8 1/2% SENIOR NOTE DUE 2008
No. $
HEALTHSOUTH CORPORATION, a corporation incorporated in
Delaware (the "Company," which term includes any successor entity), for value
received promises to pay to or registered assigns, the principal sum of $ on
February 1, 2008.
Interest Payment Dates: February 1 and August 1, commencing
August 1, 2001.
Record Dates: January 15 and July 15.
Reference is made to the further provisions of this Note
contained herein and the Indenture (as defined), which will for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized directors, officers or
other authorized signatories.
HEALTHSOUTH CORPORATION
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
Date:
This is one of the 8 1/2% Senior Notes due 2008 referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
----------------------
Authorized Signatory
B-2
(REVERSE OF SECURITY)
8 1/2% SENIOR NOTE DUE 2008
1 Interest. HEALTHSOUTH CORPORATION, a corporation
incorporated in Delaware (the "Company"), promises to pay interest on the
principal amount of this Note at the rate per annum shown above. Interest on the
Notes will accrue from the most recent date on which interest has been paid or
duly provided for, or if no interest has been paid, from the date of the
original issuance of the Notes. The Company will pay interest semi-annually in
arrears on each Interest Payment Date, commencing August 1, 2001. Interest will
be computed on the basis of a 360-day year comprised of twelve 30-day months.
The Company shall pay interest on overdue principal and on
overdue installments of interest (without regard to any applicable grace
periods) to the extent lawful from time to time on demand at the rate borne by
the Notes.
2. Method of Payment. The Company shall pay interest on the
Notes (except defaulted interest) to the Persons who are the registered Holders
at the close of business on January 15 or July 15 immediately preceding the
Interest Payment Date (whether or not such day is a Business Day) even if the
Notes are canceled on registration of transfer or registration of exchange after
such Record Date. Holders must surrender Notes to a Paying Agent to collect
principal payments. Payments of principal and make-whole amount, if any, will be
made (on presentation of such Notes if in certificated form) in U.S. legal
tender; provided, however, that the Company may pay principal, make-whole
amount, if any, and interest by check payable in U.S. legal tender. The Company
may deliver any such interest payment by check mailed to the address of the
Person entitled thereto as such address will appear on the security register.
3. Paying Agents and Registrar. Initially, The Bank of New
York, a banking organization organized under the laws of New York (the
"Trustee"), will act as Paying Agent and the Trustee will act as Registrar. The
Company may change any Paying Agents, Registrar or co-Registrar without notice
to the Holders. Neither the Company nor any of its Subsidiaries or Affiliates
may act as Paying Agent but may act as Registrar or co-Registrar.
4. Indenture. The Company issued this Note under an Indenture,
dated as of February 1, 2001 (the "Indenture"), by and among the Company and the
Trustee. This Note is one of a duly authorized issue of Exchange Notes of the
Company designated as its 8 1/2% Senior Notes due 2008 (the "Notes"). The Notes
include the Initial Notes and the Exchange Notes issued pursuant to the
Indenture. The Initial Notes and the Exchange Notes are treated as a single
class of securities under the Indenture. Capitalized terms herein are used as
defined in the Indenture unless otherwise defined herein. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S. Code xx.xx. 77aaa-77bbbb)
(the "TIA"), as in effect on the date of the Indenture. Notwithstanding anything
to the contrary herein, the Notes are subject to all such terms, and Holders of
Notes are referred to the Indenture and the TIA for a statement of them. The
Notes are general unsecured obligations of the Company.
5. [Intentionally Omitted.]
B-3
6. Redemption.
The Notes will be redeemable, in whole or in part, at the
option of the Company at any time at a redemption price equal to the greater of
(i) 100% of the principal amount of the Notes, plus accrued interest thereon to
the date of redemption and (ii) as determined by a Quotation Agent (as defined
below), the sum of the present values of the remaining scheduled payments of
principal and interest thereon discounted to the redemption date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Adjusted Treasury Rate, plus accrued interest on the Notes to the date of
redemption. If a redemption date does not fall on an interest payment date,
then, with respect to the interest payment immediately succeeding the redemption
date, only the unaccrued portion of such interest payment as of the redemption
date shall be included in any calculation pursuant to clause (ii) above. Any
amount payable in excess of 100% of the principal amount of the Notes (other
than accrued interest thereon) shall be referred to herein as the "make-whole
amount."
