\nSection 11.01. TIA Controls…………………………………………………………63
\nSection 11.02. Notices……………………………………………………………..63
\nSection 11.03. Communications by Holders with Other Holders…………………………….64
\nSection 11.04. Certificate and Opinion as to Conditions Precedent……………………….64
\nSection 11.05. Statements Required in Certificate and Opinion…………………………..65
\nSection 11.06. Rules by Trustee and Agents……………………………………………65
\nSection 11.07. Business Days; Legal Holidays………………………………………….65
\nSection 11.08. Governing Law………………………………………………………..65
\nSection 11.09. Waiver of Trial by Jury……………………………………………….65
\nSection 11.10. Submission to Jurisdiction…………………………………………….66
\nSection 11.11. No Adverse Interpretation of Other Agreements……………………………66
\nSection 11.12. No Recourse Against Others…………………………………………….66
\nSection 11.13. Successors…………………………………………………………..66
\nSection 11.14. Multiple Counterparts…………………………………………………66
\nSection 11.15. Table of Contents, Headings, etc……………………………………….66
\nSection 11.16. Separability…………………………………………………………66
\nSection 11.17. Translation………………………………………………………….67<\/p>\nSIGNATURES………………………………………………………………………….S-1<\/p>\n
EXHIBITS<\/p>\n
Exhibit A Form of Initial Notes
\nExhibit B Form of Exchange Notes
\nExhibit C Form of Rule 144A Transfer Certificate
\nExhibit D Form of Regulation S Transfer Certificate
\nExhibit E Form of Rule 144 Transfer Certificate
\nExhibit F Form of Accredited Investor Transfer Certificate<\/p>\n
iv
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
INDENTURE, dated as of February 1, 2001, between HEALTHSOUTH
\nCORPORATION, a corporation incorporated in Delaware (the “Company”), as Issuer,
\nand The Bank of New York, a New York banking corporation, as Trustee (the
\n“Trustee”).<\/p>\n
The Company has duly authorized the creation of an issue of
\nSeries A 8 1\/2% Senior Notes due 2008 and Series B 8 1\/2% Senior Notes due 2008
\nand, to provide therefor, the Company has duly authorized the execution and
\ndelivery of this Indenture. All things necessary to make the Notes, when duly
\nissued and executed by the Company, and authenticated and delivered hereunder,
\nthe valid obligations of the Company, and to make this Indenture a valid and
\nbinding agreement of the Company, have been done.<\/p>\n
Each party agrees as follows for the benefit of the other
\nparties and for the equal and ratable benefit of the Holders:<\/p>\n
ARTICLE 1<\/p>\n
DEFINITIONS<\/p>\n
Section 1.01. Definitions.
\n ———–<\/p>\n
“2000 Credit Agreement” means the Credit Agreement dated as of
\nOctober 31, 2000 by and among the Company, as borrower, UBS AG, Stamford Branch,
\nas Administrative Agent, Deutsche Bank AG New York Branch, as Syndication Agent,
\nthe lenders party thereto from time to time, UBS Warburg LLC and Deutsche Bank
\nSecurities Inc., as Joint Lead Arrangers, and The Industrial Bank of Japan,
\nLimited, as Documentation Agent, together with the related documents thereto,
\nincluding, without limitation, any security documents, if any, and all exhibits
\nand schedules thereto and any agreement or agreements relating to any extension,
\nrefunding, refinancing, successor or replacement facility, whether or not with
\nthe same lender, and whether or not the principal amount or amount of letters of
\ncredit outstanding thereunder or the interest rate payable in respect thereof
\nshall be thereby increased, in each case as amended and in effect from time to
\ntime.<\/p>\n
“Acquired Indebtedness” means (i) with respect to any Person
\nthat becomes a Subsidiary of the Company after the Issue Date, Indebtedness of
\nsuch Person and its Subsidiaries existing at the time such Person becomes a
\nSubsidiary of the Company and (ii) with respect to the Company or any of its
\nSubsidiaries, any Indebtedness assumed by the Company or any of its Subsidiaries
\nin connection with the acquisition of an asset from another Person.<\/p>\n
“Additional Interest” has the meaning provided to such term in
\nthe Registration Rights Agreement.<\/p>\n
“Affiliate” of any specified Person means any other Person
\ndirectly or indirectly controlling, controlled by or under direct or indirect
\ncommon control with such specified Person. For the purposes of this definition,
\n“control” when used with respect to any specified Person means the power to
\ndirect the management and policies of such Person, directly or indirectly,
\nwhether through the ownership of voting securities, by contract or otherwise,
\nand the terms “controlling” and “controlled” have meanings correlative to the
\nforegoing.<\/p>\n
“Agent” means any Registrar, Paying Agent, co-Registrar,
\nauthenticating agent or agent for service of notices and demands.<\/p>\n
“Asset Sale” for any Person means the sale, lease, conveyance
\nor other disposition (including, without limitation, by merger or consolidation,
\nand whether by operation of law or otherwise) of any of that Person’s assets
\n(including, without limitation, the sale or other disposition of Capital Stock
\nof any Subsidiary of such Person, whether by such Person or by such Subsidiary),
\nwhether owned on the Issue Date or subsequently acquired, in one transaction or
\na series of related transactions, in which such Person and\/or its Subsidiaries
\nsell, lease, convey or otherwise dispose of: (i) all or substantially all of the
\nCapital Stock of any of such Person’s Subsidiaries; (ii) assets which constitute
\nall or substantially all of any division or line of business of such Person or
\nany of its Subsidiaries; or (iii) any other assets of such Person or any of its
\nSubsidiaries, other than in the ordinary course of business, provided, that the
\nFair Market Value thereof shall be at least 1% of Consolidated Tangible Assets;
\nprovided, however, that the following shall not constitute Asset Sales: (a)
\ntransactions between the Company and any of its Wholly Owned Subsidiaries or
\namong such Wholly Owned Subsidiaries; (b) any transaction not prohibited by
\nSection 4.10 hereof or that constitutes a Permitted Investment; (c) any transfer
\nof assets (including Capital Stock) that is governed by and in accordance with
\nArticle 5 hereof or the creation of any Lien not prohibited by Section 4.14
\nhereof; or (d) sales of damaged, worn-out or obsolete equipment or assets that,
\nin the Company’s reasonable judgment, are no longer either used or useful in the
\nbusiness of the Company or its Subsidiaries.<\/p>\n
“Attributable Indebtedness” when used with respect to any Sale
\nand Leaseback Transaction means, as at the time of determination, the present
\nvalue (discounted at a rate equivalent to the interest rate implicit in the
\nlease, compounded on a semiannual basis) of the total obligations of the lessee
\nfor rental payments, after excluding all amounts required to be paid on account
\nof maintenance and repairs, insurance, taxes, utilities and other similar
\nexpenses payable by the lessee pursuant to the terms of the lease, during the
\nremaining term of the lease included in any such Sale and Leaseback Transaction
\nor until the earliest date on which the lessee may terminate such lease without
\npenalty or upon payment of a penalty (in which case the rental payments shall
\ninclude such penalty); provided, that the Attributable Indebtedness with respect
\nto a Sale and Leaseback Transaction shall be no less than the fair market value
\nof the property subject to such Sale and Leaseback Transaction.<\/p>\n
“Bank Debt” means all obligations of the Company and its
\nSubsidiaries, now or hereafter existing under (i) the Credit Agreements, whether
\nfor principal, interest, reimbursement of amounts drawn under letters of credit
\nissued pursuant thereto, guarantees in respect thereof, fees, expenses,
\npremiums, indemnities or otherwise, and (ii) any Indebtedness incurred by the
\nCompany to extend, refund or refinance, in whole or in part, the Bank Debt,
\nincluding any interest and premium on any such Indebtedness.<\/p>\n
“Board of Directors” means, with respect to any Person, the
\nboard of directors or similar governing body of such Person or any duly
\nauthorized committee thereof.<\/p>\n
“Board Resolution” means, with respect to any Person, a copy
\nof a resolution certified by the Secretary or an Assistant Secretary of such
\nPerson to have been duly adopted by the Board of Directors of such Person and to
\nbe in full force and effect on the date of such certification and delivered to
\nthe Trustee.<\/p>\n
2<\/p>\n
“Capital Stock” of any Person means any and all shares, rights
\nto purchase, warrants or options (whether or not currently exercisable),
\nparticipation or other equivalents of or interest in (however designated) the
\nequity (including without limitation common stock, preferred stock and
\npartnership, joint venture and limited liability company interests) of such
\nPerson (excluding any debt securities that are convertible into, or exchangeable
\nfor, such equity).<\/p>\n
“Capitalized Lease Obligations” of any Person means the
\nobligation of such Person to pay rent or other amounts under a lease that is
\nrequired to be capitalized for financial reporting purposes in accordance with
\nGAAP, and the amount of such obligation shall be the capitalized amount thereof
\ndetermined in accordance with GAAP.<\/p>\n
“Certificated Note” means a Note issued in certificated form
\nto a Person other than the Depositary.<\/p>\n
“Change of Control” means the occurrence of any of the
\nfollowing: (i) all or substantially all of the Company’s assets are sold as an
\nentirety to any Person or related group of Persons; (ii) there shall be
\nconsummated any consolidation or merger of the Company (A) in which the Company
\nis not the continuing or surviving corporation (other than a consolidation or
\nmerger with a Wholly Owned Subsidiary of the Company in which all shares of the
\nCompany’s Common Equity outstanding immediately prior to the effectiveness
\nthereof are changed into or exchanged for the same consideration) or (B)
\npursuant to which the Company’s Common Equity would be converted into cash,
\nsecurities or other property, in each case other than a consolidation or merger
\nof the Company in which the holders of the Company’s Common Equity immediately
\nprior to the consolidation or merger have, directly or indirectly, at least a
\nmajority of the total voting power of all classes of Capital Stock entitled to
\nvote generally in the election of directors of the continuing or surviving
\ncorporation immediately after such consolidation or merger in substantially the
\nsame proportion as their ownership of the Company’s Common Equity immediately
\nbefore such transaction; (iii) any Person, or any Persons acting together which
\nwould constitute a “group” for purposes of Section 13(d) of the Exchange Act,
\ntogether with any affiliates thereof, shall beneficially own (as defined in Rule
\n13d-3 under the Exchange Act) at least 50% of the total voting power of all
\nclasses of Capital Stock of the Company entitled to vote generally in the
\nelection of directors of the Company; (iv) at any time during any consecutive
\ntwo-year period, individuals who at the beginning of such period constituted the
\nBoard of Directors of the Company (together with any new directors whose
\nelection by such Board of Directors or whose nomination for election by the
\nstockholders of the Company was approved by a vote of 66-2\/3% of the directors
\nthen still in office who were either directors at the beginning of such period
\nor whose election or nomination for election was previously so approved) cease
\nfor any reason to constitute a majority of the Board of Directors of the Company
\nthen in office; or (v) the Company is liquidated or dissolved or adopts a plan
\nof liquidation or dissolution.<\/p>\n
“Commission” means the Securities and Exchange Commission, as
\nfrom time to time constituted, created under the Exchange Act, or if at any time
\nafter the execution of this Indenture such Commission is not existing and
\nperforming the duties now assigned to it under the Trust Indenture Act, the body
\nperforming such duties at the time.<\/p>\n
“Common Equity” of any Person means all Capital Stock of such
\nPerson that is generally entitled to (i) vote in the election of directors of
\nsuch Person or (ii) if such Person is not a corporation, vote or otherwise
\nparticipate in the selection of the governing body, partners, managers or others
\nthat will control the management and policies of such Person.<\/p>\n
3<\/p>\n
“Company” means the party named as such in the first paragraph
\nof this Indenture until a successor replaces such party pursuant to Article 5
\nhereof and thereafter means such successor.<\/p>\n
“Consolidated Amortization Expense” of any Person for any
\nperiod means the amortization expense of such Person and its Subsidiaries for
\nsuch period (to the extent included in the computation of Consolidated Net
\nIncome of such Person), determined on a consolidated basis in accordance with
\nGAAP.<\/p>\n
“Consolidated Depreciation Expense” of any Person means the
\ndepreciation expense of such Person and its Subsidiaries for such period (to the
\nextent included in the computation of Consolidated Net Income of such Person),
\ndetermined on a consolidated basis in accordance with GAAP.<\/p>\n
“Consolidated EBITDA” of any Person means, with respect to any
\ndetermination date, Consolidated Net Income, plus (i) Consolidated Income Tax
\nExpense, plus (ii) Consolidated Depreciation Expense, plus (iii) Consolidated
\nAmortization Expense, plus (iv) Consolidated Interest Expense, plus (v) all
\nother unusual non-cash items or non-recurring non-cash items reducing
\nConsolidated Net Income of such Person and its Subsidiaries, determined on a
\nconsolidated basis in accordance with GAAP, and less all non-cash items
\nincreasing Consolidated Net Income of such Person and its Subsidiaries,
\ndetermined on a consolidated basis in accordance with GAAP, in each case, for
\nsuch Person’s prior four full fiscal quarters for which financial results have
\nbeen reported immediately preceding the determination date.<\/p>\n
“Consolidated Income Tax Expense” means, for any Person for
\nany period, the provision for taxes based on income and profits of such Person
\nand its Subsidiaries to the extent such provision for income taxes was deducted
\nin computing Consolidated Net Income of such Person for such period, determined
\non a consolidated basis in accordance with GAAP.<\/p>\n
“Consolidated Interest Expense” of any Person for any period
\nmeans, without duplication, (i) the Interest Expense of such Person and its
\nSubsidiaries for such period, determined on a consolidated basis in accordance
\nwith GAAP, plus (ii) (to the extent not otherwise included within the definition
\nof Interest Expense as imputed interest) one-third of the rental expense on
\nAttributable Indebtedness of such Person for such period determined on a
\nconsolidated basis, plus (iii) the dividend requirements of such Person and its
\nSubsidiaries with respect to Disqualified Stock and with respect to all other
\nPreferred Stock of Subsidiaries of such Person (in each case whether in cash or
\notherwise (except dividends payable solely in shares of Capital Stock (other
\nthan Disqualified Stock) of such Person or such Subsidiary)) paid, accrued or
\naccumulated during such period times a fraction the numerator of which is one
\nand the denominator of which is one minus the then effective consolidated
\nFederal, state and local tax rate of such Person, expressed as a decimal.<\/p>\n
“Consolidated Net Income” of any Person for any period means
\nthe net income (or loss) of such Person and its Subsidiaries for such period
\ndetermined on a consolidated basis in accordance with GAAP; provided that there
\nshall be excluded from such net income (to the extent otherwise included
\ntherein), without duplication:<\/p>\n
(i) the net income (or loss) of any Person (other than a
\n Subsidiary of the referent Person) in which any Person other than the
\n referent Person has an ownership interest, except to the extent that
\n any such income has actually been received by the referent Person or
\n any of<\/p>\n
4<\/p>\n
its Wholly Owned Subsidiaries in the form of dividends or similar
\n distributions during such period;<\/p>\n
(ii) except to the extent includable in the consolidated net
\n income of the referent Person pursuant to the foregoing clause (i),
\n the net income (or loss) of any Person that accrued prior to the date
\n that (a) such Person becomes a Subsidiary of the referent Person or is
\n merged into or consolidated with the referent Person or any of its
\n Subsidiaries or (b) the assets of such Person are acquired by the
\n referent Person or any of its Subsidiaries;<\/p>\n
(iii) the net income of any Subsidiary of the referent Person
\n (other than a Wholly Owned Subsidiary) to the extent that the
\n declaration or payment of dividends or similar distributions by such
\n Subsidiary of that income is not permitted by operation of the terms
\n of its charter or any agreement, instrument, judgment, decree, order,
\n statute, rule or governmental regulation applicable to that Subsidiary
\n during such period;<\/p>\n
(iv) any gain (or loss), together with any related provisions for
\n taxes on any such gain, realized during such period by the referent
\n Person or any of its Subsidiaries upon (a) the acquisition of any
\n securities, or the extinguishment of any Indebtedness, of the referent
\n Person or any of its Subsidiaries or (b) any Asset Sale by the
\n referent Person or any of its Subsidiaries;<\/p>\n
(v) any extraordinary gain or extraordinary loss, together with
\n any related provision for taxes or tax benefit resulting from any such
\n extraordinary gain or extraordinary loss, realized by the referent
\n Person or any of its Subsidiaries during such period; and<\/p>\n
(vi) in the case of a successor to such Person by consolidation,
\n merger or transfer of its assets, any earnings of the successor prior
\n to such merger, consolidation or transfer of assets.<\/p>\n
“Consolidated Net Worth” of any Person as of any date means
\nthe stockholders’ equity (including any preferred stock that is classified as
\nequity under GAAP, other than Disqualified Stock) of such Person and its
\nSubsidiaries (excluding any equity adjustment for foreign currency translation
\nfor any period subsequent to the Issue Date) on a consolidated basis at such
\ndate, as determined in accordance with GAAP, less all write-ups subsequent to
\nthe Issue Date in the book value of any asset owned by such Person or any of its
\nSubsidiaries.<\/p>\n
“Consolidated Tangible Assets” of any Person as of any date
\nmeans the total assets of such Person and its Subsidiaries (excluding any assets
\nthat would be classified as “intangible assets” under GAAP) on a consolidated
\nbasis at such date, as determined in accordance with GAAP, less all write-ups
\nsubsequent to the Issue Date in the book value of any asset owned by such Person
\nor any of its Subsidiaries.<\/p>\n
“Corporate Trust Office” means the office of the Trustee at
\nwhich at any particular time its corporate trust business shall be principally
\nadministered, which office at the date of execution of this Indenture is located
\nat 101 Barclay Street, Floor 21 West, New York, New York 10286, Attention:
\nCorporate Trust Administration, or such other address as the Trustee may
\ndesignate from time to time by notice to the Holders and the Company, or the
\nprincipal corporate trust office of any successor Trustee (or such other address
\nas a successor Trustee may designate from time to time by notice to the Holders
\nand the Company).<\/p>\n
5<\/p>\n
“Credit Agreements” means (i) the Credit Agreement dated as of
\nJune 23, 1998 by and among the Company, as borrower, Nationsbank, National
\nAssociation, as Administrative Agent and Arranger, J.P. Morgan Securities Inc.,
\nDeutsche Bank AG and Scotiabanc, Inc., as Syndication Agents and Co-Arrangers,
\nand the other lenders party thereto from time to time, together with the related
\ndocuments thereto, including, without limitation, any security documents, if
\nany, and all exhibits and schedules thereto and any agreement or agreements
\nrelating to any extension, refunding, refinancing, successor or replacement
\nfacility, whether or not with the same lender, and whether or not the principal
\namount or amount of letters of credit outstanding thereunder or the interest
\nrate payable in respect thereof shall be thereby increased, in each case as
\namended and in effect from time to time and (ii) the 2000 Credit Agreement.<\/p>\n
“Default” means any event, act or condition that is, or after
\nnotice or the passage of time or both would be, an Event of Default.<\/p>\n
“Disqualified Stock” means any Capital Stock that, by its
\nterms (or by the terms of any security into which it is convertible or for which
\nit is exchangeable), or upon the happening of any event, matures or is
\nmandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
\nis redeemable at the option of the holder thereof, in whole or in part, on or
\nprior to the Stated Maturity date of the Notes.<\/p>\n
“DTC” means The Depository Trust Company, a New York
\ncorporation.<\/p>\n
“DTC Letter of Representations” shall mean the Letter of
\nRepresentations, dated the Issue Date, among the Company, DTC and the Trustee.<\/p>\n
“EBITDA Coverage Ratio” with respect to any period means the
\nratio of (i) Consolidated EBITDA of the Company to (ii) the aggregate amount of
\nConsolidated Interest Expense of the Company for such period; provided, however,
\nthat if any calculation of the Company’s EBITDA Coverage Ratio requires the use
\nof any quarter prior to the Issue Date, such calculation shall be made on a pro
\nforma basis, giving effect to the issuance of the Notes and the use of the net
\nproceeds therefrom as if the same had occurred at the beginning of the
\nfour-quarter period used to make such calculation; and provided further that if
\nany such calculation requires the use of any quarter prior to the date that any
\nAsset Sale was consummated, or that any Indebtedness was incurred, or that any
\nacquisition of a hospital or other healthcare facility or any assets purchased
\noutside the ordinary course of business was effected, by the Company or any of
\nits Subsidiaries, such calculation shall be made on a pro forma basis, giving
\neffect to each such Asset Sale, incurrence of Indebtedness or acquisition, as
\nthe case may be, and the use of any proceeds therefrom, as if the same had
\noccurred at the beginning of the four-quarter period used to make such
\ncalculation.<\/p>\n
“Eligible Investments” of any Person means Investments of such
\nPerson in:<\/p>\n
(i) direct obligations of, or obligations the payment of which is
\n guaranteed by, the United States of America or an interest in any
\n trust or fund that invests solely in such obligations or repurchase
\n agreements, properly secured, with respect to such obligations;<\/p>\n
(ii) direct obligations of agencies or instrumentalities of the
\n United States of America having a rating of A or higher by Standard & Poor’s Corporation or A2 or higher by Moody’s Investors Service, Inc.;<\/p>\n
6<\/p>\n
(iii) a certificate of deposit issued by, or other
\n interest-bearing deposits with, a bank having its principal place of
\n business in the United States of America and having equity capital of
\n not less than $250,000,000;<\/p>\n
(iv) a certificate of deposit by, or other interest-bearing
\n deposits with, any other bank organized under the laws of the United
\n States of America or any state thereof, provided that such deposit is
\n either (a) insured by the Federal Deposit Insurance Corporation or (b)
\n properly secured by such bank by pledging direct obligations of the
\n United States of America having a market value of not less than the
\n face amount of such deposits;<\/p>\n
(v) prime commercial paper maturing within 270 days of the
\n acquisition thereof and, at the time of acquisition, having a rating
\n of A-1 or higher by Standard & Poor’s Corporation, or P-1 or higher by
\n Moody’s Investors Service, Inc.; or<\/p>\n
(vi) eligible banker’s acceptances, repurchase agreements and
\n tax-exempt municipal bonds having a maturity of less than one year, in
\n each case having a rating, or that is the full recourse obligation of
\n a person whose senior debt is rated A or higher by Standard & Poor’s
\n Corporation or A2 or higher by Moody’s Investors Service, Inc.<\/p>\n
“Equity Offering” means a primary offering of Capital Stock of
\nthe Company (other than Disqualified Stock or Preferred Stock) pursuant to a
\nregistration statement filed with the Commission in accordance with the
\nSecurities Act and declared effective by the staff of the Commission.<\/p>\n
“Exchange Act” means the Securities Exchange Act of 1934, as
\namended.<\/p>\n
“Exchange Notes” means the 8 1\/2% Senior Notes due 2008,
\nSeries B (the terms of which are identical to the Initial Notes except that,
\nunless any Exchange Notes shall be issued as Private Exchange Notes (as defined
\nin the Registration Rights Agreement), the Exchange Notes shall be registered
\nunder the Securities Act, and shall not contain the restrictive legend on the
\nface of the form of the Initial Notes), to be issued in exchange for the Initial
\nNotes pursuant to the registered Exchange Offer and a Private Exchange (as
\ndefined in the Registration Rights Agreement).<\/p>\n
“Exchange Offer” means the registration by the Company under
\nthe Securities Act pursuant to a registration statement of the offer by the
\nCompany to each Holder of the Initial Notes to exchange all the Initial Notes
\nheld by such Holder for the Exchange Notes in an aggregate principal amount
\nequal to the aggregate principal amount of the Initial Notes held by such
\nHolder, all in accordance with the terms and conditions of the Registration
\nRights Agreement.<\/p>\n
“Exempted Debt” means the sum of the following as of any date
\nof determination: (i) Indebtedness of the Company and its Subsidiaries incurred
\nafter the Issue Date and secured by Liens not otherwise permitted by the
\n“Limitations on Liens” covenant and (ii) Attributable Indebtedness of the
\nCompany and its Subsidiaries in respect of every Sale and Leaseback Transaction
\nentered into after the Issue Date.<\/p>\n
“Existing Indebtedness” means all of the Indebtedness of the
\nCompany and its Subsidiaries that is outstanding on the Issue Date.<\/p>\n
7<\/p>\n
“Fair Market Value” of any asset or items means the fair
\nmarket value of such asset or items as determined in good faith by the Board of
\nDirectors and evidenced by a resolution of the Board of Directors.<\/p>\n
“GAAP” means generally accepted accounting principles set
\nforth in the opinions and pronouncements of the Accounting Principles Board of
\nthe American Institute of Certified Public Accountants and statements and
\npronouncements of the Financial Accounting Standards Board or in such other
\nstatements by such other entity as may be approved by a significant segment of
\nthe accounting profession of the United States, as from time to time in effect.<\/p>\n
“guarantee” means, as applied to any obligation, (a) a
\nguarantee (other than by endorsement or negotiable instruments for collection in
\nthe ordinary course of business), direct or indirect, in any manner, of any part
\nof all of such obligation and (b) an agreement, direct or indirect, contingent
\nor otherwise, the practical effect of which is to assure in any way the payment
\nor performance (or payment of damages in the event of non-performance) of all or
\nany part of such obligation, including, without limiting the foregoing, the
\npayment of amounts drawn down under letters of credit.<\/p>\n
“Hedging Obligations” of any Person means the obligations of
\nsuch Person pursuant to any interest rate swap agreement, foreign currency
\nexchange agreement, interest rate collar agreement, option or futures contract
\nor other similar agreement or arrangement relating to interest rates or foreign
\nexchange rates.<\/p>\n
“Holder” means a Person in whose name a Note is registered on
\nthe Registrar’s books or records.<\/p>\n
“Indebtedness” of any Person at any date means, without
\nduplication: (i) all indebtedness of such Person for borrowed money (whether or
\nnot the recourse of the lender is to the whole of the assets of such Person or
\nonly to a portion thereof); (ii) all obligations of such Person evidenced by
\nbonds, debentures, notes or other similar instruments; (iii) all obligations of
\nsuch Person in respect of letters of credit or other similar instruments (or
\nreimbursement obligations with respect thereto); (iv) all obligations of such
\nPerson with respect to Hedging Obligations (other than those that fix the
\ninterest rate on variable rate indebtedness otherwise permitted by this
\nIndenture or that protect the Company and\/or its Subsidiaries against changes in
\nforeign exchange rates); (v) all obligations of such Person to pay the deferred
\nand unpaid purchase price of property or services, except trade payables and
\naccrued expenses incurred in the ordinary course of business; (vi) all
\nCapitalized Lease Obligations of such Person; (vii) all Indebtedness of others
\nsecured by a Lien on any asset of such Person, whether or not such Indebtedness
\nis assumed by such Person; (viii) all Indebtedness of others guaranteed by such
\nPerson to the extent of such guarantee; (ix) all Attributable Indebtedness; and
\n(x) all Disqualified Stock of such Person and its Subsidiaries and all other
\nPreferred Stock of Subsidiaries of such Person valued at the greater of (a) the
\nvoluntary or involuntary liquidation preference of such Disqualified Stock or
\nsuch Preferred Stock, as the case may be, and (b) the aggregate amount payable
\nupon purchase, redemption, defeasance or payment of such Disqualified Stock or
\nsuch Preferred Stock, as the case may be. The amount of Indebtedness of any
\nPerson at any date shall be the outstanding balance at such date of all
\nunconditional obligations plus past due interest as described above, the maximum
\nliability of such Person for any such contingent obligations at such date and,
\nin the case of clause (vii), the amount of the Indebtedness secured.<\/p>\n
8<\/p>\n
“Indenture” means this Indenture as amended, restated or
\nsupplemented from time to time.<\/p>\n
“Initial Notes” means the 8 1\/2% Senior Notes due 2008, Series
\nA of the Company issued on the Issue Date and authenticated and delivered under
\nthis Indenture pursuant to Section 2.02 of this Indenture and any other notes
\n(other than Exchange Notes) issued after the Issue Date in accordance with
\nclause (iii) of the fourth paragraph of Section 2.02.<\/p>\n
“Initial Purchasers” refers to UBS Warburg LLC, Deutsche Banc
\nAlex. Brown Inc., Chase Securities Inc., First Union Securities, Inc. and Scotia
\nCapital (USA) Inc.<\/p>\n
“Interest Expense” of any Person for any period means the
\naggregate amount of interest which, in accordance with GAAP, would be set
\nopposite the caption “interest expense” or any like caption on an income
\nstatement for such Person (including, without limitation or duplication, imputed
\ninterest included in Capitalized Lease Obligations, all commissions, discounts
\nand other fees and charges owed with respect to letters of credit and bankers’
\nacceptance financing, the net costs associated with Hedging Obligations,
\namortization of financing fees and expenses, the interest portion of any
\ndeferred payment obligation, amortization of discount and all other non-cash
\ninterest expense other than interest amortized to cost of sales) plus the
\naggregate amount, if any, by which such interest expense was reduced as a result
\nof the amortization of deferred debt restructuring credits for such period.<\/p>\n
“Interest Payment Date” means the Stated Maturity of an
\ninstallment of interest on the Notes as specified in the forms of Note attached
\nhereto as Exhibits A and B.<\/p>\n
“Investments” of any Person means: (i) all investments by such
\nPerson in any other Person in the form of loans, advances or capital
\ncontributions (excluding commission, travel and similar advances to officers and
\nemployees made in the ordinary course of business); (ii) all guarantees of
\nIndebtedness or other obligations of any other Person by such Person; (iii) all
\npurchases (or other acquisitions for consideration) by such Person of
\nIndebtedness, Capital Stock or other securities of any other Person; and (iv)
\nall other items that would be classified as investments (including, without
\nlimitation, purchases of assets outside the ordinary course of business) on a
\nbalance sheet of such Person prepared in accordance with GAAP.<\/p>\n
“Issue Date” means February 1, 2001, the date the Initial
\nNotes are initially issued.<\/p>\n
“Joint Venture” means any Person at least a majority of whose
\nrevenues result from healthcare related business of facilities.<\/p>\n
“Lien” means, with respect to any asset, any mortgage, lien,
\npledge, charge, security interest or other similar encumbrance of any kind in
\nrespect of such asset, whether or not filed, recorded or otherwise perfected
\nunder applicable law (including, without limitation, any conditional sale or
\nother title retention agreement, and any financing lease in the nature thereof,
\nany agreement to sell, and any filing of, or agreement to give, any financing
\nstatement (other than notice filings not perfecting a security interest) under
\nthe Uniform Commercial Code (or equivalent statutes) of any jurisdiction).<\/p>\n
9<\/p>\n
“Net Proceeds” with respect to any Asset Sale means (i) cash
\n(in U.S. dollars or freely convertible into U.S. dollars) received by the
\nCompany or any of its Subsidiaries from such Asset Sale (including, without
\nlimitation, cash received as consideration for the assumption or incurrence of
\nliabilities incurred in connection with or in anticipation of such Asset Sale),
\nafter (a) provision for all income or other taxes measured by or resulting from
\nsuch Asset Sale or the transfer of the proceeds of such Asset Sale to the
\nCompany or any of its Subsidiaries, (b) payment of all commissions and other
\nfees and expenses related to such Asset Sale and (c) deduction of an appropriate
\namount to be provided by the Company or any of its Subsidiaries as a reserve, in
\naccordance with GAAP, against any liabilities associated with the assets sold or
\notherwise disposed of in such Asset Sale and retained by the Company or any of
\nits Subsidiaries after such Asset Sale (including, without limitation, pension
\nand other post-employment benefit liabilities and liabilities related to
\nenvironmental matters) or against any indemnification obligations associated
\nwith the sale or other disposition of the assets sold or otherwise disposed of
\nin such Asset Sale and (ii) all non-cash consideration received by the Company
\nor any of its Subsidiaries from such Asset Sales upon the liquidation or
\nconversion of such consideration into cash.<\/p>\n
“Notes” means the Initial Notes, the Exchange Notes and any
\nother notes issued after the Issue Date in accordance with clause (iii) of the
\nfourth paragraph of Section 2.02 treated as a single class of securities, as
\namended or supplemented from time to time in accordance with the terms hereof,
\nthat are issued pursuant to this Indenture.<\/p>\n
“Officer” means, with respect to any Person, the Chairman of
\nthe Board, the Chief Executive Officer, the Chief Financial Officer, Chief
\nAccounting Officer, Treasurer, President, any Vice President, secretary,
\nassistant secretary, director or other authorized signatory of such Person.<\/p>\n
“Officers’ Certificate” means a certificate signed by the
\nChairman of the Board, any Vice Chairman of the Board, the Chief Executive
\nOfficer, the President or any Vice President and by the Treasurer, any Assistant
\nTreasurer, the Secretary or any Assistant Secretary of the Company in their
\nofficial (and not individual) capacities; provided, however, that every
\nOfficers’ Certificate with respect to the compliance with a condition precedent
\nto the taking of any action under this Indenture shall include (i) a statement
\nthat the officers making or giving such Officers’ Certificate have read such
\ncondition and any definitions or other provisions contained in this Indenture
\nrelating thereto and (ii) a statement as to whether, in the opinion of such
\nofficers, such condition has been complied with.<\/p>\n
“Opinion of Counsel” means a written opinion from legal
\ncounsel (such counsel may be an employee of or counsel to the Company or the
\nTrustee) that complies with the requirements of this Indenture.<\/p>\n
“Permitted Investments” means: (i) capital contributions,
\nadvances or loans to the Company by any Subsidiary or by the Company or any of
\nits Subsidiaries to a Subsidiary of the Company; (ii) the acquisition and
\nholding by the Company and each of its Subsidiaries of receivables owing to the
\nCompany and such Subsidiary, if created or acquired in the ordinary course of
\nbusiness and payable or dischargeable in accordance with customary trade terms;
\n(iii) the acquisition and holding by the Company and its Subsidiaries of cash
\nand Eligible Investments; (iv) Investments in any Person as a result of which
\nsuch other Person becomes a Subsidiary of the Company or is merged into or
\nconsolidated with or transfers all or substantially all of its assets to the
\nCompany or any of its Subsidiaries; and (v) the making of an Investment by the
\nCompany, directly or through a Wholly Owned Subsidiary, in a Wholly Owned
\nSubsidiary formed solely for the purpose of insuring the<\/p>\n
10<\/p>\n
healthcare business and facilities owned or operated by the Company or a
\nSubsidiary and any physician employed by or on the staff of any such business or
\nfacility (the “Insurance Subsidiary”), provided that the amount invested in such
\nInsurance Subsidiary does not exceed $15,000,000.<\/p>\n
“Permitted Liens” means: (i) Liens for taxes, assessments or
\ngovernmental charges or claims that either (a) are not yet delinquent or (b) are
\nbeing contested in good faith by appropriate proceedings; (ii) statutory Liens
\nof landlords and carriers’, warehousemen’s, mechanics’, suppliers’,
\nmaterialmen’s, repairmen’s or other like Liens arising in the ordinary course of
\nbusiness and with respect to amounts that either (a) are not yet delinquent or
\n(b) are being contested in good faith by appropriate proceedings and as to which
\nappropriate reserves or other provisions have been made in accordance with GAAP;
\n(iii) Liens (other than any Lien imposed by the Employee Retirement Income
\nSecurity Act of 1974, as amended) incurred or deposits due in the ordinary
\ncourse of business in connection with workers’ compensation, unemployment
\ninsurance and other types of social security; (iv) Liens incurred or deposits
\nmade to secure the performance of tenders, bids, leases, statutory obligations,
\nsurety and appeal bonds, progress payments, government contracts and other
\nobligations of like nature (exclusive of obligations for the payment of borrowed
\nmoney), in each case, incurred in the ordinary course of business; (v)
\nattachment or judgment Liens not giving rise to a Default or an Event of
\nDefault; (vi) easements, rights-of-way, restrictions and other similar charges
\nor encumbrances not interfering with the ordinary conduct of the business of the
\nCompany or any of its Subsidiaries; (vii) leases or subleases granted to others
\nnot interfering with the ordinary conduct of the business of the Company or any
\nof its Subsidiaries; (viii) Liens with respect to any Acquired Indebtedness,
\nprovided that such Liens only extend to assets that were subject to such Liens
\nprior to the acquisition of such assets by the Company or its Subsidiaries and,
\nwith respect to Indebtedness other than Indebtedness ranking pari passu with the
\nNotes, not incurred in anticipation or contemplation of such acquisition; (ix)
\nLiens securing Bank Debt or Refinancing Indebtedness, provided, in the case of
\nRefinancing Indebtedness, that such Liens only extend to the assets securing the
\nIndebtedness being refinanced and such refinanced Indebtedness was previously
\nsecured by such assets; (x) purchase money mortgages (including Capitalized
\nLease Obligations); (xi) Liens existing on the Issue Date; (xii) Liens on assets
\nof any Subsidiary of the Company securing Indebtedness of such Subsidiary,
\nprovided that such Indebtedness is permitted to be incurred by the terms of this
\nIndenture; (xiii) bankers’ liens with respect to the right of set-off arising in
\nthe ordinary course of business against amounts maintained in bank accounts or
\ncertificates of deposit in the name of the Company or any Subsidiary; (xiv) the
\ninterest of any issuer of a letter of credit in any cash or Eligible Investment
\ndeposited with or for the benefit of such issuer as collateral for such letter
\nof credit, provided that the Indebtedness so collateralized is permitted to be
\nincurred by the terms of this Indenture; (xv) any Lien consisting of a right of
\nfirst refusal or option to purchase the Company’s ownership interest in any
\nSubsidiary or to purchase assets of the Company or any Subsidiary of the
\nCompany, which right of first refusal or option is entered into in the ordinary
\ncourse of business; and (xvi) the Lien granted to the Trustee pursuant to the
\ntrust created pursuant to Article 9 hereof and any substantially equivalent Lien
\ngranted to the respective trustees under the indentures for other debt
\nsecurities of the Company.<\/p>\n
“Person” means any individual, corporation, partnership, joint
\nventure, incorporated or unincorporated association, joint-stock company, trust,
\nunincorporated organization or government or other agency or political
\nsubdivision thereof or other entity of any kind.<\/p>\n
“Preferred Stock” means with respect to any Person all Capital
\nStock of such Person which has a preference in liquidation or a preference with
\nrespect to the payment of dividends or distributions of operating profit or
\ncash.<\/p>\n
11<\/p>\n
“Qualified Institutional Buyer” or “QIB” shall have the
\nmeaning specified in Rule 144A.<\/p>\n
“Record Date” for interest payable on any Interest Payment
\nDate (except a date for payment of default interest) means the January 15 or
\nJuly 15 (whether or not a Business Day), as the case may be, immediately
\npreceding such Interest Payment Date.<\/p>\n
“Redemption Date” when used with respect to any Note to be
\nredeemed means the date fixed for such redemption pursuant to this Indenture.<\/p>\n
“Redemption Price” when used with respect to any Note to be
\nredeemed means the price fixed for such redemption pursuant to this Indenture.<\/p>\n
“Refinancing Indebtedness” means Indebtedness that is applied
\nto refund, refinance or extend any Existing Indebtedness (other than
\nIndebtedness under the 2000 Credit Agreement), provided that: (i) the
\nRefinancing Indebtedness is the obligation of the same Person (or if the
\nIndebtedness being refinanced is an obligation of one or more Subsidiaries of
\nthe Company, such Refinancing Indebtedness may be incurred by the Company or one
\nor more Subsidiaries of the Company) and is subordinated to the Notes, if at
\nall, to the same extent as the Indebtedness being refunded, refinanced or
\nextended; (ii) the Refinancing Indebtedness is scheduled to mature no earlier
\nthan the Indebtedness being refunded, refinanced or extended; (iii) the
\nRefinancing Indebtedness has a Weighted Average Life to Maturity at the time
\nsuch Refinancing Indebtedness is incurred that is equal to or greater than the
\nWeighted Average Life to Maturity of the portion of the Indebtedness being
\nrefunded, refinanced or extended; (iv) the Refinancing Indebtedness is secured
\nonly to the extent, if at all, and by the assets that the Indebtedness being
\nrefunded, refinanced or extended is secured; and (v) such Refinancing
\nIndebtedness is in an aggregate principal amount that is equal to or less than
\nthe aggregate principal amount then outstanding under the Indebtedness being
\nrefunded, refinanced or extended (except for issuance costs and increases in
\nAttributable Indebtedness due solely to increases in the present value
\ncalculations resulting from renewals or extensions of the terms of the
\nunderlying leases in effect on the Issue Date).<\/p>\n
“Registration Rights Agreement” means the Registration Rights
\nAgreement dated as of February 1, 2001 among the Company and the Initial
\nPurchasers.<\/p>\n
“Regulation S” means Regulation S promulgated under the
\nSecurities Act.<\/p>\n
“Regulation S Restricted Period” means, with respect to any
\nNote, the period of forty (40) consecutive days beginning on and including the
\nfirst day after the later of (i) the day on which such Note is first offered to
\nPersons other than distributors (as defined in Regulation S) in reliance on
\nRegulation S and (ii) the closing date of the offering of such Note.<\/p>\n
“Restricted Payment” means with respect to any Person: (i) the
\ndeclaration of any dividend or the making of any other payment or distribution
\nof cash, securities or other property or assets in respect of such Person’s
\nCapital Stock (except that a dividend payable solely in Capital Stock (other
\nthan Disqualified Stock) of such Person shall not constitute a Restricted
\nPayment); (ii) any payment on account of the purchase, redemption, retirement or
\nother acquisition for value of such Person’s or such Person’s Subsidiaries’
\nCapital Stock or any other payment or distribution made in respect thereof,
\neither directly or indirectly; (iii) any payment on account of the purchase,
\nredemption,<\/p>\n
12<\/p>\n
retirement, defeasance or other acquisition for value, prior to any scheduled
\nprincipal payment, sinking fund payment or Stated Maturity, of Subordinated
\nIndebtedness of the Company or its Subsidiaries; (iv) the incurrence, creation
\nor assumption of any guarantee of Indebtedness of any Affiliate (other than a
\nSubsidiary of the Company); or (v) the making of any Investment in any Person
\n(other than Permitted Investments); provided, however, that with respect to the
\nCompany and its Subsidiaries, Restricted Payments shall not include any payment
\ndescribed in clause (i), (ii) or (iii) above made (1) to the Company or any of
\nits Wholly Owned Subsidiaries by any of the Company’s Subsidiaries or (2) by the
\nCompany to any of its Wholly Owned Subsidiaries or (3) by any Subsidiary
\nprovided that the Company or another Subsidiary receives its proportionate share
\nthereof.<\/p>\n
“Restricted Security” means any Note (or beneficial interest
\ntherein) other than an Exchange Note (or beneficial interest therein), until
\nsuch time as: (i) such Note (or beneficial interest therein) has been
\ntransferred pursuant to an effective registration statement under the Securities
\nAct; (ii) such Note is a 144A Global Note and two years have passed since the
\nIssue Date; (iii) such Note is a Regulation S Global Note and the Regulation S
\nRestricted Period has expired; or (iv) the Private Placement legend therefor has
\notherwise been removed pursuant to Section 2.16(e) hereof or, in the case of a
\nbeneficial interest in a Global Note, such beneficial interest has been
\nexchanged for an interest in a Global Note not bearing a Private Placement
\nLegend.<\/p>\n
“Rule 144A” means Rule 144A promulgated under the Securities
\nAct.<\/p>\n
“Sale and Leaseback Transaction” means, with respect to any
\nPerson, an arrangement with any bank, insurance company or other lender or
\ninvestor or to which such lender or investor is a party, providing for the
\nleasing by such Person or any of its Subsidiaries of any property or asset of
\nsuch Person or any of its Subsidiaries which has been or is being sold or
\ntransferred by such Person or such Subsidiary to such lender or investor or to
\nany Person to whom funds have been or are to be advanced by such lender or
\ninvestor on the security of such property or asset.<\/p>\n
“Secretary’s Certificate” means a certificate signed by the
\nSecretary or any Assistant Secretary of the Company in his or her official (and
\nnot individual) capacity.<\/p>\n
“Securities Act” means the Securities Act of 1933, as amended.<\/p>\n
“Significant Subsidiary” means a Subsidiary of the Company
\nwhich at the time of determination either (i) had tangible assets which, as of
\nthe Company’s most recent quarterly consolidated balance sheet, constituted at
\nleast 5% of Consolidated Tangible Assets as of such date, or (ii) had revenues
\nfor the 12-month period ending on the date of the Company’s most recent
\nquarterly consolidated statement of income which constituted at least 5% of the
\nCompany’s total consolidated revenues for such period.<\/p>\n
“Stated Maturity” when used with respect to any security or
\nany installment of interest thereon, means that date specified in such security
\nas the fixed date on which the principal of such security or such installment of
\ninterest is due and payable.<\/p>\n
“Subordinated Indebtedness” of any Person means any
\nIndebtedness of such Person that is subordinated in right of payment to the
\nNotes.<\/p>\n
13<\/p>\n
“Subsidiary” of any Person means (i) any corporation of which
\nCommon Equity having ordinary voting power to elect a majority of the directors
\nof such corporation is owned by such Person directly or through one or more
\nother Subsidiaries of such Person and (ii) any entity other than a corporation
\nin which such Person, directly or indirectly, owns at least 50% of the Common
\nEquity of such entity and has the authority to manage such entity on a
\nday-to-day basis.<\/p>\n
“Trust Indenture Act” or “TIA” means the Trust Indenture Act
\nof 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this
\nIndenture (except as provided in Section 8.03 hereof).<\/p>\n
“Trust Officer” shall mean, when used with respect to the
\nTrustee, any officer within the corporate trust department of the Trustee,
\nincluding any vice president, assistant vice president, assistant treasurer,
\ntrust officer or any other officer of the Trustee who customarily performs
\nfunctions similar to those performed by the Persons who at the time shall be
\nsuch officers, respectively, or to whom any corporate trust matter is referred
\nbecause of such Person’s knowledge of and familiarity with the particular
\nsubject and who shall have direct responsibility for the administration of this
\nIndenture.<\/p>\n
“Trustee” means the party named as such in this Indenture
\nuntil a successor replaces it pursuant to this Indenture and thereafter means
\nthe successor.<\/p>\n
“U.S. Government Obligations” means (a) securities that are
\ndirect obligations of the United States of America for the payment of which its
\nfull faith and credit are pledged or (b) obligations of a Person controlled or
\nsupervised by and acting as an agency or instrumentality of the United States of
\nAmerica, the payment of which is unconditionally guaranteed as a full faith and
\ncredit obligation by the United States of America, which, in either case, are
\nnot callable or redeemable at the option of the issuer thereof, and shall also
\ninclude a depository receipt issued by a bank (as defined in Section 3(a)(2) of
\nthe Securities Act) as custodian with respect to any such U.S. Government
\nObligation or a specific payment of principal of or interest on any such U.S.