"Adjusted Treasury Rate" means, with respect to any redemption
date, the rate per annum equal to the semi-annual equivalent yield to maturity
of the Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of the principal amount) equal to the
Comparable Treasury Price for such redemption date, plus 0.50%.
"Comparable Treasury Issue" means the United States Treasury
security selected by a Quotation Agent as having a maturity comparable to the
remaining term of the Notes to be redeemed that would be utilized, at the time
of selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of such Notes.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the Reference Treasury Dealer Quotations for
such redemption date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (ii) if the Trustee obtains three or fewer such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Quotation Agent" means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means (i) each of UBS Warburg LLC,
Deutsche Banc Alex. Xxxxx Inc. and Chase Securities Inc. and their respective
successors; provided, however, that if any of the foregoing shall cease to be a
primary U.S. Government securities dealer in New York, New York (a "Primary
Treasury Dealer"), the Company shall substitute therefor another Primary
Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the
Trustee after consultation with the Company.
"Reference Treasury Dealer Quotation" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
on the third business day preceding such redemption date.
If less than all of the Notes are to be redeemed at any time,
selection of the Notes to be redeemed will be made by the Trustee from among the
outstanding Notes on a pro rata basis, by lot or
B-4
by any other method permitted in the Indenture. On and after the redemption
date, interest will cease to accrue on the Notes or portions thereof called for
redemption.
The Notes will not be entitled to any sinking fund.
7. Notice of Redemption. Notice of redemption under paragraph
6 of this Note will be mailed at least 30 days but not more than 60 days before
the Redemption Date to each Holder of Notes to be redeemed at such Holder's
registered address.
Except as set forth in the Indenture, if monies for the
redemption of the Notes called for redemption shall have been deposited with the
Paying Agent for redemption on such Redemption Date, then the Notes called for
redemption will cease to bear interest from and after such Redemption Date and
the only right of the Holders of such Notes will be to receive payment of the
Redemption Price plus interest accrued through the Redemption Date, if any.
8. Offers to Purchase. The Indenture provides that, after
certain Asset Sales (as defined in the Indenture) and upon the occurrence of a
Change of Control (as defined in the Indenture), and subject to further
limitations contained therein, the Company will make an offer to purchase
certain amounts of the Notes in accordance with the procedures set forth in the
Indenture.
9. Denominations; Transfer; Exchange. The Notes are in
definitive, fully registered form, without coupons, in minimum denominations of
[$1,000] [$250,000] and in integral multiples [of $1,000 in excess] thereof. A
Holder shall register the transfer or exchange of Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange of any Notes or portions thereof selected for redemption.
10. Persons Deemed Owners. The registered Holder of a Note
shall be treated as the owner of such Note for all purposes.
11. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company. After that, Holders entitled to money must
look to the Company for payment as general creditors unless an "abandoned
property" law designates another person.
12. Legal Defeasance and Covenant Defeasance. If the Company
at any time deposits with the Trustee U.S. legal tender or other obligations of
the types set forth in the Indenture sufficient to pay the principal of and
interest on the Notes to Stated Maturity or redemption, if applicable, and
complies with the other provisions of the Indenture relating to Legal Defeasance
or Covenant Defeasance, the Company will be discharged from certain provisions
of the Indenture and the Notes (including certain covenants, but excluding its
obligation to pay the principal of and interest on the Notes).
13. Amendments, Supplements, and Waivers. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
written consent of the
B-5
Holders of at least a majority in aggregate outstanding principal amounts of the
Notes, and any existing Default or Event of Default or noncompliance with any
provision may be waived with the written consent of the Holders of a majority in
aggregate principal amount of the Notes then outstanding. Without notice to or
consent of any Holder, the parties thereto may amend or supplement the Indenture
or the Notes to, among other things, cure any ambiguity, defect or inconsistency
or make any other change that does not adversely affect in any material respect
the rights of any Holder of a Note.
14. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to, among other
things, make payments in respect of its Capital Stock, incur additional
Indebtedness, make certain investments, sell assets, enter into transactions
with Affiliates, create Liens, merge or consolidate with or into any other
Person or sell, lease, convey or otherwise dispose of all or substantially all
of its assets or create dividend or other payment restrictions affecting
Subsidiaries of the Company. Such limitations are subject to a number of
important qualifications and exceptions. The Company must report on an annual
basis to the Trustee on compliance with such limitations.
15. Successor. When a Successor assumes, in accordance with
the Indenture, all the obligations of its predecessor under the Notes and the
Indenture, and immediately before and thereafter no Default exists and certain
other conditions are satisfied, the predecessor entity will be released from
those obligations.