\nGovernment Obligation held by such custodian for the account of the holder of
\nsuch depository receipt; provided that (except as required by law) such
\ncustodian is not authorized to make any deduction from the amount payable to the
\nholder of such depository receipt from any amount received by the custodian in
\nrespect of the U.S. Government Obligation or a specific payment of principal or
\ninterest on any such U.S. Government Obligation held by such custodian for the
\naccount of the holder of such depository receipt.<\/p>\n
“Weighted Average Life to Maturity” means, when applied to any
\nIndebtedness or portion thereof at any date, the number of years obtained by
\ndividing (i) the then outstanding principal amount of such Indebtedness or
\nportion thereof (if applicable) into (ii) the sum of the products obtained by
\nmultiplying (a) the amount of each then remaining installment, sinking fund,
\nserial maturity or other required payment of principal, including payment at
\nfinal maturity, in respect thereof, by (b) the number of years (calculated to
\nthe nearest one-twelfth) that will elapse between such date and the making of
\nsuch payment.<\/p>\n
“Wholly Owned Subsidiary” of any Person means (i) a Subsidiary
\nof which 100% of the Common Equity (except for director’s qualifying shares or
\ncertain minority interests owned by other Persons solely due to local law
\nrequirements that there be more than one stockholder, but which interest is not
\nin excess of what is required for such purpose) is owned directly by such Person
\nor <\/p>\n
14<\/p>\n
through one or more other Wholly Owned Subsidiaries of such Person and (ii) any
\nentity other than a corporation in which such Person, directly or indirectly,
\nowns all of the Common Equity of such entity.<\/p>\n
Section 1.02. Other Definitions.<\/p>\n
The definitions of the following terms may be found in the
\nsections indicated as follows:<\/p>\n
Term Defined in Section<\/p>\n
“Accredited Investors”……………………………… 2.01
\n“Affiliate Transaction”…………………………….. 4.13
\n“Agent Members”……………………………………. 2.15
\n“Applicable Procedures”…………………………….. 2.16
\n“Asset Sale Offer”…………………………………. 4.12
\n“Asset Sale Payment Amount”…………………………. 4.12
\n“Asset Sale Purchase Price”…………………………. 4.12
\n“Bankruptcy Law”…………………………………… 6.01
\n“Business Day”…………………………………….. 11.07
\n“Change of Control Offer”…………………………… 4.15
\n“Change of Control Payment Date”…………………….. 4.15
\n“Change of Control Purchase Price”…………………… 4.15
\n“Clearstream”……………………………………… 2.01
\n“Covenant Defeasance”………………………………. 9.03
\n“Custodian”……. ………………………………… 6.01
\n“Depositary”………………………………………. 2.15
\n“Euroclear”……………………………………….. 2.01
\n“Event of Default”…………………………………. 6.01
\n“Excess Proceeds”………………………………….. 4.12
\n“Excess Proceeds Payment Date”………………………. 4.12
\n“Global Notes”…………………………………….. 2.01
\n“Legal Defeasance”…………………………………. 9.02
\n“Legal Holiday”……………………………………. 11.07
\n“make whole amount”………………………………… Exhibit A\/Exhibit B
\n“Net Proceeds Deficiency”…………………………… 4.12
\n“Non-payment Default”………………………………. 10.03
\n“Other Debt”………………………………………. 4.12
\n“Paying Agent”…………………………………….. 2.03
\n“Payment Blockage Notice”…………………………… 10.03
\n“Payment Blockage Period”…………………………… 10.03
\n“Payment Default”………………………………….. 10.03
\n“Private Placement Legend”………………………….. 2.17
\n“Registrar”……………………………………….. 2.03
\n“Regulation S Global Note”………………………….. 2.01
\n“Restricted Global Note”……………………………. 2.01
\n“Successor”……………………………………….. 5.01<\/p>\n
15<\/p>\n
Section 1.03. Incorporation by Reference of Trust Indenture Act.<\/p>\n
Whenever this Indenture refers to a provision of the TIA, the
\nportion of such provision required to be incorporated herein in order for this
\nIndenture to be qualified under the TIA is incorporated by reference in and made
\na part of this Indenture. Unless otherwise specified, terms used in this
\nIndenture that are defined by the TIA, defined in the TIA by reference to
\nanother statute or defined by Commission rule have the meanings therein assigned
\nto them.<\/p>\n
Section 1.04. Rules of Construction.<\/p>\n
Unless the context otherwise requires:<\/p>\n
(1) a term has the meaning assigned to it herein, whether
\n defined expressly or by reference;<\/p>\n
(2) an accounting term not otherwise defined has the meaning
\n assigned to it in accordance with GAAP;<\/p>\n
(3) “or” is not exclusive;<\/p>\n
(4) words in the singular include the plural, and in the
\n plural include the singular; and<\/p>\n
(5) words used herein implying any gender shall apply to every
\n gender.<\/p>\n
ARTICLE 2<\/p>\n
THE NOTES<\/p>\n
Section 2.01. Dating; Incorporation of Form in Indenture; Form of Notes.<\/p>\n
(a) Generally. The Initial Notes and the Trustee’s certificate
\nof authentication shall be substantially in the form of Exhibit A, and the
\nExchange Notes and the Trustee’s certificate of authentication shall be
\nsubstantially in the form of Exhibit B, each of which is incorporated in and
\nmade part of this Indenture with such appropriate insertions, substitutions and
\nother variations as are required or permitted by this Indenture. The Notes may
\nhave notations, legends or endorsements required by law, stock exchange rule or
\nusage all in a form approved by the Company. Each Note shall be dated the date
\nof its authentication.<\/p>\n
(b) Notes Sold Pursuant to Rule 144A. The Notes offered and
\nsold in their initial distribution in reliance on Rule 144A to Qualified
\nInstitutional Buyers shall be issued in the form of a permanent global note (the
\n“Restricted Global Note”) (which may be represented by more than one
\ncertificate, if so required by the Depositary’s rules regarding the maximum
\nprincipal amount to be represented by a single certificate), duly executed by
\nthe Company and authenticated by the Trustee as hereinafter provided. The
\nRestricted Global Note shall be registered in the name of the Depositary or its
\nnominee and deposited with the Trustee, at its Corporate Trust Office, as
\ncustodian for the Depositary on behalf of the purchasers of the Notes
\nrepresented thereby.<\/p>\n
16<\/p>\n
(c) Notes Sold Pursuant to Regulation S. The Notes offered and
\nsold in their initial distribution in reliance on Regulation S shall be issued
\nin the form of a permanent global note (the “Regulation S Global Note” and,
\ntogether with the Restricted Global Note, the “Global Notes”) (which may be
\nrepresented by more than one certificate, if so required by the Depositary’s
\nrules regarding the maximum principal amount to be represented by a single
\ncertificate), duly executed by the Company and authenticated by the Trustee as
\nhereinafter provided. The Regulation S Global Note shall be registered in the
\nname of the Depositary or its nominee and deposited with the Trustee, at its
\nCorporate Trust Office, as custodian for the Depositary for credit to the
\nrespective accounts of The Euroclear System (“Euroclear”) and Clearsteam
\nBanking, societe anonyme (“Clearstream”). Prior to the termination of the
\nRegulation S Restricted Period, beneficial interests in the Regulation S Global
\nNote may be held only through Euroclear and Clearstream.<\/p>\n
(d) Notes Sold to Institutional Accredited Investors. The
\nNotes offered and sold in their initial distribution in reliance on an exemption
\nfrom registration under the Securities Act (other than Rule 144A or Regulation
\nS) to institutional “accredited investors” (as defined in Rule 501(a)(1), (2),
\n(3) or (7) under the Securities Act (“Accredited Investors”)) shall be issued in
\ncertificated, fully registered form without coupons and only in denominations of
\n$250,000 and integral multiples of $1,000 in excess thereof, duly executed by
\nthe Company and authenticated by the Trustee as hereinafter provided.<\/p>\n
Section 2.02. Execution and Authentication; Appointment of Authenticating Agent.<\/p>\n
The Notes shall be executed on behalf of the Company by one or
\nmore Officers of the Company. Such signature may be either manual or facsimile.<\/p>\n
If an Officer whose signature is on a Note no longer holds
\nthat office at the time the Trustee authenticates the Note, the Note shall be
\nvalid nevertheless.<\/p>\n
A Note shall not be valid until the Trustee manually signs the
\ncertificate of authentication on the Note. Such signature shall be conclusive
\nevidence that the Note has been authenticated under this Indenture.<\/p>\n
The Trustee shall authenticate (i) Initial Notes for original
\nissue on the Issue Date in the aggregate principal amount not to exceed
\n$375,000,000, (ii) pursuant to the Exchange Offer, Exchange Notes from time to
\ntime for issue only in exchange for a like principal amount of Initial Notes and
\n(iii) subject to compliance with Section 4.11 hereof, one or more series of
\nNotes for original issue after the Issue Date (such Notes to be substantially in
\nthe form of Exhibit A or B hereto, as the case may be) in an unlimited amount
\n(and if in the form of Exhibit A hereto the same principal amount of Exchange
\nNotes in exchange therefor upon consummation of a registered exchange offer), in
\neach case upon written orders of the Company in the form of an Officers’
\nCertificate, which Officers’ Certificate shall, in the case of any issuance
\npursuant to clause (iii) above, certify that such issuance is in compliance with
\nSection 4.11 hereof. In addition, each such Officers’ Certificate shall specify
\nthe amount of Notes to be authenticated, the date on which the Notes are to be
\nauthenticated, whether the Notes are to be Initial Notes, Exchange Notes or
\nNotes issued under clause (iii) of the preceding sentence and the aggregate
\nprincipal amount of Notes outstanding on the date of authentication.<\/p>\n
17<\/p>\n
Except as provided in section 2.01(d), the Notes shall be
\nissuable only in definitive, fully registered form without coupons and only in
\nminimum denominations of $1,000 and integral multiples thereof.<\/p>\n
The Trustee, with the approval of the Company, may appoint an
\nauthenticating agent to authenticate Notes. Any such appointment shall be
\nevidenced by an instrument signed by an authorized officer of the Trustee, a
\ncopy of which shall be furnished to the Company. An authenticating agent may
\nauthenticate Notes whenever the Trustee may do so. Each reference in this
\nIndenture to authentication by the Trustee includes authentication by such
\nagent, and shall comply with this Indenture. An authenticating agent has the
\nsame right as an Agent to deal with the Company or an Affiliate.<\/p>\n
Section 2.03. Registrar and Paying Agent.<\/p>\n
The Company shall maintain an office or agency in the Borough
\nof Manhattan, The City of New York where (a) Notes may be presented or
\nsurrendered for registration of transfer or for exchange (“Registrar”), (b)
\nNotes may be presented or surrendered for payment (“Paying Agent”) and (c)
\nnotices and demands in respect of Notes and this Indenture may be served. The
\nRegistrar shall keep a register of the Notes and of their transfer and exchange.
\nThe Registrar shall provide the Company a current copy of such register from
\ntime to time upon request of the Company. The Company may have one or more
\nco-Registrars and one or more additional Paying Agents. The Company may change
\nany Paying Agent, Registrar or co-Registrar without notice to any Holder. The
\nCompany may not act as Paying Agent, but may act as Registrar or co-Registrar.<\/p>\n
The Company shall enter into an appropriate agency agreement
\nwith any Registrar or Paying Agent not a party to this Indenture, which shall
\nincorporate the provisions of the TIA. The agreement shall implement the
\nprovisions of this Indenture that relate to such Agent. The Company shall notify
\nthe Trustee in writing of the name and address of any such Agent. If the Company
\nfails to maintain a Registrar or Paying Agent, or agent for service of notices
\nand demands, or fails to give the foregoing notice, the Company shall notify the
\nTrustee and the Trustee shall to the extent that it is capable act as such for
\nso long as such failure continues.<\/p>\n
The Company initially appoints the Trustee as Registrar and
\nPaying Agent in the Borough of Manhattan, The City of New York.<\/p>\n
Section 2.04. Paying Agent To Hold Money in Trust.<\/p>\n
Before 10:00 A.M. New York City time on each payment date of
\nthe principal of and\/or interest on any Notes, the Company shall deposit with
\nthe Paying Agent a sum sufficient to pay such principal and interest so becoming
\ndue. The Company at any time may require a Paying Agent to pay all money held by
\nit to the Trustee together with a complete accounting of such sums, and the
\nTrustee may at any time during the continuance of any Event of Default under
\nSection 6.01(a) or (b) hereof, upon written request to a Paying Agent, require
\nsuch Paying Agent to forthwith pay to the Trustee all sums so held in trust by
\nsuch Paying Agent together with a complete accounting of such sums. Upon doing
\nso, the Paying Agent shall have no further liability for the money. Funds
\ndeposited with the Paying Agent may be invested as agreed from time to time by
\nthe Company and the Paying Agent. All payments made hereunder shall be in U.S.
\nlegal tender.<\/p>\n
18<\/p>\n
Section 2.05. Holder Lists.<\/p>\n
The Trustee shall preserve in as current a form as is
\nreasonably practicable the most recent list available to it of the names and
\naddresses of Holders. If the Trustee is not the Registrar, the Company shall
\nfurnish to the Trustee at least five Business Days before each Interest Payment
\nDate and the Stated Maturity Date and at such other times as the Trustee may
\nreasonably request in writing, a list in such form and as of such date as the
\nTrustee may require of the names and addresses of Holders.<\/p>\n
Section 2.06. [Intentionally Omitted].<\/p>\n
Section 2.07. Replacement Notes.<\/p>\n
If a mutilated Note is surrendered to the Trustee or if the
\nHolder of a Note claims that a Note has been lost, destroyed or wrongfully
\ntaken, the Company shall issue and the Trustee shall authenticate a replacement
\nNote if the Trustee’s requirements for replacement are met. An indemnity bond
\nmay be required by the Company or the Trustee that is sufficient in the judgment
\nof the Company and the Trustee to protect the Company, the Trustee or any Agent
\nfrom any loss which any of them may suffer if a Note is replaced and evidence to
\ntheir satisfaction of apparent loss, destruction or theft of such Note may be
\nrequired by the Company, the Trustee or any Agent. The Company and the Trustee
\nmay charge for their reasonable out-of-pocket expenses (including reasonable
\nattorneys’ fees and expenses and any applicable taxes) in replacing a Note
\npursuant to this Section 2.07. In the event any such mutilated, lost, destroyed
\nor wrongfully taken Note has become due and payable, the Company in its
\ndiscretion may pay such Note instead of issuing a new Note in replacement
\nthereof. If after the delivery of such new Note, a bona fide purchaser of the
\noriginal Note in lieu of which such new Note was issued presents for payment
\nsuch original Note, the Company and the Trustee shall be entitled to recover
\nsuch new Note from the person to whom it was delivered or any transferee
\nthereof, except a bona fide purchaser, and shall be entitled to recover upon the
\nsecurity or indemnity provided therefor to the extent of any loss, damage, cost
\nor expense incurred by the Company or the Trustee in connection therewith.<\/p>\n
Every replacement Note is an additional obligation of the
\nCompany.<\/p>\n
Section 2.08. Outstanding Notes.<\/p>\n
Notes outstanding at any time are all Notes authenticated by
\nthe Trustee except for those canceled by it, those delivered to it for
\ncancellation and those described in this Section 2.08 as not outstanding.<\/p>\n
A Note replaced pursuant to Section 2.07 hereof (other than a
\nmutilated Note surrendered for replacement) ceases to be outstanding unless and
\nuntil the Trustee receives proof satisfactory to it that such replaced Note is
\nheld by a protected purchaser.<\/p>\n
If a Paying Agent holds on a Redemption Date or at Stated
\nMaturity U.S. legal tender sufficient to pay the principal of, make-whole
\namount, if any, and accrued interest on Notes (or portions thereof) payable on
\nthat date, then on and after that date, such Notes (or portions thereof) cease
\nto be outstanding and interest on them ceases to accrue.<\/p>\n
19<\/p>\n
Section 2.09. Treasury Notes.<\/p>\n
In determining whether the Holders of the required principal
\namount of Notes have concurred in any direction, waiver, consent or notice,
\nNotes owned by the Company or any of its Affiliates shall be considered as
\nthough they are not outstanding, except that for the purposes of determining
\nwhether the Trustee shall be protected in relying on any such direction, waiver
\nor consent, only Notes which a Trust Officer of the Trustee actually knows are
\nso owned shall be so considered. The Company shall notify the Trustee, in
\nwriting, when it or any of its Affiliates repurchases or otherwise acquires
\nNotes and of the aggregate principal amount of such Notes so repurchased or
\notherwise acquired.<\/p>\n
Section 2.10. Temporary Notes.<\/p>\n
Until definitive Notes are ready for delivery, the Company may
\nprepare and the Trustee shall authenticate temporary Notes. Temporary Notes
\nshall be substantially in the form, and shall carry all rights and restrictions,
\nof definitive Notes but may have variations that the Company considers
\nappropriate for temporary Notes. Without unreasonable delay, the Company shall
\nprepare and the Trustee shall authenticate definitive Notes in exchange for
\ntemporary Notes upon surrender of such temporary Notes at the office or agency
\nmaintained pursuant to Section 2.03 hereof.<\/p>\n
Section 2.11. Cancellation.<\/p>\n
The Company at any time may deliver Notes to the Trustee for
\ncancellation. The Registrar and the Paying Agent shall forward to the Trustee
\nany Notes surrendered to them for transfer, exchange or payment. The Trustee
\nshall cancel all Notes surrendered for transfer, exchange, payment or
\ncancellation and, unless the Company instructs the Trustee in writing to deliver
\nthe Notes to the Company, shall dispose of such Notes in accordance with its
\nnormal practice. Subject to Section 2.07 hereof, the Company may not issue new
\nNotes to replace Notes in respect of which it has previously paid all principal,
\nmake-whole amount, if any, and interest accrued thereon, or delivered to the
\nTrustee for cancellation. The Trustee shall provide the Company with a list of
\nall Notes that have been canceled from time to time as requested in writing by
\nthe Company. If the Company shall acquire any of the Notes, such acquisition
\nshall not operate as a redemption or satisfaction of the Indebtedness
\nrepresented by such Notes unless and until the same are surrendered to the
\nTrustee for cancellation pursuant to this Section 2.07.<\/p>\n
Section 2.12. Defaulted Interest.<\/p>\n
If the Company defaults in a payment of principal or interest
\non the Notes, it shall pay interest on overdue principal and on overdue
\ninstallments of interest (without regard to any applicable grace periods) from
\ntime to time on demand at the rate per annum borne by the Notes, to the extent
\nlawful.<\/p>\n
If the Company defaults in a payment of interest on the Notes,
\nit shall pay the defaulted interest, plus (to the extent lawful) any interest
\npayable on the defaulted interest, to the Persons who are Holders on a
\nsubsequent special Record Date, which date shall be the fifteenth day next
\npreceding the date fixed by the Company for the payment of defaulted interest or
\nthe next succeeding Business Day if such date is not a Business Day. At least 15
\ndays before the subsequent special Record Date, the Company shall mail to each
\nHolder, as of a recent date selected by the<\/p>\n
20<\/p>\n
Company, with a copy to the Trustee, a notice that states the subsequent special
\nRecord Date, the payment date and the amount of defaulted interest, and interest
\npayable on such defaulted interest, if any, to be paid.<\/p>\n
Notwithstanding the foregoing, any interest which is paid
\nprior to the expiration of the 30-day period set forth in Section 6.01(a) hereof
\nshall be paid to Holders as of the Record Date for the Interest Payment Date for
\nwhich interest has not been paid.<\/p>\n
Section 2.13. Deposit of Moneys; Payments.<\/p>\n
Prior to 10:00 A.M., New York City time, on the relevant
\nInterest Payment Date, Stated Maturity date, Redemption Date, Change of Control
\nPurchase Date and Excess Proceeds Payment Date, the Company shall have deposited
\nwith the Paying Agent in immediately available funds money sufficient to make
\nall cash payments due on such Interest Payment Date, Stated Maturity date,
\nRedemption Date, Change of Control Purchase Date and Excess Proceeds Payment
\nDate, as the case may be (or if any such date is not a Business Day, the first
\npreceding Business Day). The principal and interest on Global Notes shall be
\npayable to the Depositary or its nominee, as the case may be, as the sole
\nregistered owner and the sole holder of the Global Notes represented thereby.
\nThe principal and interest on Certificated Notes, if any, shall be payable at
\nthe office of the Paying Agents. The Paying Agents shall pay the Company any
\nexcess cash remaining on deposit after all payments have been made with respect
\nto a given Interest Payment Date, Stated Maturity date, Redemption Date, Change
\nof Control Purchase Date or Excess Proceeds Payment Date, as the case may be.
\nAll payments made hereunder shall be in U.S. legal tender.<\/p>\n
Section 2.14. “CUSIP” Number.<\/p>\n
The Company in issuing the Notes may use “CUSIP” number(s) and
\nthe Trustee shall use the “CUSIP” numbers(s) in notices of redemption or
\nexchange as a convenience to Holders; provided that neither the Company nor the
\nTrustee shall have any responsibility for any defect in the “CUSIP” number that
\nappears on any Note, check, advice or payment or redemption notice, and any such
\nnotice may state that no representation is made as to the correctness or
\naccuracy of the “CUSIP” number(s) printed in the notice or on the Notes, and
\nthat reliance may be placed only on the other identification numbers printed on
\nthe Notes and any such redemption or exchange shall not be affected by any
\ndefect in or omission of such number(s). The Company shall promptly notify the
\nTrustee of any changes in “CUSIP” numbers.<\/p>\n
Section 2.15. Depositary.<\/p>\n
(a) The Company hereby appoints DTC to act as depositary (in
\nsuch capacity, together with its successors in such capacity, the “Depositary”)
\nwith respect to the Global Notes. The Trustee shall act as custodian of the
\nGlobal Notes for the Depositary. So long as the Depositary or its nominee, Cede
\n& Co., is the registered owner of the Global Notes, it shall be considered the
\nHolder of the Notes represented thereby for all purposes hereunder and under the
\nGlobal Notes, and neither any members of, or participants in, the Depositary
\n(“Agent Members”) nor any other Persons on whose behalf Agent Members may act
\nshall have any rights hereunder with respect to the Global Notes or under the
\nGlobal Notes. Notwithstanding the foregoing, nothing herein shall prevent the
\nCompany, the Trustee or any agent of the Company or the Trustee from giving
\neffect to any written certification, proxy or other authorization furnished by
\nthe Depositary or its nominee, as the case may be, or impair, as between the<\/p>\n
21<\/p>\n
Depositary, its Agent Members and any other Person on whose behalf an Agent
\nMember may act, the operation of customary practices of such Persons governing
\nthe exercise of the rights of a Holder of any Note.<\/p>\n
(b) The Company may remove or replace DTC or any successor as
\nDepositary for any reason upon thirty (30) days’ notice to DTC or such
\nsuccessor. The Holders shall have no right to a depositary for the Notes.<\/p>\n
(c) Notwithstanding any other provision of this Indenture or
\nthe Notes, so long as DTC or its nominee is the registered owner of the Notes:<\/p>\n
(i) the provisions of the DTC Letter of Representations
\n shall control over the provisions of this Indenture with
\n respect to the matters covered thereby;<\/p>\n
(ii) presentation of Notes to the Trustee at redemption
\n or at maturity shall be deemed made to the Trustee when the
\n right to exercise ownership rights in the Notes through DTC
\n or Agent Members is transferred by DTC on its books; and<\/p>\n
(iii) DTC may present notices, approvals, waivers or
\n other communications required or permitted to be made by
\n Holders under this Indenture on a fractionalized basis on
\n behalf of some or all of those Persons entitled to exercise
\n ownership rights in the Notes through DTC or Agent Members.<\/p>\n
Section 2.16. Registration of Transfers and Exchanges.<\/p>\n
(a) Transfer and Exchange Generally. (i) The Notes are
\n transferable only upon the surrender thereof for registration of
\n transfer. When a Note is presented to the Registrar with a duly
\n executed instrument of assignment and transfer substantially in the
\n form of assignment attached to Exhibit A or B, as applicable, the
\n Registrar shall register the transfer as requested if such transfer
\n complies with the provisions hereof. Prior to the due presentation for
\n registration of transfer of any Note, the Person in whose name such
\n Note is registered shall be treated as the absolute owner of such Note
\n for the purpose of receiving payment of principal of, make-whole amount
\n (if any) and interest on such Note (whether or not such payment is
\n overdue) and for all other purposes whatsoever, notwithstanding any
\n notice to the contrary. Registration of transfer of any Note by the
\n Registrar shall be deemed to be an acknowledgment of such transfer by
\n the Company.<\/p>\n
(ii) When Notes are presented to the Registrar with a
\n written request to exchange such Notes for Notes of any authorized
\n denominations and of a like aggregate principal amount, the Registrar
\n shall make the exchange as requested if such exchange complies with the
\n provisions of this Section 2.16(a).<\/p>\n
(iii) Following any request for transfer or exchange
\n of one or more Notes made in compliance with clauses (i) or (ii), as
\n the case may be, of this Section 2.16(a), the Company shall execute,
\n and the Trustee shall authenticate and deliver, one or more new Notes
\n of a like principal amount and in such authorized denominations as may
\n be requested. Any exchange or transfer shall be without charge, except
\n that the Company may require payment by the Holder of a sum sufficient
\n to cover any tax or other governmental charge that may be<\/p>\n
22<\/p>\n
imposed in relation to a transfer or exchange other than any exchange
\n pursuant to Sections 2.10, 3.06, 4.12, 4.15 or 8.05 hereof.<\/p>\n
(iv) Transfers or exchanges of the Global Notes and beneficial
\n interests therein shall be subject to the provisions of Section
\n 2.16(b) and the rules of the Depositary. Transfers or exchanges of
\n Certificated Notes shall be subject to the provisions of Section
\n 2.16(c).<\/p>\n
(v) Except as otherwise provided herein, the Global Notes and
\n each Certificated Note shall bear the Private Placement Legend as set
\n forth in Section 2.17. By its acceptance of any Note bearing the
\n Private Placement Legend, whether upon original issuance or subsequent
\n transfer, each Holder of such a Note acknowledges the restrictions on
\n transfer of such Note set forth in this Indenture and in the Private
\n Placement Legend and agrees that it will transfer such Note only as
\n provided in this Indenture. Upon the specific written request of a
\n Holder to remove the Private Placement Legend, the Registrar shall
\n authenticate and deliver a Note with an equivalent principal amount
\n not bearing the Private Placement Legend if there is provided to the
\n Company evidence reasonably satisfactory to the Company (which may, at
\n the Company’s request, include an Opinion of Counsel) that neither the
\n Private Placement Legend nor the restrictions on transfer set forth
\n therein are required to ensure compliance with the Securities Act.
\n Upon a written request for the registration of transfer or exchange of
\n a Note bearing the Private Placement Legend pursuant to an effective
\n registration statement under the Securities Act and in accordance with
\n any applicable securities laws of any state of the United States, the
\n Registrar shall authenticate and deliver a Note with an equivalent
\n principal amount not bearing the Private Placement Legend. If the
\n Private Placement Legend has been removed from a Note as provided in
\n this clause (v), the transfer of such Note shall not be subject to the
\n restrictions on transfer set forth in the Private Placement Legend,
\n and no other Note issued in exchange for all or any part of such Note
\n shall bear the Private Placement Legend unless the Company has
\n reasonable cause to believe that such other Note is a Restricted
\n Security and instructs the Registrar in writing to cause the Private
\n Placement Legend to appear thereon.<\/p>\n
(vi) None of the Company or the Trustee or the Registrar shall be
\n liable for any delay by the Depositary in identifying the beneficial
\n owners of the Notes, and each such Person may conclusively rely on,
\n and shall be protected in relying on, instructions from the Depositary
\n for all purposes (including with respect to the registration and
\n delivery, and the respective principal amounts, of any Notes to be
\n issued).<\/p>\n
(vii) Prior to the due presentation for registration of transfer
\n of any Note, the Company, the Trustee, the Paying Agent, the Registrar
\n or any co-Registrar may deem and treat the Person in whose name a Note
\n is registered as the absolute owner of such Note for the purpose of
\n receiving payment of principal of, make-whole amount, if any, and
\n interest, if any, on such Note and for all other purposes whatsoever,
\n whether or not such Note is overdue, and none of the Company, the
\n Trustee, the Paying Agent, the Registrar or any co-Registrar shall be
\n affected by notice to the contrary. So long as the Depositary or its
\n nominee is the Holder of a Global Note, the Depositary or such
\n nominee, as the case may be, will be considered the sole owner or
\n Holder of the Notes represented by such Global Note for all purposes
\n hereunder and under the Notes. Any Holder of a Global Note, and each
\n Person with an interest in such Global Note, shall, by acceptance of
\n such Global Note or such interest, agree that transfers of the
\n beneficial interests in such Global Note may be effected only through
\n a book-entry system<\/p>\n
23<\/p>\n
maintained by the Holder of such Global Note (or its agent) and that
\n ownership of a beneficial interest in such Global Note shall be
\n required to be reflected in a book entry.<\/p>\n
(viii) Any Note issued upon any transfer or exchange pursuant to
\n this Section 2.16 will evidence the same debt and will be entitled to
\n the same benefits and, unless otherwise provided for in this
\n Indenture, subject to the same restrictions under this Indenture as
\n the Note or Notes surrendered upon such transfer or exchange.<\/p>\n
(ix) The Registrar shall not be required to register the transfer
\n of or exchange any Note (A) selected for redemption in whole or in
\n part pursuant to Article 3, except the unredeemed portion of any Note
\n being redeemed in part, (B) for a period beginning fifteen (15) days
\n before the mailing of a notice of redemption of Notes and ending on
\n the date of such mailing or (C) between a Record Date and the next
\n succeeding Interest Payment Date.<\/p>\n
(b) Transfers and Exchanges of the Global Notes and Beneficial
\n Interests Therein.
\n (i) Subject to clauses (ii) through (viii) of this Section
\n 2.16(b), transfers of the Global Notes shall be limited to transfers
\n in whole, but not in part, to the Depositary, its successors or their
\n respective nominees. So long as the Global Notes remain outstanding
\n and are held by or on behalf of the Depositary, transfers and
\n exchanges of beneficial interests in the Global Notes shall be made in
\n accordance with the provisions of this Section 2.16(b) and in
\n accordance with the rules and procedures of the Depositary to the
\n extent applicable (the “Applicable Procedures”).<\/p>\n
(ii) No restrictions shall apply with respect to the transfer or
\n registration of transfer of (x) a beneficial interest in the
\n Restricted Global Note to a transferee that takes delivery in the form
\n of a beneficial interest in the Restricted Global Note or (y) a
\n beneficial interest in the Regulation S Global Note to a transferee
\n that takes delivery in the form of a beneficial interest in the
\n Regulation S Global Note; provided that any transfer described in this
\n clause (ii) shall be made in accordance with the Applicable
\n Procedures.<\/p>\n
(iii) Any transfer of a beneficial interest in the Restricted
\n Global Note to a transferee that will take delivery in the form of a
\n beneficial interest in the Regulation S Global Note prior to the
\n termination of the Regulation S Restricted Period shall be registered,
\n subject to the Applicable Procedures, only in accordance with this
\n clause (iii). At any time prior to the termination of the Regulation S
\n Restricted Period, upon (x) receipt by the Registrar of (A)
\n instructions given in accordance with the Applicable Procedures from
\n the Depositary or its nominee on behalf of an owner of a beneficial
\n interest in the Restricted Global Note to transfer such beneficial
\n interest to a Person that will take delivery in the form of a
\n beneficial interest in the Regulation S Global Note, (B) a written
\n order of the Depositary or its nominee given in accordance with the
\n Applicable Procedures containing account and other information with
\n respect to such transfer and (C) a certificate of the transferor of
\n the beneficial interest in the Restricted Global Note substantially in
\n the form of Exhibit D and (y) satisfaction of all other applicable
\n conditions imposed by this Indenture and the Applicable Procedures,
\n the Registrar shall (1) reflect in the register for the Notes a
\n decrease in the principal amount of the Restricted Global Note and an
\n increase in the principal amount of the Regulation S Global Note, each
\n such adjustment to be equal to the beneficial interest transferred
\n pursuant to this clause (iii) and (2) instruct the Depositary to make
\n the corresponding adjustment to its records<\/p>\n
24<\/p>\n
and debit the account of the appropriate Agent Members in accordance
\n with the Applicable Procedures.<\/p>\n
(iv) Any transfer of a beneficial interest in the Restricted
\n Global Note to a transferee that will take delivery in the form of a
\n beneficial interest in the Regulation S Global Note subsequent to the
\n termination of the Regulation S Restricted Period shall be registered,
\n subject to the Applicable Procedures, only in accordance with this
\n clause (iv). At any time subsequent to the termination of the
\n Regulation S Restricted Period, upon (x) receipt by the Registrar of
\n (A) instructions given in accordance with the Applicable Procedures
\n from the Depositary or its nominee on behalf of an owner of a
\n beneficial interest in the Restricted Global Note to transfer such
\n beneficial interest to a Person that will take delivery in the form of
\n a beneficial interest in the Regulation S Global Note, (B) a written
\n order of the Depositary or its nominee given in accordance with the
\n Applicable Procedures containing account and other information with
\n respect to such transfer and (C) a certificate of the transferor of
\n the beneficial interest in the Restricted Global Note substantially in
\n the form of Exhibit D (if transfer is made in reliance on Regulation
\n S) or Exhibit E (if transfer is made in reliance on Rule 144) and (y)
\n satisfaction of all other conditions imposed by the Applicable
\n Procedures, the Registrar shall (1) reflect in the register for the
\n Notes a decrease in the principal amount of the Restricted Global Note
\n and an increase in the principal amount of the Regulation S Global
\n Note, each such adjustment to equal the principal amount of the
\n beneficial interest transferred pursuant to this clause (iv), and (2)
\n instruct the Depositary to make the corresponding adjustment to its
\n records and debit and credit the accounts of the appropriate Agent
\n Members in accordance with the Applicable Procedures.<\/p>\n
(v) Any transfer of a beneficial interest in the Regulation S
\n Global Note to a transferee that will take delivery in the form of a
\n beneficial interest in the Restricted Global Note, either prior or
\n subsequent to the termination of the Regulation S Restricted Period,
\n shall be registered, subject to the Applicable Procedures, only in
\n accordance with this clause (v). At any time upon (x) receipt by the
\n Registrar of (A) instructions given in accordance with the Applicable
\n Procedures from the Depositary or its nominee on behalf of an owner of
\n a beneficial interest in the Regulation S Global Note to transfer such
\n beneficial interest to a Person that will take delivery in the form of
\n a beneficial interest in the Restricted Global Note, (B) a written
\n order of the Depositary or its nominee given in accordance with the
\n Applicable Procedures containing account and other information with
\n respect to such transfer and (C) a certificate of the transferor of
\n the beneficial interest in the Regulation S Global Note substantially
\n in the form of Exhibit C and (y) satisfaction of all other conditions
\n imposed by and the Applicable Procedures, the Registrar shall (1)
\n reflect in the register for the Notes a decrease in the principal
\n amount of the Regulation S Global Note and an increase in the
\n principal amount of the Restricted Global Note, each such adjustment
\n to equal the principal amount of the beneficial interest transferred
\n pursuant to this clause (v), and (2) instruct the Depositary to make
\n the corresponding adjustment to its records and debit and credit the
\n accounts of the appropriate Agent Members in accordance with the
\n Applicable Procedures.<\/p>\n
(vi) Any transfer of a beneficial interest in the Restricted
\n Global Note to a transferee that will take delivery in the form of one
\n or more Certificated Notes shall be registered, subject to the
\n Applicable Procedures, only in accordance with this clause (vi). At
\n any time upon (x) receipt by the Registrar of (A) instructions given
\n in accordance with the Applicable Procedures from the Depositary or
\n its nominee on behalf of an owner of a<\/p>\n
25<\/p>\n
beneficial interest in the Restricted Global Note to transfer such
\n beneficial interest to a Person that will take delivery in the form of
\n one or more Certificated Notes, (B) a written order of the Depositary
\n or its nominee given in accordance with the Applicable Procedures
\n containing account and other information with respect to such
\n transfer, (C) a certificate of such Person substantially in the form
\n of Exhibit F and (D) unless the Restricted Global Note does not bear a
\n Private Placement Legend, an Opinion of Counsel to the effect that
\n such transfer is in compliance with the Securities Act, and (y)
\n satisfaction of all other applicable conditions imposed by this
\n Indenture and the Applicable Procedures, (1) the Registrar shall (A)
\n reflect in the register for the Notes a decrease in the principal
\n amount of the Restricted Global Note in an amount equal to the
\n beneficial interest transferred pursuant to this clause (vi) and (B)
\n instruct the Depositary to make the corresponding adjustment to its
\n records and debit the account of the appropriate Agent Member in
\n accordance with the Applicable Procedures, and (2) the Company shall
\n execute and the Trustee shall authenticate and deliver to or on behalf
\n of such Person one or more Certificated Notes of like tenor and amount
\n and, unless the Restricted Global Note does not bear a Private
\n Placement Legend, bearing the Private Placement Legend.<\/p>\n
(vii) Any transfer of a beneficial interest in the Regulation S
\n Global Note to a transferee that will take delivery in the form of one
\n or more Certificated Notes prior to the termination of the Regulation
\n S Restricted Period shall be registered, subject to the Applicable
\n Procedures, only in accordance with this clause (vii). At any time
\n prior to the termination of the Regulation S Restricted Period, upon
\n (x) receipt by the Registrar of (A) instructions given in accordance
\n with the Applicable Procedures from the Depositary or its nominee on
\n behalf of an owner of a beneficial interest in the Regulation S Global
\n Note to transfer such beneficial interest to a Person that will take
\n delivery in the form of one or more Certificated Notes, (B) a written
\n order of the Depositary or its nominee given in accordance with the
\n Applicable Procedures containing account and other information with
\n respect to such transfer, (C) a certificate of such Person
\n substantially in the form of Exhibit F and (D) an Opinion of Counsel
\n to the effect that such transfer is in compliance with the Securities
\n Act and (y) satisfaction of all other conditions imposed by the
\n Applicable Procedures, (1) the Registrar shall (A) reflect in the
\n register for the Notes a decrease in the principal amount of the
\n Regulation S Global Note in an amount equal to the beneficial interest
\n transferred pursuant to this clause (vii) and (B) instruct the
\n Depositary to make the corresponding adjustment to its records and
\n debit the account of the appropriate Agent Member in accordance with
\n the Applicable Procedures, and (2) the Company shall execute and the
\n Trustee shall authenticate and deliver to or on behalf of such Person
\n one or more Certificated Notes of like tenor and amount bearing the
\n Private Placement Legend.<\/p>\n
(viii) Notwithstanding any contrary provision contained herein,
\n Certificated Notes shall be issued in exchange for the beneficial
\n interests in a Global Note if at any time: (x) the Company advises the
\n Trustee in writing that the Depositary is unwilling or unable to
\n continue as depositary for such Global Note or is no longer eligible
\n to act as such and in each case a successor depositary is not
\n appointed by the Company within ninety (90) days of receipt by the
\n Company of notice of such inability; (y) the Company, at its option,
\n elects to terminate the book-entry system through the Depositary with
\n respect to such Global Note; or (z) after the occurrence of an Event
\n of Default, beneficial owners holding interests representing a
\n majority of the aggregate principal amount of Notes represented by
\n such Global Note advise the Trustee in writing through the Depositary
\n that the continuation of a book-entry system through the Depositary is
\n no longer in such beneficial owners’ best interests. Upon the
\n occurrence of any<\/p>\n
26<\/p>\n
of the events set forth in clauses (x), (y) and (z) immediately above,
\n the Trustee, upon receipt of written notice thereof and a list of all
\n Persons that hold a beneficial interest in such Global Note, shall
\n notify, through the appropriate Agent Members at the expense of the
\n Company, all Persons that hold a beneficial interest in such Global
\n Note of the issuance of Certificated Notes. Upon surrender by the
\n Trustee, as custodian for the Depositary, of such Global Note and
\n receipt from the Depositary of instructions for re-registration, the
\n Company shall execute and the Trustee, upon the written instructions
\n of the Company, shall authenticate and deliver Certificated Notes of
\n like tenor and amount and, unless such Global Note does not bear a
\n Private Placement Legend, bearing the Private Placement Legend.