16. Defaults and Remedies. Events of Default are set forth in
the Indenture. If an Event of Default (other than an Event of Default with
respect to the Company pursuant to Section 6.01(f) or 6.01(g) of the Indenture)
shall have occurred and be continuing, then the Trustee by written notice to the
Company or the Holders of not less than 25% in aggregate principal amount of the
Notes then outstanding may declare to be immediately due and payable the entire
principal amount of all the Notes then outstanding plus accrued interest to the
date of acceleration; provided, however, that after such acceleration but before
a judgment or decree based on such acceleration is obtained by the Trustee, the
Holders of a majority in aggregate principal amount of the outstanding Notes by
written notice to the Company and the Trustee may by written notice to the
Company and the Trustee rescind and annul such acceleration and its consequences
if all existing Events of Default, other than the nonpayment of principal,
make-whole amount, if any, or interest that has become due solely because of the
acceleration, have been cured or waived. No such rescission shall affect any
subsequent Default or impair any right consequent thereto. In case an Event of
Default with respect to the Company specified in Section 6.01(f) or 6.01(g) of
the Indenture occurs, such principal amount, together with make-whole amount, if
any, and interest with respect to all of the Notes, shall be due and payable
immediately without any declaration or other act on the part of the Trustee or
the Holders of the Notes.
17. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company, and may otherwise deal with
the Company, its Subsidiaries or their respective Affiliates as if it were not
the Trustee.
18. No Recourse Against Others. No incorporator, director,
officer, employee, stockholder or controlling person, as such, of the Company
shall have any liability for any obligations of the Company under the Notes or
the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Note, each Holder shall waive and
release all such liability. The waiver and release shall be part of the
consideration for the issue of the Notes.
B-6
19. Authentication. This Note shall not be valid until the
Trustee or Authenticating Agent manually signs the certificate of authentication
on this Note.
20. Multiple Counterparts. The parties may sign multiple
counterparts of this Note. Each signed counterpart shall be deemed an original
but all of them together represent one and the same Note.
21. Governing Law. THIS NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES TO THE INDENTURE HAS AGREED
TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE.
22. Abbreviations and Defined Terms. Customary abbreviations
may be used in the name of a Holder of a Note or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
23. CUSIP Numbers. The Company has caused CUSIP numbers to be
printed on the Notes as a convenience to the Holders. No representation is made
as to the accuracy of such numbers as printed on the Notes and reliance may be
placed only on the other identification numbers printed hereon.
24. Indenture. Each Holder, by accepting a Note, agrees to be
bound by all of the terms and provisions of the Indenture, as the same may be
amended from time to time.
The Company will furnish to any Holder of a Note upon written
request and without charge a copy of the Indenture which has the text of this
Note in larger type. Requests may be made to: HEALTHSOUTH Corporation, Xxx
XxxxxxXxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Telephone No. (000) 000-0000,
Facsimile No. (000) 000-0000, Attention: Xxxxxxx X. Xxxxxx.
B-7
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint________________________________________________________,
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date: Signed:
----------------------------- ----------------------------
(Sign exactly as your name
appears on the other
side of this Note)
Medallion Guarantee:
----------------------------
B-8
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.12 or Section 4.15 of the Indenture, check the
appropriate box:
Section 4.12 |_|
Section 4.15 |_|
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.12 or Section 4.15 of the Indenture, state
the amount you elect to have purchased:
$
----------------------
Date:
------------------------- ---------------------------
NOTICE: The signature on
this assignment must
correspond with the name
as it appears upon the
face of the within Note in
every particular without
alteration or enlargement
or any change whatsoever
and be guaranteed by the
endorser's bank or broker.
Medallion Guarantee:
------------------------
B-9
EXHIBIT C
[FORM OF RULE 144A TRANSFER CERTIFICATE]
[Date]
[Name of Registrar]
[Address of Registrar]
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of
February 1, 2001, between HEALTHSOUTH Corporation, as Issuer (the "Company"),
and The Bank of New York, as Trustee. Capitalized terms used but not defined
herein shall have the respective meanings given to such terms in the Indenture
or Rule 144A, as the case may be.