\n Certificated Notes issued in exchange for beneficial interests in such
\n Global Note pursuant to this clause (viii) shall be registered in such
\n names and in such authorized denominations as the Depositary, pursuant
\n to instructions from Agent Members or otherwise, shall instruct the
\n Trustee.<\/p>\n
(c) Transfers and Exchanges of Certificated Notes. (i) Any
\n transfer of a Certificated Note bearing the Private Placement Legend to
\n a transferee that takes delivery in the form of one or more
\n Certificated Notes shall be registered only in accordance with this
\n clause (i). Upon (x) surrender of any Certificated Note bearing the
\n Private Placement Legend at the office of the Registrar, together with
\n (A) an executed instrument of assignment of such Certificated Note
\n substantially in the form of assignment attached to such Certificated
\n Note, (B) a certificate of the transferee of such Certificated Note
\n substantially in the form of Exhibit F and (C) an Opinion of Counsel to
\n the effect that such transfer is in compliance with the Securities Act
\n and (y) satisfaction of all other applicable conditions imposed by this
\n Indenture, (1) the Trustee shall register such transfer and (2) the
\n Company shall execute and the Trustee shall authenticate and deliver in
\n the name of the transferee one or more Certificated Notes of any
\n authorized denomination in the same aggregate principal amount and of
\n the same maturity as the transferred Certificated Note, each such new
\n Certificated Note bearing the Private Placement Legend; provided,
\n however, that Certificated Notes so delivered shall not be required to
\n bear the Private Placement Legend if there is provided to the Company
\n evidence reasonably satisfactory to the Company (which may, at the
\n Company’s request, include an Opinion of Counsel) that neither the
\n Private Placement Legend nor the restrictions on transfer set forth
\n therein are required to ensure compliance with the Securities Act.<\/p>\n
(ii) Any transfer of a Certificated Note not bearing
\n the Private Placement Legend to a transferee that takes delivery in the
\n form of one or more Certificated Notes shall be registered only in
\n accordance with this clause (ii). Upon (x) surrender of any
\n Certificated Note not bearing the Private Placement Legend at the
\n office of the Registrar, together with an executed instrument of
\n assignment of such Certificated Note substantially in the form of
\n assignment attached to such Certificated Note, and (y) satisfaction of
\n all other applicable conditions imposed by this Indenture, (A) the
\n Trustee shall register such transfer and (B) the Company shall execute
\n and the Trustee shall authenticate and deliver in the name of the
\n transferee one or more Certificated Notes of any authorized
\n denomination in the same aggregate principal amount and of the same
\n maturity as the transferred Certificated Note. Each such new
\n Certificated Note may at the request of the transferee, but shall not
\n be required to, bear the Private Placement Legend.<\/p>\n
(iii) Any transfer of a Certificated Note bearing the
\n Private Placement Legend to a transferee that takes delivery in the
\n form of a beneficial interest in a Global Note shall be registered only
\n in accordance with this clause (iii). Upon (x) surrender of any<\/p>\n
27<\/p>\n
Certificated Note bearing the Private Placement Legend at the office of
\n the Registrar, together with (A) an executed instrument of assignment
\n of such Certificated Note substantially in the form of assignment
\n attached to such Certificated Note, (B) written instructions from the
\n transferor that such Certificated Note shall be registered in the name
\n of the Depositary or its nominee and (C) a certificate of the
\n transferor of such Certificated Note substantially in the form of
\n Exhibit D (if the transferee will take delivery in the form of a
\n beneficial interest in the Regulation S Global Note) or Exhibit C (if
\n the transferee will take delivery in the form of a beneficial interest
\n in the Restricted Global Note), and (y) satisfaction of all other
\n applicable conditions imposed by this Indenture and the Applicable
\n Procedures, the Registrar shall (1) register such transfer and cancel
\n such Certificated Note, (2) reflect in the register for the Notes an
\n increase in the appropriate Global Note in an amount equal to the
\n Certificated Note transferred pursuant to this clause (iii) and (3)
\n instruct the Depositary to make the corresponding adjustment to its
\n records and credit the account of the appropriate Agent Member in
\n accordance with the Applicable Procedures.<\/p>\n
(iv) Any transfer of a Certificated Note not bearing
\n the Private Placement Legend to a transferee that takes delivery in the
\n form of a beneficial interest in a Global Note shall be registered only
\n in accordance with this clause (iv). Upon (x) surrender of a
\n Certificated Note not bearing the Private Placement Legend at the
\n office of the Registrar, together with (A) an executed instrument of
\n assignment of such Certificated Note substantially in the form of
\n assignment attached to such Certificated Note and (B) written
\n instructions from the transferor that such Certificated Note shall be
\n registered in the name of the Depositary or its nominee, and (y)
\n satisfaction of all other applicable conditions imposed by this
\n Indenture and the Applicable Procedures, the Registrar shall (1)
\n register such transfer and cancel such Certificated Note, (2) reflect
\n in the register for the Notes an increase in the Global Note in an
\n amount equal to the Certificated Note transferred pursuant to this
\n clause (iv) and (3) instruct the Depositary to make the corresponding
\n adjustment to it’s records and credit the account of the appropriate
\n Agent Member in accordance with the Applicable Procedures.<\/p>\n
(v) Any exchange of a Certificated Note for one or
\n more Certificated Notes in different authorized denominations shall be
\n registered only in accordance with this clause (v). Upon (x) surrender
\n of a Certificated Note at the office of the Registrar, together with a
\n written request to exchange such Certificated Note for one or more
\n Certificated Notes in different authorized denominations, and (y)
\n satisfaction of all other applicable conditions imposed by this
\n Indenture, (A) the Registrar shall register such exchange and (B) the
\n Company shall execute and the Trustee shall authenticate and deliver in
\n the name of the registered owner one or more Certificated Notes in any
\n authorized denomination with the same aggregate principal amount and
\n maturity date.<\/p>\n
(vi) Any exchange of a Certificated Note for a
\n beneficial interest in a Global Note shall be registered only in
\n accordance with this clause (vi). Upon (x) surrender of a Certificated
\n Note at the office of the Registrar, together with (A) a written
\n request to exchange such Certificated Note for a beneficial interest in
\n a Global Note, (B) written instructions from the registered owner that
\n such Certificated Note shall be registered in the name of the
\n Depositary or its nominee and (C) a certificate of the registered owner
\n of such Certificated Note substantially in the form of Exhibit D (if
\n the Certificated Note is being exchanged for a beneficial interest in
\n the Regulation S Global Note) or Exhibit C (if the Certificated Note is
\n being exchanged for a beneficial interest in the Restricted Global
\n Note)<\/p>\n
28<\/p>\n
and (y) satisfaction of all other applicable conditions imposed by
\n this Indenture and the Applicable Procedures, the Registrar shall (1)
\n register such exchange and cancel such Certificated Note, (2) reflect
\n in the register for the Notes an increase in the Restricted Global
\n Note in an amount equal to the Certificated Note exchanged pursuant to
\n this clause (vi) and (3) instruct the Depositary to make the
\n corresponding adjustment to its records and credit the account of the
\n appropriate Agent Member in accordance with the Applicable Procedures.<\/p>\n
Section 2.17. Restrictive Legends.<\/p>\n
Each Note that constitutes a Restricted Security shall bear
\nthe following legend (the “Private Placement Legend”) on the face thereof until
\nFebruary 1, 2003, unless otherwise agreed to by the Company and the Holder
\nthereof:<\/p>\n
THE NOTE (OR ITS PREDECESSORS) EVIDENCED HEREBY WAS
\n ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM, OR NOT SUBJECT TO,
\n REGISTRATION UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF
\n 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE NOTE EVIDENCED HEREBY
\n MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
\n SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM OR IN A
\n TRANSACTION NOT SUBJECT THERETO. EACH PURCHASER OF THE NOTE EVIDENCED
\n HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE
\n EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
\n PROVIDED BY RULE 144A THEREUNDER OR ANOTHER EXEMPTION UNDER THE
\n SECURITIES ACT. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE
\n BENEFIT OF THE COMPANY THAT (A) SUCH NOTE MAY BE RESOLD, PLEDGED OR
\n OTHERWISE TRANSFERRED ONLY (i)(a) TO A PERSON THE SELLER REASONABLY
\n BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
\n UNDER THE SECURITIES ACT) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
\n ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
\n THE RESALE, PLEDGE OR TRANSFER IS BEING MADE IN A TRANSACTION MEETING
\n THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (b) IN A
\n TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES
\n ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION
\n MEETING THE REQUIREMENTS OF RULE 904 OF REGULATION S UNDER THE
\n SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
\n REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, PROVIDED THAT IN THE
\n CASE OF A TRANSFER, PLEDGE OR SALE PURSUANT TO THIS CLAUSE (d) SUCH
\n TRANSFER IS SUBJECT TO THE RECEIPT BY THE REGISTRAR (AND THE COMPANY,
\n IF IT SO REQUESTS) OF A CERTIFICATION OF THE TRANSFEROR AND AN OPINION
\n OF COUNSEL TO THE EFFECT THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
\n SECURITIES ACT, (ii) TO THE COMPANY OR ITS AFFILIATES OR (iii) PURSUANT
\n TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT<\/p>\n
29<\/p>\n
AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
\n OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
\n AND THE INDENTURE GOVERNING THE NOTES AND (B) THE HOLDER WILL, AND
\n EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF
\n THE NOTE EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
\n ABOVE.<\/p>\n
Each Global Note shall also bear the following legend:<\/p>\n
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
\n HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
\n OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS NOTE IS
\n NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER
\n THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES
\n DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A
\n TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
\n DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
\n ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE
\n LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.<\/p>\n
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
\n WHOLE, BUT NOT IN PART, AND TRANSFERS OF INTERESTS IN THIS GLOBAL NOTE
\n SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
\n SET FORTH IN SECTION 2.16 OF THE INDENTURE.<\/p>\n
ARTICLE 3<\/p>\n
REDEMPTION<\/p>\n
Section 3.01. Notices to Trustee.<\/p>\n
If the Company elects to redeem Notes pursuant to paragraph 6
\nof the Notes, at least 60 days prior to the Redemption Date or during such other
\nperiod as the Trustee may agree to, the Company shall notify the Trustee in
\nwriting of the Redemption Date, the principal amount of Notes to be redeemed and
\nthe Redemption Price, and deliver to the Trustee an Officers’ Certificate
\nstating that such redemption will comply with the conditions contained herein
\nand in the Notes, as appropriate.<\/p>\n
Section 3.02. Selection of Notes To Be Redeemed.<\/p>\n
(a) In the event that less than all of the Notes are to
\nbe redeemed at any time, selection of the Notes to be redeemed shall be made by
\nthe Trustee on a pro rata basis, by lot or by such method as the Trustee shall
\ndeem fair and equitable; provided, however, that no Notes of a principal amount
\nof $1,000 or less shall be redeemed in part; provided, further, that if a
\npartial redemption is made with the proceeds of any Equity Offering, selection
\nof the Notes or portions thereof<\/p>\n
30<\/p>\n
for redemption shall be made by the Trustee only on a pro rata basis or on as
\nnearly a pro rata basis as is practicable (subject to the procedures of the
\nDepositary), unless such method is otherwise prohibited. The Trustee shall make
\nthe selection from the outstanding Notes not previously called for redemption.
\nThe Trustee shall promptly notify the Company in writing of the Notes selected
\nfor redemption and, in the case of any Notes selected for partial redemption,
\nthe principal amount of the Notes to be redeemed. In the event of a partial
\nredemption by lot, the Trustee shall select the particular Notes to be redeemed
\nnot less than 30 nor more than 60 days prior to the relevant Redemption Date
\nfrom the Outstanding Notes not previously called for redemption. The Company may
\nredeem Notes in denominations of $1,000 only in whole. The Trustee may select
\nfor redemption portions (equal to $1,000 or any integral multiple of $1,000) of
\nthe principal of Notes that have denominations larger than $1,000. A new Note in
\na principal amount equal to the unredeemed portion thereof will be issued in the
\nname of the Holder thereof upon delivery of the original Note to the Paying
\nAgent and cancellation of the original Note. On and after the Redemption Date,
\ninterest will cease to accrue on Notes or portions thereof called for redemption
\nas long as the Company has made a deposit with the Paying Agent in U.S. legal
\ntender in satisfaction of the applicable Redemption Price pursuant to this
\nIndenture.<\/p>\n
(b) For all purposes of this Indenture, unless the
\ncontext otherwise requires, all provisions relating to redemption of Notes shall
\nrelate, in the case of any Note redeemed or to be redeemed only in part, to the
\nportion of the principal amount of that Note which has been or is to be
\nredeemed.<\/p>\n
Section 3.03. Notice of Redemption.<\/p>\n
Notice of redemption shall be mailed by first class mail at
\nleast 30 but not more than 60 calendar days before the Redemption Date to each
\nHolder of Notes to be redeemed at the registered address of such Holder. If any
\nNote is to be redeemed in part only, the notice of redemption that relates to
\nsuch Note shall state the portion of the principal amount thereof to be
\nredeemed. If the Company elects to have the Trustee give notice of redemption,
\nthe Trustee shall give notice in the name of the Company and at the Company’s
\nexpense; provided, however, that the Company shall furnish the Trustee all
\ninformation required to be contained in the notice.<\/p>\n
The notice shall identify the Notes to be redeemed and shall
\n state:<\/p>\n
(1) the Redemption Date;<\/p>\n
(2) the Redemption Price and the amount of accrued interest,
\n if any, to be paid;<\/p>\n
(3) whether or not the Company is redeeming all outstanding
\n Notes and if any Note is being redeemed in part, the portion of
\n the principal amount (equal to $1,000 in principal amount or any
\n integral multiple thereof) of such Note to be redeemed and that,
\n on and after the Redemption Date, upon surrender of such Note, a
\n new Note or Notes in principal amount equal to the unredeemed
\n portion thereof will be issued;<\/p>\n
(4) the name, address and telephone number of the Paying
\n Agent;<\/p>\n
(5) that Notes called for redemption must be surrendered to
\n the Paying Agent at the address specified in such notice to
\n collect the Redemption Price plus accrued interest, if any;<\/p>\n
31<\/p>\n
(6) that, unless the Company defaults in making the
\n redemption payment, interest on Notes called for redemption
\n ceases to accrue on and after the Redemption Date and the only
\n remaining right of the Holders is to receive payment of the
\n Redemption Price plus accrued interest to the Redemption Date
\n upon surrender of the Notes to the Paying Agent;<\/p>\n
(7) the subparagraph of the Notes pursuant to which the
\n Notes called for redemption are being redeemed;<\/p>\n
(8) if fewer than all the Notes are to be redeemed, the
\n identification of the particular Notes (or portion thereof) to be
\n redeemed, as well as the aggregate principal amount of Notes to
\n be redeemed and the aggregate principal amount of Notes to be
\n outstanding after such partial redemption; and<\/p>\n
(9) the CUSIP or ISIN number, if any, listed in the notice
\n or printed on the Notes, and that no representation is made as to
\n the accuracy or correctness of such CUSIP or ISIN number.<\/p>\n
Section 3.04. Effect of Notice of Redemption.<\/p>\n
Once the notice of redemption described in Section 3.03 hereof
\nis mailed, Notes called for redemption become due and payable on the Redemption
\nDate and at the Redemption Price, including any make-whole amount, plus accrued
\ninterest to the Redemption Date, if any. Upon surrender to the Paying Agent,
\nsuch Notes shall be paid at the Redemption Price, including any make-whole
\namount, plus accrued interest to the Redemption Date, if any; provided that if
\nthe Redemption Date is after a Record Date and on or prior to the Interest
\nPayment Date, the accrued interest shall be payable to the Holder of the
\nredeemed Notes registered on the relevant Record Date.<\/p>\n
Section 3.05. Deposit of Redemption Price.<\/p>\n
On or prior to 10:00 a.m., New York City time, on the relevant
\nRedemption Date, the Company shall have deposited with the Paying Agent in
\nimmediately available funds U.S. legal tender sufficient to pay the Redemption
\nPrice of and accrued interest, if any, on all Notes to be redeemed on that date.
\nThe Paying Agent shall return to the Company any money deposited with the Paying
\nAgent by the Company in excess of the amount necessary to pay the Redemption
\nPrice of and accrued interest, if any, on all Notes to be redeemed.<\/p>\n
On and after any Redemption Date, if U.S. legal tender
\nsufficient to pay the Redemption Price of and accrued interest, if any, on Notes
\ncalled for redemption shall have been made available in accordance with the
\npreceding paragraph, the Notes called for redemption will cease to accrue
\ninterest and the only right of the Holders of such Notes will be to receive
\npayment of the Redemption Price of and, subject to the proviso in Section 3.04
\nhereof, accrued and unpaid interest on such Notes to the Redemption Date, if
\nany. If any Note called for redemption shall not be so paid, interest will
\ncontinue to accrue and be paid, from the Redemption Date until such redemption
\npayment is made, on the unpaid principal of the Note and any interest not paid
\non such unpaid principal, in each case, at the rate and in the manner provided
\nfor in Section 2.12 hereof.<\/p>\n
32<\/p>\n
Section 3.06. Notes Redeemed in Part.<\/p>\n
Upon surrender of a Note that is redeemed in part, the Company
\nshall execute and the Trustee shall authenticate, at the expense of the Company,
\nfor a Holder a new Note equal in principal amount to the unredeemed portion of
\nthe Note surrendered; provided that each new Note will be in a principal amount
\nof $1,000 or an integral multiple of $1,000.<\/p>\n
ARTICLE 4<\/p>\n
COVENANTS<\/p>\n
Section 4.01. Payment of Notes.<\/p>\n
The Company shall pay the principal of and interest (including
\nall Additional Interest as provided in the Registration Rights Agreement) on the
\nNotes on the dates and in the manner provided in the Notes and this Indenture.
\nAn installment of principal or interest shall be considered paid on the date it
\nis due if the Trustee or Paying Agent holds, for the benefit of the Holders, on
\nthat date money designated for and sufficient to pay such installment in full
\nand is not prohibited from paying such money to the Holders pursuant to the
\nterms of this Indenture.<\/p>\n
The Company shall pay interest on overdue principal and
\ninterest on overdue interest, to the extent lawful as provided for in Section
\n2.12 hereof.<\/p>\n
Section 4.02. Reports.<\/p>\n
Whether or not required by the rules and regulations of the
\nCommission, so long as any Notes are outstanding, the Company shall file with
\nthe Commission, to the extent such filings are accepted by the Commission, and
\nshall furnish (within 15 days after such filing) to the Trustee and to the
\nHolders all quarterly and annual reports and other information, documents and
\nreports that would be required to be filed with the Commission pursuant to
\nSection 13 of the Exchange Act if the Company were required to file under such
\nsection. In addition, the Company shall make such information available to
\nprospective purchasers of the Notes, securities analysts and broker-dealers who
\nrequest it in writing. Delivery of such reports, information and documents to
\nthe Trustee is for informational purposes only and the Trustee’s receipt of such
\nshall not constitute constructive notice of any information contained therein or
\ndeterminable from information contained therein, including the Company’s
\ncompliance with any of its covenants hereunder (as to which the Trustee is
\nentitled to rely exclusively on Officers’ Certificates).<\/p>\n
Section 4.03. Waiver of Stay, Extension or Usury Laws.<\/p>\n
The Company covenants (to the extent that it may lawfully do
\nso) that it will not at any time insist upon, or plead (as a defense or
\notherwise) or in any manner whatsoever claim or take the benefit or advantage
\nof, any stay or extension law or any usury law or other law which would prohibit
\nor forgive the Company from paying all or any portion of the principal of,
\nmake-whole amount, if any, and\/or interest on the Notes as contemplated herein,
\nwherever enacted, now or at any time hereafter in force, or which may affect the
\ncovenants or the performance of this Indenture; and the Company<\/p>\n
33<\/p>\n
hereby expressly waives all benefit or advantage of any such law, and covenants
\nthat it will not hinder, delay or impede the execution of any power herein
\ngranted to the Trustee, but will suffer and permit the execution of every such
\npower as though no such law had been enacted.<\/p>\n
Section 4.04. Compliance Certificate; Notice of Default; Tax Information.<\/p>\n
(a) The Company shall deliver to the Trustee, within 90
\ndays after the end of the Company’s fiscal year commencing with the fiscal year
\nending December 31, 2000, an Officers’ Certificate (one of the signers of which
\nshall be the principal executive officer, principal financial officer or
\nprincipal accounting officer of the Company) stating that to the best of his or
\nher knowledge no Default or Event of Default has occurred, listing all
\nRestricted Payments for such year, and if a Default or Event of Default shall
\nhave occurred, describing all of such Defaults or Events of Default of which he
\nor she may have knowledge and what action the Company is taking or proposes to
\ntake with respect thereto. The Officers’ Certificate shall also notify the
\nTrustee should the Company elect to change the manner in which it fixes its
\nfiscal year end.<\/p>\n
(b) The annual financial statements delivered pursuant to
\nSection 4.02 shall be accompanied by a written report addressed to the Trustee
\nof the Company’s independent accountants (who shall be a firm of established
\nnational reputation) that in conducting their audit of such financial statements
\nnothing has come to their attention that would lead them to believe that a
\nDefault or Event of Default has occurred under this Indenture insofar as they
\nrelate to accounting matters or, if any such violation has occurred, specifying
\nthe nature and period of existence thereof, it being understood that such
\naccountants shall not be liable directly or indirectly to any Person for any
\nfailure to obtain knowledge of any such violation.<\/p>\n
(c) If (i) any Default or Event of Default has occurred
\nand is continuing or (ii) any Holder seeks to exercise any remedy hereunder with
\nrespect to a claimed default under this Indenture or the Notes, the Company
\nshall deliver to the Trustee, at its address set forth in Section 11.02 hereof,
\nby registered or certified mail or by telegram or facsimile transmission
\nfollowed by hard copy by registered or certified mail an Officers’ Certificate
\nspecifying such Default or Event of Default, notice or other action, the status
\nthereof and what action the Company is taking or proposes to take, which
\nOfficers’ Certificate shall be so delivered within five (5) Business Days of its
\nbecoming aware of such occurrence.<\/p>\n
Section 4.05. Payment of Taxes and Other Claims.<\/p>\n
The Company shall pay or discharge or cause to be paid or
\ndischarged, before the same shall become delinquent, (i) all material taxes,
\nassessments and governmental charges (including withholding taxes and any
\npenalties, interest and additions to taxes) levied or imposed upon it or any of
\nits Subsidiaries or properties of it or any of its Subsidiaries and (ii) all
\nlawful claims for labor, materials and supplies that, if unpaid, might by law
\nbecome a Lien upon the property of it or any of its Subsidiaries; provided,
\nhowever, that the Company shall not be required to pay or discharge or cause to
\nbe paid or discharged any such tax, assessment, charge or claim whose amount,
\napplicability or validity is being contested in good faith by appropriate
\nproceedings properly instituted and diligently conducted for which adequate
\nreserves, to the extent required under GAAP, have been taken.<\/p>\n
34<\/p>\n
Section 4.06. Corporate Existence.<\/p>\n
Subject to Article 5 hereof, the Company shall do or cause to
\nbe done all things necessary to preserve and keep in full force and effect (i)
\nits corporate existence, and the corporate, partnership or limited liability
\ncompany or other existence of each Subsidiary, in accordance with the respective
\norganizational documents (as the same may be amended from time to time) of each
\nSubsidiary and the material rights (charter and statutory), licenses and
\nfranchises of the Company and its Subsidiaries except where the failure to
\npreserve and keep in full force and effect any such rights, licenses and
\nfranchises shall not have a material adverse effect on the financial condition,
\nbusiness, operations or prospects of the Company and its Subsidiaries taken as a
\nwhole; and provided that the Company shall not be required to preserve any such
\nright, license or franchise, or the corporate, limited liability company,
\npartnership or other existence of any of the Subsidiaries, if the Board of
\nDirectors of the Company shall determine that the preservation thereof is no
\nlonger desirable in the conduct of the business of the Company and its
\nSubsidiaries, taken as a whole.<\/p>\n
Section 4.07. Maintenance of Office or Agency.<\/p>\n
The Company shall maintain an office or agency in the Borough
\nof Manhattan, The City of New York, where Notes may be surrendered for
\nregistration of transfer or exchange or for presentation for payment and where
\nnotices and demands to or upon the Company in respect of the Notes and this
\nIndenture may be served. The Company shall give prompt written notice to the
\nTrustee of the location, and any change in the location, of such office or
\nagency. If at any time the Company shall fail to maintain any such required
\noffice or agency or shall fail to furnish the Trustee with the address thereof,
\nsuch presentations, surrenders, notices and demands may be made or served at the
\naddress of the Trustee as set forth in Section 11.02 hereof.<\/p>\n
The Company may also from time to time designate one or more
\nother offices or agencies where the Notes may be presented or surrendered for
\nany or all such purposes and may from time to time rescind such designations.
\nThe Company shall give prompt written notice to the Trustee of such designation
\nor rescission and of any change in the location of any such other office or
\nagency.<\/p>\n
The Company hereby initially designates the Corporate Trust
\nOffice of the Trustee set forth in Section 11.02 hereof as such office of the
\nCompany in the Borough of Manhattan, The City of New York.<\/p>\n
Section 4.08. Compliance with Laws.<\/p>\n
The Company shall comply, and shall cause each of its
\nSubsidiaries to comply, with all applicable statutes, rules, regulations, orders
\nand restrictions of the United States of America and all other sovereign
\nnations, all states and municipalities thereof, and of any governmental
\ndepartment, commission, board, regulatory authority, bureau, agency and
\ninstrumentality of the foregoing, in respect of the conduct of their respective
\nbusinesses and the ownership of their respective properties, except for such
\nnoncompliances as would not in the aggregate have a material adverse effect on
\nthe financial condition or results of operations of the Company and its
\nSubsidiaries taken as a whole.<\/p>\n
35<\/p>\n
Section 4.09. Maintenance of Properties and Insurance.<\/p>\n
(a) The Company shall cause all material properties owned
\nby or leased by it or any of its Subsidiaries used or useful to the conduct of
\nthe Company’s business or the business of any of its Subsidiaries to be
\nmaintained and kept in normal condition, repair and working order and supplied
\nwith all necessary equipment and shall cause to be made all necessary repairs,
\nrenewals, replacements, betterments and improvements thereof, all as in its
\njudgment may be necessary, so that the business carried on in connection
\ntherewith may be properly and advantageously conducted at all times; provided,
\nhowever, that nothing in this Section 4.09 shall prevent the Company or any of
\nits Subsidiaries from discontinuing the use, operation or maintenance of any of
\nsuch properties, or disposing of any of them, if such discontinuance or disposal
\nis, in the judgment of the Board of Directors of the Company or of the Board of
\nDirectors of the Subsidiary of the Company concerned, desirable in the conduct
\nof the business of the Company or any Subsidiary of the Company.<\/p>\n
(b) The Company shall maintain, and shall cause the
\nSubsidiaries to maintain, insurance with responsible carriers against such risks
\nand in such amounts, and with such deductibles, retentions, self-insured amounts
\nand co-insurance provisions, as, in the reasonable judgment of the Company, may
\nbe necessary.<\/p>\n
Section 4.10. Limitation on Restricted Payments.<\/p>\n
The Company shall not, and shall not permit any of its
\nSubsidiaries, directly or indirectly, to make any Restricted Payment if at the
\ntime of such Restricted Payment: (i) a Default or Event of Default shall have
\noccurred and be continuing or shall occur as a consequence thereof; (ii) after
\ngiving effect to the proposed Restricted Payment, the amount of such Restricted
\nPayment, when added to the aggregate amount of all Restricted Payments made
\nafter September 25, 2000, exceeds the sum of: (a) 50% of the Company’s
\nConsolidated Net Income accrued during the period (taken as a single period)
\ncommencing on July 1, 1997 to and including the fiscal quarter ended immediately
\nprior to the date of such Restricted Payment (or, if such aggregate Consolidated
\nNet Income shall be a deficit, minus 100% of such aggregate deficit); (b) the
\nnet cash proceeds from the issuance and sale of the Company’s Capital Stock
\n(other than to a Subsidiary of the Company) that is not Disqualified Stock
\nduring the period (taken as a single period) commencing with the Issue Date; and
\n(c) $50,000,000; or (iii) the Company would not be able to incur an additional
\n$1.00 of Indebtedness pursuant to Section 4.11 hereof.<\/p>\n
Notwithstanding the foregoing, the Company may: (w) pay any
\ndividend within 60 days after the date of declaration thereof if the payment
\nthereof would have complied with the limitations of this Section 4.10 on the
\ndate of declaration; (x) retire shares of the Company’s Capital Stock or the
\nCompany’s or a Subsidiary of the Company’s Indebtedness out of the proceeds of a
\nsubstantially concurrent sale (other than to a Subsidiary of the Company) of
\nshares of the Company’s Capital Stock (other than Disqualified Stock); (y) make
\nInvestments in Joint Ventures, when added to the aggregate amount of all such
\nother Investments made pursuant to this clause (y) (or such other Investments as
\nwould have been made pursuant to this clause (y) had such clause been in effect)
\nafter September 25, 2000, not exceeding at any time 5% of Consolidated Tangible
\nAssets (with each such Investment being valued as of the date made and without
\nregard to subsequent changes in value); and (z) make Investments, when added to
\nthe aggregate amount of all such other Investments made pursuant to this clause
\n(z) (or such other Investments as would have been made pursuant to this clause
\n(z) had such clause been in effect) after September 25, 2000, not exceeding at
\nany time 2.5% of<\/p>\n
36<\/p>\n
Consolidated Tangible Assets (with each such Investment being valued as of the
\ndate made and without regard to subsequent changes in value); provided, however,
\nthat each Restricted Payment described in clauses (w) and (x) above shall be
\ntaken into account for purposes of computing the aggregate amount of all
\nRestricted Payments pursuant to clause (ii) of the immediately preceding
\nparagraph.<\/p>\n
Section 4.11. Limitation on Additional Indebtedness and Subsidiary Preferred
\n Stock.<\/p>\n
(a) After the Issue Date, (i) the Company shall not, and
\nshall not permit any of its Subsidiaries to, directly or indirectly, create,
\nincur, issue, assume, guarantee, extend the Stated Maturity of, or otherwise
\nbecome liable with respect to (collectively, “incur”), any Indebtedness
\n(including, without limitation, Acquired Indebtedness) and (ii) the Company
\nshall not permit any of its Subsidiaries to issue (except to the Company or any
\nof its Wholly Owned Subsidiaries) or create any Preferred Stock or permit any
\nPerson (other than the Company or a Wholly Owned Subsidiary) to own or hold any
\ninterest in any Preferred Stock of any such Subsidiary; provided, however, that
\nthe Company may incur Indebtedness and the Company may permit its Subsidiaries
\nto issue or create Preferred Stock if, after giving effect thereto, the
\nCompany’s EBITDA Coverage Ratio on the date thereof would be at least 2.5 to 1,
\ndetermined on a pro forma basis as if the incurrence of such additional
\nIndebtedness or the issuance of such Preferred Stock (declared to have an
\naggregate principal amount equal to the aggregate liquidation value of such
\nPreferred Stock), as the case may be, and the application of the net proceeds
\ntherefrom, had occurred at the beginning of the four-quarter period used to
\ncalculate the Company’s EBITDA Coverage Ratio.<\/p>\n
(b) Notwithstanding the foregoing, and irrespective of
\nthe EBITDA Coverage Ratio, in addition to Existing Indebtedness: (i) the Company
\nmay incur Indebtedness pursuant to the Notes issued on the Issue Date and the
\nExchange Notes issued in exchange for such Notes; (ii) the Company may incur
\nIndebtedness under the 2000 Credit Agreement in an aggregate principal amount at
\nany time not to exceed $400,000,000; (iii) the Company and its Subsidiaries may
\nincur Refinancing Indebtedness; (iv) the Company may incur any Indebtedness to
\nany Subsidiary or any Subsidiary may incur any Indebtedness to the Company or to
\nany Subsidiary; (v) the Company and its Subsidiaries may incur any Indebtedness
\nevidenced by letters of credit which are used in the ordinary course of business
\nof the Company and its Subsidiaries to secure workers’ compensation and other
\ninsurance coverages; (vi) the Company and its Subsidiaries may incur Capitalized
\nLease Obligations and Attributable Indebtedness, in each case excluding Existing
\nIndebtedness, in an aggregate principal amount at any one time outstanding not
\nto exceed 10% of Consolidated Tangible Assets; and (vii) the Subsidiaries of the
\nCompany may incur Indebtedness, excluding Existing Indebtedness, in an aggregate
\nprincipal amount at any time outstanding not to exceed $250,000,000, in addition
\nto Indebtedness permitted to be incurred by Subsidiaries pursuant to the
\nforegoing clauses (iii) – (vi).<\/p>\n
(c Notwithstanding the foregoing, the Company may permit
\nany Subsidiary which is a partnership formed to operate a single healthcare
\nfacility to issue or create Preferred Stock, provided that the aggregate amount
\nof all such Preferred Stock outstanding after giving effect to such issuance or
\ncreation shall not exceed 1% of Consolidated Tangible Assets as of the date of
\nsuch issuance or creation.<\/p>\n
37<\/p>\n
Section 4.12. Limitation on Asset Sales.<\/p>\n
(a) The Company shall not, and shall not permit any of
\nits Subsidiaries to, consummate any Asset Sale unless (i) the Company or such
\nSubsidiary receives consideration at the time of such Asset Sale at least equal
\nto the Fair Market Value of the assets included in such Asset Sale, (ii)
\nimmediately before and immediately after giving effect to such Asset Sale, no
\nDefault or Event of Default shall have occurred and be continuing and (iii) at
\nleast 75% of the consideration received by the Company or such Subsidiary
\ntherefor is in the form of cash paid at the closing thereof, provided, however,
\nthat this clause (iii) shall not apply if, after giving effect to such Asset
\nSale, the aggregate principal amount of all notes or similar debt obligations
\nand Fair Market Value of all equity securities received by the Company from all
\nAsset Sales since September 25, 2000 (other than such notes or similar debt
\nobligations and such equity securities converted into or otherwise disposed of
\nfor cash and applied in accordance with the second succeeding sentence) would
\nnot exceed 2.5% of Consolidated Tangible Assets. The amount (without
\nduplication) of any (x) Indebtedness (other than Subordinated Indebtedness) of
\nthe Company or such Subsidiary that is expressly assumed by the transferee in
\nsuch Asset Sale and with respect to which the Company or such Subsidiary, as the
\ncase may be, is unconditionally released by the holder of such Indebtedness and
\n(y) any notes, securities or similar obligations or items of property received
\nfrom such transferee that are immediately converted, sold or exchanged by the
\nCompany or such Subsidiary for cash (to the extent of the cash actually so
\nreceived), shall be deemed to be cash for purposes of this Section 4.12. If at
\nany time any non-cash consideration received by the Company or such Subsidiary,
\nas the case may be, in connection with any Asset Sale is converted into or sold
\nor otherwise disposed of for cash (other than interest received with respect to
\nany such non-cash consideration), then the date of such conversion or
\ndisposition shall be deemed to constitute the date of an Asset Sale hereunder
\nand the Net Proceeds thereof shall be applied in accordance with this Section
\n4.12. A transfer of assets by the Company to a Wholly Owned Subsidiary or by a
\nWholly Owned Subsidiary to the Company or to another Wholly Owned Subsidiary
\nwill not be deemed to be an Asset Sale, and a transfer of assets that
\nconstitutes a Restricted Payment and that is permitted under Section 4.10 hereof
\nwill not be deemed to be an Asset Sale.<\/p>\n
(b) If the Company or any Subsidiary engages in an Asset
\nSale, the Company or such Subsidiary shall, no later than 360 days after such
\nAsset Sale, (i) apply all or any of the Net Proceeds therefrom to repay
\nIndebtedness that ranks pari passu with the Notes and is secured by the assets
\ndisposed of in the Asset Sale or to repay Bank Debt in accordance with the
\napplicable provisions thereof, (ii) invest all or any part of the Net Proceeds
\ntherefrom in the lines of business of the Company or any of its Subsidiaries
\nimmediately prior to such investment or (iii) any combination of clauses (i) and
\n(ii) above. The amount of such Net Proceeds not applied or invested as provided
\nin this paragraph (b) will constitute “Excess Proceeds.”<\/p>\n
(c) When the aggregate amount of Excess Proceeds equals
\nor exceeds $5,000,000, the Company shall be required to make an offer to
\npurchase (an “Asset Sale Offer”) from all Holders, an aggregate principal amount
\nof Notes equal to the amount of such Excess Proceeds as follows:<\/p>\n
(i) The Company shall make an Asset Sale Offer to all Holders
\n in accordance with the procedures set forth in this Section 4.12 to
\n purchase the maximum principal amount (expressed as a multiple of
\n $1,000) of Notes that may be purchased out of the amount (the “Asset
\n Sale Payment Amount”) of such Excess Proceeds.<\/p>\n
38<\/p>\n
(ii) The offer price for the Notes shall be payable in cash in
\n an amount equal to 100% of the principal amount of the Notes tendered
\n pursuant to such Asset Sale Offer, plus accrued and unpaid interest and
\n Additional Interest, if any, to the date such Asset Sale Offer is
\n consummated (the “Asset Sale Purchase Price”), in accordance with the
\n procedures set forth in this Section 4.12. To the extent that the
\n aggregate Asset Sale Purchase Price of Notes tendered pursuant to an
\n Asset Sale Offer is less than the Asset Sale Payment Amount relating
\n thereto (such shortfall constituting a “Net Proceeds Deficiency”), the
\n Company may use such Net Proceeds Deficiency, or a portion thereof, for
\n general corporate purposes.<\/p>\n
(iii) If the aggregate Asset Sale Purchase Price of Notes
\n validly tendered and not withdrawn by holders thereof exceeds the Asset
\n Sale Payment Amount, Notes to be purchased shall be selected on a pro
\n rata basis.<\/p>\n
(iv) Upon completion of such Asset Sale Offer in accordance
\n with the foregoing provisions, the amount of Excess Proceeds with
\n respect to which such Asset Sale Offer was made shall be deemed to be
\n zero.<\/p>\n
In the event that any other Indebtedness of the Company which
\nranks pari passu with the Notes (“Other Debt”) requires an offer to purchase to
\nbe made to repurchase such Other Debt upon the consummation of an Asset Sale,
\nthe Company may apply the Excess Proceeds to both purchase such Other Debt and
\nto make an Asset Sale Offer, provided, that the purchase price of such Other
\nDebt does not exceed 100% of the aggregate principal amount or accreted value