[Insert the following paragraph for any transfer made pursuant to Section
2.16(b)(vi):
This certificate relates to US$___________ principal amount of
Notes which are held in the form of a beneficial interest in the Restricted
Global Note (CUSIP No. ______________ ) with the Depositary in the name of
[insert name of transferor] (the "Transferor"). The Transferor has requested a
transfer of such beneficial interest for one or more Certificated Notes to be
registered in the name of [insert name of transferee] (the "Transferee").]
[Insert the following paragraph for any transfer made pursuant to Section
2.16(b)(v):
This certificate relates to US$___________ principal amount of
Notes which are held in the form of a beneficial interest in the Regulation S
Global Note (CUSIP No. ______________ ) with the Depositary in the name of
[insert name of transferor] (the "Transferor"). The Transferor has requested a
transfer of such beneficial interest for a beneficial interest in the Restricted
Global Note to be registered in the name of [insert name of transferee] (the
"Transferee").]
[Insert the following paragraph for any transfer made pursuant to Section
2.16(c)(iii):
This certificate relates to US$__________ principal amount of
Notes which are held in the form of one or more Certificated Notes registered in
the name of [insert name of transferor (the "Transferor"). The Transferor has
requested a transfer of such Certificated Notes for a beneficial interest in the
Restricted Global Note (CUSIP No. _____________ ) to be held [with the
Depositary in the name of [insert name of Transferee] (the "Transferee").]
In connection with such request for transfer and in respect of
such Notes, the Transferor does hereby certify that such transfer is being
effected in accordance with the transfer restrictions set forth in the Indenture
and the Notes and pursuant to and in accordance with Rule 144A, and accordingly
the Transferor does hereby certify:
(1) the Transferee is a person that the Transferor
and any person acting on behalf of the Transferor reasonably believe is
purchasing such Notes for its own account, or for one or more accounts
with respect to which the Transferee exercises sole investment
C-1
discretion, and the Transferee and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A;
(2) the Transferor and any person acting on its
behalf has taken reasonable steps to ensure that the Transferee is
aware that the Transferor may be relying on Rule 144A in connection
with the transaction; and
(3) the transaction satisfies all other requirements
of Rule 144A and of any applicable Notes laws of any state of the
United States or any other jurisdiction.
You and the Company are entitled to rely upon this certificate
and are irrevocably authorized to produce this certificate or a copy hereof to
any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.
[Name of Transferor]
By:
------------------------
Name:
Title:
C-2
EXHIBIT D
[FORM OF REGULATION S TRANSFER CERTIFICATE]
[date]
[Name of Registrar]
[Address of Registrar]
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of
February 1, 2001, between HEALTHSOUTH Corporation, as Issuer (the "Company"),
and The Bank of New York, as Trustee. Capitalized terms used but not defined
herein shall have the respective meanings given to such terms in the Indenture
or Regulation S, as the case may be.
[Insert the following paragraph for any transfer made pursuant to Section
2.16(b)(iii) or 2.16(b)(iv):
This certificate relates to US$__________ principal amount of
Notes which are held in the form of a beneficial interest in the Restricted
Global Note (CUSIP No.__________) with the Depositary in the name of [insert
name of transferor] (the "Transferor"). The Transferor has requested a transfer
of such beneficial interest for a beneficial interest in the Regulation S Global
Note (CUSIP No.__________) to be held [[include the following for any transfer
made pursuant to Section 2.16(b)(iii): with [Euroclear] [Clearstream] (Common
Code No.__________)] through the Depositary in the name of [insert name of
transferee] (the "Transferee").]
[Insert the following paragraph for any transfer made pursuant to Section
2.16(c)(iii):
This certificate relates to US$__________ principal amount of
Notes which are held in the form of one or more Certificated Notes registered in
the name of [insert name of transferor) (the "Transferor"). The Transferor has
requested a transfer of such Certificated Notes for a beneficial interest in the
Regulation S Global Note (CUSIP No.__________) to be held [with [Euroclear]
[Clearstream]] through the Depositary in the name of [insert name of transferee]
(the "Transferee").]
In connection with such request for transfer and in respect of
such Notes, the Transferor does hereby certify that such transfer is being
effected in accordance with the transfer restrictions set forth in the Indenture
and the Notes and pursuant to and in accordance with Regulation S, and
accordingly the Transferor does hereby certify:
(1) the offer of such Notes was not made to a person
in the United States;
(2) either (A) at the time the buy order for such
Notes was originated, the Transferee was outside the United States or
the Transferor and any person acting on its behalf reasonably believed
that the Transferee was outside the United States or (B) the
transaction was executed in, or through the facilities of, a designated
offshore securities market and neither the Transferor nor any person
acting on its behalf knew that the transaction was pre-arranged with a
buyer in the United States,
(3) no directed selling efforts have been made in the
United States in contravention of the requirements of Rule 903(b) or
904(b) of the Securities Act, as applicable, and
(4) the transaction is not part of a plan or scheme
to evade the registration requirements of the
Securities Act.