\nthereof plus interest thereon. With respect to any Excess Proceeds, the Company
\nshall make the Asset Sale Offer in respect thereof at the same time as the
\nanalogous offer to purchase is made pursuant to any Other Debt and the purchase
\ndate in respect thereof shall be the same as the purchase date in respect
\nthereof pursuant to any Other Debt.<\/p>\n
With respect to any Asset Sale Offer effected pursuant to this
\nSection 4.12, to the extent the aggregate principal amount of Notes and Other
\nDebt, if any, tendered pursuant to such Asset Sale Offer and the concurrent
\noffer to purchase with respect to such Other Debt exceeds the Excess Proceeds,
\nsuch Notes and Other Debt, if any, shall be purchased pro rata based on the
\naggregate principal amount of such Notes and such Other Debt tendered by each
\nholder thereof.<\/p>\n
(d) If the Company is required to make an Asset Sale Offer,
\nthe Company shall, within 30 days following the date specified in clause (c)
\nabove, notify the Trustee thereof and give written notice of such Asset Sale
\nOffer to each Holder by first-class mail, postage prepaid, at the address of
\nsuch Holder appearing in the register maintained by the Registrar, stating:<\/p>\n
(1) that an Asset Sale Offer is being made pursuant to this
\n Section 4.12;<\/p>\n
(2) that such Holders have the right to require the Company to
\n apply the Excess Proceeds to repurchase the Notes at a purchase price
\n in cash equal to 100% of the principal amount thereof plus accrued and
\n unpaid interest, if any, to the purchase date which shall be no earlier
\n than 30 days and not later than 60 days from the date such notice is
\n mailed (the “Excess Proceeds Payment Date”);<\/p>\n
(3) that any Note not tendered or accepted for payment will
\n continue to accrue interest;<\/p>\n
39<\/p>\n
(4) that any Notes accepted for payment pursuant to the Asset
\n Sale Offer shall cease to accrue interest after the Excess Proceeds
\n Payment Date;<\/p>\n
(5) that Holders accepting the offer to have their Notes
\n purchased pursuant to the Asset Sale Offer will be required to
\n surrender the Notes, with the form entitled “Option of Holder to Elect
\n Purchase” on the reverse of the Note completed, to the Paying Agent at
\n the address specified in the notice prior to the close of business on
\n the Business Day preceding the Excess Proceeds Payment Date;<\/p>\n
(6) that Holders will be entitled to withdraw their acceptance
\n of the Asset Sale Offer if the Paying Agent receives, not later than
\n the close of business on the third Business Day preceding the Excess
\n Proceeds Payment Date, a telegram, facsimile transmission or letter
\n setting forth the name of the Holder, the principal amount of the Notes
\n delivered for purchase and a statement that such Holder is withdrawing
\n his or her election to have such Notes purchased;<\/p>\n
(7) that if the aggregate principal amount of Notes
\n surrendered by Holders exceeds the amount of Excess Proceeds, Company
\n shall select the Notes to be purchased on a pro rata basis so that the
\n aggregate amount of Notes so purchased equals the amount of Excess
\n Proceeds (with such adjustments as may be deemed appropriate by the
\n Company so that only Notes in denominations of $1,000 or integral
\n multiples thereof shall be purchased);<\/p>\n
(8) that Holders whose Notes are being purchased only in part
\n will be issued new Notes equal in principal amount to the unpurchased
\n portion of the Notes surrendered; provided that each Note purchased and
\n each such new Note issued shall be in an original principal amount in
\n denominations of $1,000 or integral multiples thereof;<\/p>\n
(9) the calculations used in determining the amount of Excess
\n Proceeds to be applied to the purchase of such Notes;<\/p>\n
(10) any other procedures that a Holder must follow to accept
\n an Asset Sale Offer or effect withdrawal of such acceptance; and<\/p>\n
(11) the name and address of the Paying Agent.<\/p>\n
On the Excess Proceeds Payment Date, the Company shall, to the
\nextent lawful, (1) accept for payment, on a pro rata basis to the extent
\nnecessary, Notes or portions thereof tendered pursuant to the Asset Sale Offer,
\n(2) deposit with the Paying Agent US legal tender sufficient to pay the purchase
\nprice plus accrued and unpaid interest, if any, on the Notes to be purchased or
\nportions thereof, (3) deliver or cause to be delivered to the Trustee Notes so
\naccepted together with an Officers’ Certificate stating that such Notes or
\nportions thereof were accepted for payment by the Company in accordance with the
\nterms of this Section 4.12. The Paying Agent shall promptly mail to each Holder
\nso accepted payment in an amount equal to the purchase price for such Notes, and
\nthe Company shall execute and issue, and the Trustee shall promptly authenticate
\nand make available for delivery to such Holder, a new Note equal in principal
\namount to any unpurchased portion of the Notes surrendered; provided that each
\nNote purchased and each such new Note issued shall be in an original principal
\namount in denominations of $1,000 or integral multiples thereof.<\/p>\n
40<\/p>\n
(e) The Company shall comply with the requirements of Rule
\n14e-1 under the Exchange Act and other securities laws and regulations
\nthereunder to the extent such laws and regulations are applicable in connection
\nwith the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that
\nthe provisions of any securities laws or regulations conflict with this Section
\n4.12, the Company shall comply with the applicable securities laws and
\nregulations and shall not be deemed to have breached its obligations under this
\nSection 4.12 by virtue thereof.<\/p>\n
Section 4.13. Limitation on Transactions with Affiliates.<\/p>\n
Neither the Company nor any of its Subsidiaries shall,
\ndirectly or indirectly, in one transaction or a series of transactions, make any
\nloan, advance, guarantee or capital contribution to, or for the benefit of, or
\nsell, lease, transfer or otherwise dispose of any of its properties or assets
\nto, or for the benefit of, or purchase or lease any property or assets from, or
\nenter into or amend any contract, agreement or understanding with, or for the
\nbenefit of, any Affiliate of the Company or any of its Subsidiaries or any
\nPerson (or any Affiliate of such Person) holding 10% or more of the Common
\nEquity of the Company or any of its Subsidiaries, other than transactions in the
\nordinary course between the Company and its Subsidiaries or among Subsidiaries
\nof the Company (an “Affiliate Transaction”), unless: (i) the terms of such
\nAffiliate Transactions are fair and reasonable to the Company or such
\nSubsidiary, as the case may be, and are at least as favorable as the terms which
\ncould be obtained by the Company or such Subsidiary, as the case may be, in a
\ncomparable transaction made on an arm’s-length basis between unaffiliated
\nparties; (ii) with respect to any such Affiliate Transaction involving aggregate
\npayments in excess of $5,000,000, the Company delivers an Officers’ Certificate
\nto the Trustee certifying that such Affiliate Transaction complies with clause
\n(i) above and a Secretary’s Certificate which sets forth and authenticates a
\nresolution that has been adopted by a vote of a majority of the disinterested
\nmembers of the Board of Directors approving such Affiliate Transaction; and
\n(iii) with respect to any such Affiliate Transaction involving aggregate
\npayments in excess of $25,000,000, the Company delivers to the Trustee the
\ncertificates specified in clause (ii) above and an opinion of an independent
\ninvestment banking firm of national standing in the United States, stating that
\nsuch Affiliate Transaction is fair from a financial point of view to the Company
\nor such Subsidiary, as the case may be; provided, however, that the foregoing
\nclauses (ii) and (iii) shall not apply to transactions between the Company or
\nany of its Subsidiaries and MedCenterDirect.com, Inc. or any entity to which the
\nCompany transfers all or substantially all of the rights to its HEALTHSOUTH
\nClinical Automation Program.<\/p>\n
Section 4.14. Limitation on Liens.<\/p>\n
The Company will not create or suffer to exist any Lien (other
\nthan Permitted Liens) on any of its assets, unless contemporaneously therewith:<\/p>\n
(i) in the case of any Lien securing an obligation that ranks
\n pari passu with the Notes, effective provision is made to secure the
\n Notes at least equally and ratably with or prior to such obligation
\n with a Lien on the same collateral; and<\/p>\n
(ii) in the case of any Lien securing an obligation that is
\n subordinated in right of payment to the Notes, effective provision is
\n made to secure the Notes with a Lien on the same collateral that is
\n prior to the Lien securing such subordinated obligation.<\/p>\n
41<\/p>\n
Notwithstanding the above, the Company may, without securing
\nthe Notes, create or assume any Indebtedness which is secured by a Lien which
\nwould otherwise be subject to the foregoing restrictions, provided that after
\ngiving effect thereto, the Exempted Debt then outstanding does not exceed 10% of
\nthe total Consolidated Tangible Assets of the Company and its Subsidiaries at
\nsuch time.<\/p>\n
Section 4.15. Purchase of Notes upon a Change of Control.<\/p>\n
(a) Upon the occurrence of a Change of Control, the Company
\nshall be obligated to make an offer to purchase (the “Change of Control Offer”)
\nthe outstanding Notes of each Holder in whole or in part in integral multiples
\nof $1,000, at a purchase price (the “Change of Control Purchase Price”) in cash
\nin an amount equal to 101% of the principal amount thereof, plus accrued
\ninterest, if any, to the date of purchase (the “Change of Control Purchase
\nDate”), pursuant to the procedures set forth below.<\/p>\n
(b) Within 30 days following any Change of Control, the
\nCompany shall notify the Trustee thereof and give written notice of such Change
\nof Control to each Holder by first-class mail, postage prepaid, at the address
\nof such Holder appearing in the register maintained by the Registrar, stating,
\namong other things:<\/p>\n
(1) that the Change of Control Offer is being made pursuant
\n to this Section 4.15;<\/p>\n
(2) that such Holders have the right to require the Company
\n to repurchase such Notes at the Change of Control Purchase Price
\n on the Change of Control Purchase Date which shall be no earlier
\n than 30 days and not later than 60 days from the date such notice
\n is mailed;<\/p>\n
(3) that any Note not tendered or accepted for payment will
\n continue to accrue interest;<\/p>\n
(4) that, unless the Company defaults in its payment of the
\n Change of Control Purchase Price, any Note accepted for payment
\n pursuant to the Change of Control Offer shall cease to accrue
\n interest after the Change of Control Purchase Date;<\/p>\n
(5) that Holders accepting the offer to have their Notes
\n purchased pursuant to a Change of Control Offer will be required
\n to surrender the Notes, with the form entitled “Option of Holder
\n to Elect Purchase” on the reverse of the Note completed, to the
\n Paying Agent at the address specified in the notice prior to the
\n close of business on the Business Day preceding the Change of
\n Control Purchase Date;<\/p>\n
(6) that Holders will be entitled to withdraw their
\n acceptance of the Change of Control Offer if the Paying Agent
\n receives, not later than the close of business on the third
\n Business Day preceding the Change of Control Purchase Date, a
\n telegram, facsimile transmission or letter setting forth the name
\n of the Holder, the principal amount of the Notes delivered for
\n purchase and a statement that such Holder is withdrawing his or
\n her election to have such Notes purchased;<\/p>\n
(7) any other procedures that a Holder must follow to accept
\n an Change of Control Offer or effect withdrawal of such
\n acceptance; and<\/p>\n
42<\/p>\n
(8) the name and address of the Paying Agent.<\/p>\n
On the Change of Control Payment Date, the Company shall, to
\nthe extent lawful, (1) accept for payment Notes or portions thereof tendered
\npursuant to the Change of Control Offer, (2) deposit with the Paying Agent U.S.
\nlegal tender sufficient to pay the purchase price of all Notes or portions
\nthereof so tendered and (3) deliver or cause to be delivered to the Trustee
\nNotes so accepted together with an Officers’ Certificate stating that such Notes
\nor portions thereof were accepted for payment by the Company pursuant to this
\nSection 4.15. The Paying Agent shall promptly mail to each Holder so accepted
\npayment in an amount equal to the purchase price for such Notes, and the Company
\nshall execute and issue, and the Trustee shall promptly authenticate and mail to
\nsuch Holder, a new Note equal in principal amount to any unpurchased portion of
\nthe Notes surrendered; provided that each such new Note shall be issued in an
\noriginal amount in denominations of $1,000 and integral multiples thereof.<\/p>\n
(c) The Company shall comply with the requirements of Rule
\n14e-1 under the Exchange Act and other securities laws and regulations
\nthereunder to the extent such laws and regulations are applicable in connection
\nwith the repurchase of Notes pursuant to a Change of Control Offer. To the
\nextent that the provisions of any securities laws or regulations conflict with
\nthis Section 4.15, the Company shall comply with the applicable securities laws
\nand regulations and shall not be deemed to have breached its obligations under
\nthis Section 4.15 by virtue thereof.<\/p>\n
Section 4.16. Limitation on Restrictions on Distributions from Subsidiaries.<\/p>\n
The Company shall not, and shall not permit any of its
\nSubsidiaries to, create or otherwise cause or suffer to exist or become
\neffective any consensual encumbrance or restriction (other than encumbrances or
\nrestrictions imposed by law or by judicial or regulatory action or by provisions
\nin leases or other agreements that restrict the assignability thereof) on the
\nability of any Subsidiary of the Company to (i) pay dividends or make any other
\ndistributions on its Capital Stock or any other interest or participation in, or
\nmeasured by, its profits, owned by the Company or any of its other Subsidiaries,
\nor pay interest on or principal of any Indebtedness owed to the Company or any
\nof its other Subsidiaries, (ii) make loans or advances to the Company or any of
\nits other Subsidiaries or (iii) transfer any of its properties or assets to the
\nCompany or any of its other Subsidiaries, in each case except for encumbrances
\nor restrictions existing under or by reason of (a) applicable law, (b) the
\nCredit Agreements, (c) Existing Indebtedness, (d) any restrictions under any
\nagreement evidencing any Acquired Indebtedness that was permitted to be incurred
\npursuant to this Indenture and which was not incurred in anticipation or
\ncontemplation of the related acquisition, provided that such restrictions and
\nencumbrances only apply to assets that were subject to such restrictions and
\nencumbrances prior to the acquisition of such assets by the Company or its
\nSubsidiaries, (e) restrictions or encumbrances replacing those permitted by
\nclause (b), (c) or (d) above which, taken as a whole, are not materially more
\nrestrictive, (f) this Indenture, (g) any restrictions and encumbrances arising
\nin connection with Refinancing Indebtedness; provided, however, that any
\nrestrictions or encumbrances of the type described in this clause (g) that arise
\nunder such Refinancing Indebtedness are not, taken as a whole, materially more
\nrestrictive than those under the agreement creating or evidencing the
\nIndebtedness being refunded or refinanced, (h) any restrictions with respect to
\na Subsidiary of the Company imposed pursuant to an agreement that has been
\nentered into for the sale or other disposition of all or substantially all of
\nthe Capital Stock or assets of such Subsidiary, (i) any agreement restricting
\nthe sale or other disposition of property securing Indebtedness if such
\nagreement does not expressly restrict the<\/p>\n
43<\/p>\n
ability of a Subsidiary of the Company to pay dividends or make loans or
\nadvances and (j) customary restrictions in purchase money debt or leases
\nrelating to the property covered thereby.<\/p>\n
Section 4.17. Limitations on Layering Indebtedness.<\/p>\n
The Company will not, and will not permit any of its
\nSubsidiaries to, directly or indirectly, incur any Indebtedness that purports to
\nbe by its terms subordinated to any other Indebtedness of the Company or such
\nSubsidiary, as the case may be, unless such Indebtedness is also expressly
\nsubordinated to the Notes to the same extent and in the same manner as such
\nIndebtedness is subordinated to such other Indebtedness.<\/p>\n
ARTICLE 5<\/p>\n
SURVIVING ENTITY<\/p>\n
Section 5.01. Limitations on Mergers and Consolidations.<\/p>\n
The Company shall not consolidate or merge with or into, or
\nsell, lease, convey or otherwise dispose of all or substantially all of its
\nassets, or assign any of its obligations under the Notes or this Indenture, to
\nany Person unless: (i) the Person formed by or surviving such consolidation or
\nmerger (if other than the Company), or to which such sale, lease, conveyance or
\nother disposition or assignment shall be made (collectively, the “Successor”),
\nis a corporation organized and existing under the laws of the United States or
\nany State thereof or the District of Columbia, and the Successor assumes by
\nsupplemental indenture in a form satisfactory to the Trustee all of the
\nobligations of the Company under the Notes and this Indenture; (ii) immediately
\nafter giving effect to such consolidation, merger, sale, lease, conveyance or
\nother disposition or assignment and the use of any net proceeds therefrom on a
\npro forma basis, no Default or Event of Default shall have occurred and be
\ncontinuing; (iii) immediately after giving effect to such consolidation, merger,
\nsale, lease, conveyance or other disposition or assignment and the use of any
\nnet proceeds therefrom on a pro forma basis, the Consolidated Net Worth of the
\nCompany or the Successor, as the case may be, would be at least equal to the
\nConsolidated Net Worth of the Company immediately prior to such transaction;
\n(iv) immediately after giving effect to such consolidation, merger, sale, lease,
\nconveyance or other disposition or assignment and the use of any net proceeds
\ntherefrom on a pro forma basis, the EBITDA Coverage Ratio of the Company or the
\nSuccessor, as the case may be, would be such that the Company or the Successor,
\nas the case may be, would be entitled to incur at least $1.00 of additional
\nIndebtedness under the EBITDA Coverage Ratio test in Section 4.11 hereof; and
\n(v) the Company shall have delivered to the Trustee an Officers’ Certificate and
\nan Opinion of Counsel, each stating that such consolidation, merger, sale,
\nlease, conveyance or other disposition or assignment complies with the
\nprovisions of this Indenture.<\/p>\n
Section 5.02. Successor Substituted.<\/p>\n
Upon any consolidation, merger, conveyance or any transfer of
\nall or substantially all of the assets of the Company in accordance with Section
\n5.01 hereof, the surviving entity formed by such consolidation or into which the
\nCompany or any such Subsidiary is merged or to which such transfer is made shall
\nsucceed to, and be substituted for, and may exercise every right and power of,
\nthe
\n 44<\/p>\n
Company or such Subsidiary, as the case may be, under this Indenture with the
\nsame effect as if such surviving entity had been named as the Company or such
\nSubsidiary, as the case may be herein, and thereafter the predecessor entity
\nshall be relieved of all obligations and covenants under this Indenture and the
\nNotes.<\/p>\n
ARTICLE 6<\/p>\n
DEFAULTS AND REMEDIES<\/p>\n
Section 6.01. Events of Default.<\/p>\n
An “Event of Default” means each one of the following events
\nwhich shall have occurred and be continuing (whatever the reason for such Event
\nof Default and whether it shall be voluntary or involuntary or be effected by
\noperation of law or pursuant to any judgment, decree or order of any court or
\nany order, rule or regulation of any administrative or governmental body):<\/p>\n
(a) default in the payment of any installment of interest upon
\n any of the Notes as and when the same shall become due and payable, and
\n continuance of such default for a period of 30 days;<\/p>\n
(b) default in the payment of all or any part of the
\n principal, or make-whole amount, if any, on any of the Notes as and
\n when the same shall become due and payable either at its Stated
\n Maturity, upon any redemption, by declaration or otherwise;<\/p>\n
(c) failure by the Company to comply with its obligations
\n or covenants described under Section 4.12, Section 4.15 or Article 5
\n hereof;<\/p>\n
(d) failure on the part of the Company duly to observe or
\n perform any other of the covenants or agreements on the part of the
\n Company in the Notes or this Indenture (other than the covenants
\n referred to in clauses (a), (b) and (c) above) for a period of 60 days
\n after the date on which written notice specifying such failure, stating
\n that such notice is a “Notice of Default” under this Indenture and
\n demanding that the Company remedy the same, shall have been given by
\n registered or certified mail, return receipt requested, to the Company
\n by the Trustee, or to the Company and the Trustee by the holders of at
\n least 25% in aggregate principal amount of the outstanding Notes;<\/p>\n
(e) default under any bond, debenture, note or other evidence
\n of indebtedness for money borrowed by the Company or any Subsidiary of
\n the Company or under any mortgage, indenture or instrument under which
\n there may be issued or by which there may be secured or evidenced any
\n indebtedness for money borrowed by the Company or any Subsidiary of the
\n Company, whether such indebtedness now exists or shall hereafter be
\n created, if (i) such default results in such indebtedness becoming or
\n being declared due and payable prior to the date on which it would
\n otherwise become due and payable, (ii) the principal amount of such
\n indebtedness, together with the principal amount of any other such
\n indebtedness which has been so accelerated, aggregates $25,000,000 or
\n more at any one time outstanding and (iii) such indebtedness is not
\n discharged, or such acceleration is not rescinded or annulled, within a<\/p>\n
45<\/p>\n
period of 10 days after there shall have been given to the Company by
\n the Trustee or to the Company and the Trustee by the holders of at
\n least 25% in aggregate principal amount of the outstanding Notes a
\n written notice specifying such default and requiring the Company to
\n cause such Indebtedness to be discharged or cause such acceleration to
\n be rescinded or annulled;<\/p>\n
(f) a court having jurisdiction in the premises shall enter a
\n decree or order for relief in respect of the Company or any Significant
\n Subsidiary in an involuntary case under any applicable bankruptcy,
\n insolvency or other similar law now or hereafter in effect, or
\n appointing a receiver, liquidator, assignee, custodian, trustee,
\n sequestrator or similar official of the Company or any Significant
\n Subsidiary for any substantial part of its or their property or
\n ordering the winding up or liquidation of its or their affairs, and
\n such decree or order shall remain unstayed and in effect for a period
\n of 60 consecutive days; or<\/p>\n
(g) the Company or any Significant Subsidiary shall commence a
\n voluntary case under any applicable bankruptcy, insolvency or other
\n similar law now or hereafter in effect, or consent to the entry of an
\n order for relief in an involuntary case under any such law, or consent
\n to the appointment or taking possession by a receiver, liquidator,
\n assignee, custodian, trustee, sequestrator (or similar official) of the
\n Company or any Significant Subsidiary or for any substantial part of it
\n or their property, or make any general assignment for the benefit of
\n creditors.<\/p>\n
Section 6.02. Acceleration.<\/p>\n
If an Event of Default (other than an Event of Default
\nspecified in Section 6.01(f) or 6.01(g) hereof relating to the Company) shall
\nhave occurred and be continuing under this Indenture, the Trustee, by written
\nnotice to the Company, or the Holders of at least 25% in aggregate principal
\namount of the Notes then outstanding by written notice to the Company and the
\nTrustee, may declare all amounts owing under the Notes to be due and payable.