[Add the following for transfers made during the Regulation S Restricted Period:
In addition, (A) if the provisions of Rule 903(c)(3) or Rule
904(c)(1) of the Securities Act are applicable to the transaction, the
Transferor hereby certifies that the transfer is being made in accordance with
the requirements of Rule 903(c)(3) or Rule 904(c)(1), as the case may be, and
(B) upon completion of the transaction, the Transferee will hold the transferred
beneficial interest through Euroclear or Clearstream.]
You and the Company are entitled to rely upon this certificate
and are irrevocably authorized to produce this certificate or a copy hereof to
any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.
[Name of Transferor]
By:
-------------------------------------
Name:
Title:
D-2
EXHIBIT E
[FORM OF RULE 144 TRANSFER CERTIFICATE]
[date]
[Name of Registrar]
[Address of Registrar]
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of
February 1, 2001, between HEALTHSOUTH Corporation, as Issuer (the "Company"),
and The Bank of New York, as Trustee. Capitalized terms used but not defined
herein shall have the respective meanings given to such terms in the Indenture
or Rule 144, as the case may be.
[Insert the following paragraph for any transfer made pursuant to Section
2.16(b)(iii):
This certificate relates to US$__________ principal amount of
Notes which are held in the form of a beneficial interest in the Restricted
Global Note (CUSIP No.__________) with the Depositary in the name of [insert
name of transferor] (the "Transferor"). The Transferor has requested a transfer
of such beneficial interest for a beneficial interest in the Regulation S Global
Note (CUSIP No.__________) to be held with the Depositary in the name of [insert
name of transferee] (the "Transferee").]
[Insert the following paragraph for any transfer made pursuant to Section
2.16(b)(vi):
This certificate relates to US$__________ principal amount of
Notes which are held in the form of a beneficial interest in the Restricted
Global Note (CUSIP No.__________) with the Depositary in the name of [insert
name of transferor] (the "Transferor"). The Transferor has requested a transfer
of such beneficial interest for one or more Certificated Notes to be registered
in the name of [insert name of transferee] (the "Transferee").]
[Insert the following paragraph for any transfer made pursuant to Section
2.16(b)(vii):
This certificate relates to US$__________ principal amount of
Notes which are held in the form of a beneficial interest in the Regulation S
Global Note (CUSIP No.__________) with the Depositary in the name of [insert
name of transferor] (the "Transferor"). The Transferor has requested a transfer
of such beneficial interest for one or more Certificated Notes to be registered
in the name of [insert name of transferee] (the "Transferee").]
In connection with such request for transfer and in respect of
such Notes, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Indenture
and the Notes, and that the Notes are being transferred in a transaction
permitted by Rule 144 under the Securities Act.
You and the Company are entitled to rely upon this certificate
and are irrevocably authorized to produce this certificate or a copy hereof to
any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby,
[Name of Transferor]
By:
---------------------------------
Name:
Title:
E-2
EXHIBIT F
[FORM OF ACCREDITED INVESTOR TRANSFER CERTIFICATE]
[date]
[Name of Registrar]
[Address of Registrar]
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of
February 1, 2001, between HEALTHSOUTH Corporation, as Issuer (the "Company"),
and The Bank of New York, as Trustee. Capitalized terms used but not defined
herein shall have the respective meanings given to such terms in the Indenture
or Regulation D, as the case may be.
[Insert the following paragraph for any transfer made pursuant to Section
2.16(b)(vi):
This certificate relates to US$__________ principal amount of
Notes which are held in the form of a beneficial interest in the Restricted
Global Note (CUSIP No.__________) with the Depositary in the name of [insert
name of transferor] (the "Transferor"). The Transferor has requested a transfer
of such beneficial interest for a beneficial interest in one or more
Certificated Notes (CUSIP No.__________) to be held with the Depositary in the
name of [insert name of transferee] (the "Transferee"].
[Insert the following paragraph for any transfer made pursuant to Section
2.16(b)(vii) of the Indenture:
This certificate relates to US$__________ principal amount of
Notes which are held in the form of a beneficial interest in the Regulation S
Global Note (CUSIP No.__________) with the Depositary in the name of [insert
name of transferor] (the "Transferor"). The Transferor has requested a transfer
of such beneficial interest for one or more Certificated Notes to be registered
in the name of [insert name of transferee] (the "Transferee").]
[Insert the following paragraph for any transfer made pursuant to Section
2.16(c)(i) of the Indenture:
This certificate relates to US$__________ principal amount of
Notes which are held in the form of one or more Certificated Notes registered in
the name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such Certificated Notes for one or more Certificated
Notes to be registered in the name of [insert name of transferee] (the
"Transferee").]
The undersigned represents and warrants to you that:
(1) We are an institutional "accredited investor" (as
defined in Rule 501(a)(1). (2), (3) or (7) of Regulation D under the
Securities Act of 1933, as amended (the "Securities Act")) purchasing
for our own account or for the account of such an institutional
"accredited investor", and we are acquiring the Notes not with a view
to, or for offer or sale in connection with, any distribution in
violation of the Securities Act or other applicable
securities law and we have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and
risks of our investment in the Notes and invest in or purchase
securities similar to the Notes in the normal course of our business.
We and any accounts for which we are acting are each able to bear the
economic risk of our investment.
(2) We understand and acknowledge that the Notes have
not been registered under the Securities Act or any other applicable
securities law and unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on
behalf of any investor account for which we are purchasing Notes to
offer, sell or otherwise transfer such Notes prior to the date which is
two (2) years after the later of the date of original issue and the
last date on which the Company or any Affiliate of the Company was the
owner of such Notes (or any predecessor thereto) (such later date, the
"Resale Restriction Termination Date") only (a) to a Person we
reasonably believe is a qualified institutional buyer (as defined in
Rule 144A under the Securities Act) that purchases for its own account
or for the account of a qualified institutional buyer to whom notice is
given that the resale, pledge or transfer is being made in a
transaction meeting the requirements of Rule 144A under the securities
act, (b) in a transaction meeting the requirements of Rule 144 under
the Securities Act, (c) outside the United States to a foreign person
in a transaction meeting the requirements of Rule 904 of Regulation S
under the Securities Act or (d) in accordance with another exemption
from the registration requirements of the Securities Act, provided that
in the case of a transfer, pledge or sale pursuant to this clause (d)
such transfer is subject to the receipt by the Registrar (and the
Company, if it so requests) of a certification of the transferor and an
Opinion of Counsel t the effect that such transfer is in compliance
with the Securities Act, (e) to the Company or its Affiliates or (f)
pursuant to an effective registration statement under the Securities
Act and, in each case, in accordance with any applicable securities
laws of any state of the United States or any other applicable
jurisdiction and the Indenture governing the notes. Any transfer of
Notes pursuant to clause (d) above to an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2) (3) or (7) of
Regulation D under the Securities Act that is purchasing the Notes for
its own account or for the account of such an institutional "accredited
investor," shall involve a minimum purchase price of US$250,000 for
such Notes, subject in each of the foregoing cases to any requirement
of law that the disposition of our property or the property of such
investor account or accounts be at all times within our or their
control and in compliance with any applicable state securities laws.
The foregoing restrictions on resale will not apply subsequent to the
Resale Restriction Termination Date. If any resale or other transfer of
the Notes is proposed to an institutional "accredited investor" prior
to the Resale Restriction Termination Date, the transferor shall
deliver to the Company and the Trustee a letter from the transferee
substantially in the form of this letter, which shall provide, among
other things, that the transferee is an institutional "accredited
investor" within the meaning of Rule 501 (a)(l), (2), (3) or (7) of
Regulation D under the Securities Act and that it is acquiring such
Notes for investment purposes and not for distribution in violation of
the Securities Act. We acknowledge that the Company and the Trustee
reserve the right prior to any offer, sale or other transfer of the
Notes pursuant to clause (c) or (d) above prior to the Resale
Restriction Termination Date to require the delivery of an opinion of
counsel, certifications and/or other information satisfactory to the
Company and the Trustee.
(3) We are acquiring the Notes purchased by us for
our own account or for one or more accounts as to each of which we
exercise sole investment discretion.
F-2
You and the Company are entitled to rely upon this certificate
and are irrevocably authorized to produce this certificate or a copy hereof to
any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.
[Name of Transferee]
By:
-----------------------------------
Name:
Title:
F-3