\nUpon effectiveness of such acceleration, the aggregate principal of, make-whole
\namount, if any, and interest on the outstanding Notes shall immediately become
\ndue and payable. At any time after such acceleration but before a judgment or
\ndecree based on such acceleration is obtained by the Trustee, or any Holder, the
\nHolders of a majority in aggregate principal amount of outstanding Notes, by
\nwritten notice to the Company and the Trustee, may rescind and annul such
\nacceleration if:<\/p>\n
(a) the Company has paid or deposited with the Trustee a sum
\n sufficient to pay:<\/p>\n
(1) all overdue interest on the Notes;<\/p>\n
(2) all unpaid principal of and make-whole amount, if any,
\n on any of the outstanding Notes that has become due otherwise
\n than by such declaration of acceleration and interest thereon at
\n the rate borne by the Notes;<\/p>\n
(3) to the extent that payment of such interest is lawful,
\n interest upon overdue interest and overdue principal at the rate
\n borne by the Notes;<\/p>\n
(4) all sums paid or advanced by the Trustee under this
\n Indenture and the reasonable compensation, expenses,
\n disbursements and advances of the Trustee, its agents and
\n counsel;<\/p>\n
46<\/p>\n
(b) all Events of Default, other than the non-payment of amounts
\n of principal of, make-whole amount, if any, or interest on the Notes
\n that has become due solely by such declaration of acceleration, have
\n been cured or waived; and<\/p>\n
(c) in the event of the cure or waiver of an Event of Default
\n with respect to the Company of the type described in Section 6.01(f)
\n or 6.01(g) hereof, the Trustee shall have received an Officers’
\n Certificate and an Opinion of Counsel that such Event of Default has
\n been cured or waived.<\/p>\n
No such rescission shall affect any subsequent Default or
\nimpair any right consequent thereto.<\/p>\n
In case an Event of Default with respect to the Company of the
\ntype described in Section 6.01(f) or 6.01(g) hereof shall occur, the aggregate
\nprincipal of, make-whole amount, if any, and interest on the outstanding Notes
\nshall immediately become due and payable without any declaration or other act on
\nthe part of the Trustee or the Holders.<\/p>\n
Section 6.03. Other Remedies.<\/p>\n
If an Event of Default occurs and is continuing, the Trustee
\nmay pursue any available remedy by proceeding at law or in equity to collect the
\npayment of principal of, or make-whole amount, if any, and interest on the Notes
\nor to enforce the performance of any provision of the Notes or this Indenture
\nand may take any necessary action requested of it as Trustee to settle,
\ncompromise, adjust or otherwise conclude any proceedings to which it is a party.<\/p>\n
The Trustee may maintain a proceeding even if it does not
\npossess any of the Notes or does not produce any of them in the proceeding. A
\ndelay or omission by the Trustee or any Holder in exercising any right or remedy
\naccruing upon an Event of Default shall not impair the right or remedy or
\nconstitute a waiver of or acquiescence in the Event of Default. No remedy is
\nexclusive of any other remedy. All available remedies are cumulative to the
\nextent permitted by law.<\/p>\n
Section 6.04. Waiver of Existing Defaults and Events of Default.<\/p>\n
Subject to Sections 2.09, 6.02, 6.07 and 8.02 hereof, the
\nHolders of a majority in principal amount of the Notes then outstanding have the
\nright to waive existing Defaults under or in compliance with any provision of
\nthis Indenture or the Notes except a continuing Default in the payment of the
\nprincipal of, or interest or make-whole amount, if any, on any Note as specified
\nin clauses (a) and (b) of Section 6.01 hereof or in respect of a covenant or a
\nprovision which cannot be modified or amended without the consent of all Holders
\nas provided for in Section 8.02 hereof. The Company shall deliver to the Trustee
\nan Officers’ Certificate stating that the requisite percentage of Holders have
\nconsented to such waiver and attach copies of such consents. In case of any such
\nwaiver, the Company, the Trustee and the Holders shall be restored to their
\nformer positions and rights hereunder and under the Notes, respectively. This
\nparagraph of this Section 6.04 shall be in lieu of ss. 316(a)(1)(B) of the TIA
\nand such ss. 316(a)(1)(B) of the TIA is hereby expressly excluded from this
\nIndenture and the Notes, as permitted by the TIA.<\/p>\n
Upon any such waiver, such Default shall cease to exist and be
\ndeemed to have been cured and not to have occurred, and any Event of Default
\narising therefrom shall be deemed to have<\/p>\n
47<\/p>\n
been cured and not to have occurred for every purpose of this Indenture, but no
\nsuch waiver shall extend to any subsequent or other Default or Event of Default
\nor impair any right consequent thereto.<\/p>\n
Section 6.05. Control by Majority.<\/p>\n
Subject to Section 2.09 hereof, the Holders of a majority in
\nprincipal amount of the then outstanding Notes shall have the right to direct
\nthe time, method and place of conducting any proceeding for exercising any
\nremedy available to the Trustee or exercising any trust or power conferred on
\nthe Trustee by this Indenture. The Trustee, however, may refuse to follow any
\ndirection that conflicts with law or this Indenture or that the Trustee
\ndetermines in its reasonable judgment may be unduly prejudicial to the rights of
\nanother Holder not taking part in such direction, and the Trustee shall have the
\nright to decline to follow any such direction if the Trustee, being advised by
\ncounsel, determines that the action so directed may not lawfully be taken or if
\nthe Trustee in good faith shall, by a Trust Officer, determine that the
\nproceedings so directed may involve it in personal liability; provided that the
\nTrustee may take any other action deemed proper by the Trustee which is not
\ninconsistent with such direction. In the event the Trustee takes any action or
\nfollows any direction pursuant to this Indenture, the Trustee shall be entitled
\nto indemnification satisfactory to it in its sole discretion against any loss or
\nexpense caused by taking such action or following such direction. This Section
\n6.05 shall be in lieu of Section 316(a)(1)(A) of the TIA, and such Section
\n316(a)(1)(A) of the TIA is hereby expressly excluded from this Indenture and the
\nNotes, as permitted by the TIA.<\/p>\n
Section 6.06. Limitation on Suits.<\/p>\n
Subject to Section 6.07 hereof, no Holder has any right to
\ninstitute any proceeding with respect to this Indenture or any remedy hereunder
\nunless:<\/p>\n
(1) the Holder gives the Trustee written notice of a
\n continuing Event of Default;<\/p>\n
(2) the Holders of at least 25% in aggregate principal
\n amount of the outstanding Notes make a written request to the
\n Trustee to pursue the remedy;<\/p>\n
(3) such Holder or Holders offer to the Trustee indemnity
\n reasonably satisfactory to the Trustee against any loss,
\n liability or expense which may be incurred in compliance with
\n such request;<\/p>\n
(4) the Trustee fails to institute such proceeding within 60
\n calendar days after receipt of such notice and the offer of
\n indemnity; and<\/p>\n
(5) the Trustee has not received directions inconsistent
\n with such written request during such 60-day period by the
\n Holders of a majority in aggregate principal amount of then
\n outstanding Notes.<\/p>\n
A Holder may not use this Indenture to prejudice the rights of
\nanother Holder or to obtain a preference or priority over another Holder.<\/p>\n
48<\/p>\n
Section 6.07. Rights of Holders To Receive Payment.<\/p>\n
Notwithstanding any other provision of this Indenture, the
\nright of any Holder to receive payment of principal of, or make-whole amount, if
\nany, or accrued interest on any Note held by such Holder on or after the
\nrespective due dates expressed in such Note, or to bring suit for the
\nenforcement of any such payment on or after such respective dates, is absolute
\nand unconditional (subject to the terms of this Indenture) and shall not be
\nimpaired or affected without the consent of such Holder.<\/p>\n
Section 6.08. Collection Suit by Trustee.<\/p>\n
If an Event of Default occurs and is continuing, the Trustee
\nmay recover judgment in its own name and as trustee of an express trust against
\nthe Company for the whole amount of unpaid principal, make-whole amount, if any,
\nand accrued interest remaining unpaid, together with, to the extent that payment
\nof such interest is lawful, interest on overdue principal and interest on
\noverdue installments of interest, in each case at the rate set forth in Section
\n4.01 hereof, and such further amounts as shall be sufficient to cover the costs
\nand expenses of collection, including the reasonable compensation, expenses,
\ndisbursements and advances of the Trustee, its agents and counsel.<\/p>\n
Section 6.09. Trustee May File Proofs of Claim.<\/p>\n
The Trustee may file such proofs of claim and other papers or
\ndocuments as may be necessary or advisable in order to have the claims of the
\nTrustee (including any claim for the reasonable compensation, expenses,
\ndisbursements and advances of the Trustee, its agents and counsel) and the
\nHolders allowed in any judicial proceedings relative to the Company (or any
\nother obligor upon the Notes), its creditors or its property and shall be
\nentitled and empowered to collect and receive any monies or other property
\npayable or deliverable on any such claims and to distribute the same after
\ndeduction of its charges and expenses to the extent that any such charges and
\nexpenses are not paid out of the estate in any such proceedings and any
\ncustodian in any such judicial proceeding is hereby authorized by each Holder to
\nmake such payments to the Trustee, and in the event that the Trustee shall
\nconsent to the making of such payments directly to the Holders, to pay to the
\nTrustee any amount due to it for the reasonable compensation, expenses,
\ndisbursements and advances of the Trustee, its agents and counsel, and any other
\namounts due the Trustee under Section 7.07 hereof.<\/p>\n
Nothing herein contained shall be deemed to authorize the
\nTrustee to authorize or consent to or accept or adopt on behalf of any Holder
\nany plan or reorganization, arrangement, adjustment or composition affecting the
\nNotes or the rights of any Holder thereof, or to authorize the Trustee to vote
\nin respect of the claim of any Holder in any such proceedings.<\/p>\n
Section 6.10. Priorities.<\/p>\n
If the Trustee collects any money pursuant to this Article 6,
\nit shall pay out the money in the following order:<\/p>\n
FIRST: to the Trustee for amounts due under Section 7.07
\nhereof;<\/p>\n
SECOND: if the Holders are forced to proceed against the
\nCompany directly without the Trustee, to Holders for their collection costs; and<\/p>\n
49<\/p>\n
THIRD: to Holders for amounts due and unpaid on the Notes for
\nprincipal, make-whole amount, if any, and interest as to each, ratably, without
\npreference or priority of any kind, according to the amounts due and payable on
\nthe Notes.<\/p>\n
The Trustee, upon prior written notice to the Company, may fix
\na Record Date and payment date for any payment to Holders pursuant to this
\nSection 6.10.<\/p>\n
Section 6.11. Undertaking for Costs.<\/p>\n
In any suit for the enforcement of any right or remedy under
\nthis Indenture or in any suit against the Trustee for any action taken or
\nomitted by it as Trustee, a court in its discretion may require the filing by
\nany party litigant in the suit of an undertaking to pay the costs of the suit,
\nand the court in its discretion may assess reasonable costs, including
\nreasonable attorneys’ fees, against any party litigant in the suit, having due
\nregard to the merits and good faith of the claims or defenses made by the party
\nlitigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
\nHolder pursuant to Section 6.07 hereof or a suit by Holders of more than 10% in
\nprincipal amount of the Notes then outstanding.<\/p>\n
ARTICLE 7<\/p>\n
TRUSTEE<\/p>\n
Section 7.01. Duties of Trustee.<\/p>\n
(a) If an Event of Default actually known to a Trust Officer
\nof the Trustee has occurred and is continuing, the Trustee shall exercise such
\nrights and powers vested in it by this Indenture and use the same degree of care
\nand skill in their exercise as a prudent Person would exercise under the
\ncircumstances in the conduct of such Person’s own affairs.<\/p>\n
(b) Except during the continuance of a Default or an Event of
\nDefault:<\/p>\n
(1) The Trustee need perform only those duties and obligations
\nthat are specifically set forth in this Indenture.<\/p>\n
(2) In the absence of bad faith on its part, the Trustee may
\n conclusively rely, as to the truth of the statements and the
\n correctness of the opinions expressed therein, upon certificates
\n or opinions furnished to the Trustee and conforming to the
\n requirements of this Indenture but, in the case of any such
\n certificates or opinions which by any provision hereof are
\n specifically required to be furnished to the Trustee, the Trustee
\n shall be under a duty to examine the same to determine whether or
\n not they conform to the requirements of this Indenture.<\/p>\n
(c) Notwithstanding anything to the contrary herein contained,
\nthe Trustee may not be relieved from liability for its own negligent action, its
\nown negligent failure to act, or its own willful misconduct, except that:<\/p>\n
50<\/p>\n
(A) This paragraph does not limit the effect of
\n paragraph (b) of this Section 7.01.<\/p>\n
(B) The Trustee shall not be liable for any error of
\n judgment made in good faith by a Trust Officer of the Trustee, unless
\n it is proved that the Trustee was negligent in ascertaining the
\n pertinent facts.<\/p>\n
(C) The Trustee shall not be liable with respect to
\n any action it takes or omits to take in good faith in accordance with
\n a direction received by it pursuant to Sections 6.02, 6.04 and 6.05
\n hereof.<\/p>\n
(d) No provision of this Indenture shall require the Trustee
\nto expend or risk its own funds or otherwise incur any financial liability in
\nthe performance of any of its duties hereunder or to take or omit to take any
\naction under this Indenture or take any action at the request or direction of
\nHolders if it shall have reasonable grounds for believing that repayment of such
\nfunds is not assured to it or it does not receive from such Holders an indemnity
\nreasonably satisfactory to it against such risk, liability, loss, fee or expense
\nwhich might be incurred by it in compliance with such request or direction.<\/p>\n
(e) Whether or not expressly so provided, the provisions of
\nthe TIA and paragraphs (a), (b), (c) and (d) of this Section 7.01 shall govern
\nevery provision of this Indenture that in any way relates to the Trustee.<\/p>\n
(f) The Trustee shall not be liable for interest on any money
\nreceived by it except as the Trustee may agree in writing with the Company.
\nMoney held in trust by the Trustee need not be segregated from other funds
\nexcept to the extent required by the law or as otherwise agreed to in writing by
\nthe Trustee and the Company.<\/p>\n
(g) Unless otherwise specifically provided in this Indenture,
\nany demand, request direction or notice from the Company shall be sufficient if
\nsigned by an Officer of the Company.<\/p>\n
Section 7.02. Rights of Trustee.<\/p>\n
Subject to Section 7.01 hereof:<\/p>\n
(1) The Trustee may conclusively rely on any document believed
\nby it in good faith to be genuine and to have been signed or presented by the
\nproper Person. The Trustee need not investigate any fact or matter stated in the
\ndocument.<\/p>\n
(2) Before the Trustee acts or refrains from acting with
\nrespect to any matters contemplated by this Indenture or the Notes it may
\nrequire an Officers’ Certificate or an Opinion of Counsel, or both, which shall
\nconform to the provisions of Section 11.05 hereof. The Trustee shall be fully
\nprotected and shall not be liable for any action it takes or omits to take in
\ngood faith in reliance on such Officers’ Certificate or Opinion of Counsel.<\/p>\n
(3) The Trustee may act through agents, attorneys, custodians
\nor nominees and shall not be responsible for the misconduct or negligence of any
\nagent, attorney, custodian or nominee appointed with due care by it hereunder.<\/p>\n
51<\/p>\n
(4) The Trustee shall not be liable for any action it takes or
\nomits to take in good faith which it reasonably believes to be authorized or
\nwithin its rights or powers under this Indenture.<\/p>\n
(5) Before the Trustee acts or refrains from acting with
\nrespect to any matters contemplated by this Indenture or the Notes, the Trustee
\nmay consult with counsel of its selection, and the advice or opinion of such
\ncounsel, accountant, appraiser or other expert adviser whether retained or
\nemployed by the Company or the Trustee shall be full and complete authorization
\nand protection from liability in respect of any action taken, omitted or
\nsuffered by it hereunder in good faith and in reliance thereon.<\/p>\n
(6) The Trustee shall not be bound to make any investigation
\ninto the facts or matters stated in any resolution, certificate, statement,
\ninstrument, opinion, report, notice, request, direction, consent, order, bond,
\ndebenture or other paper or document, but the Trustee, in its discretion, may
\nmake such further inquiry or investigation into such facts or matters as it may
\nsee fit, and if the Trustee shall determine in good faith to make such further
\ninquiry or investigation, it shall be entitled to examine the books, records and
\npremises of the Company, personally or by agent or attorney at the sole cost of
\nthe Company and shall incur no liability or additional liability of any kind by
\nreason of such inquiry or investigation.<\/p>\n
(7) In no event shall the Trustee be liable for the selection
\nof investments or for investment losses incurred thereon. The Trustee shall have
\nno liability in respect of losses incurred as a result of the liquidation of any
\nsuch investment prior to its Stated Maturity or the failure of the party
\ndirecting such investment to provide timely written investment direction. The
\nTrustee shall have no obligation to invest or reinvest any amounts held
\nhereunder in the absence of specific written investment direction.<\/p>\n
(8) The rights, privileges, immunities and protections
\nafforded to the Trustee pursuant to this Indenture (including, without
\nlimitation, the right to be indemnified) shall also be afforded to the Trustee
\nin each of its capacities hereunder and each Paying Agent, Registrar,
\nCo-Registrar, Custodian, transfer agent or tender agent and each agent or other
\nPerson employed to act hereunder.<\/p>\n
(9) The Trustee shall not be deemed to have notice of any
\nDefault or Event of Default unless a Trust Officer of the Trustee has actual
\nknowledge thereof or unless written notice of any event which is in fact such a
\ndefault is received by the Trustee at the Corporate Trust Office of the Trustee,
\nand such notice references the Notes and this Indenture.<\/p>\n
(10) The Trustee may request that the Company deliver an
\nOfficers’ Certificate setting forth the names of individuals and\/or titles of
\nofficers authorized at such time to take specified actions pursuant to this
\nIndenture, which Officers’ Certificate may be signed by any person authorized to
\nsign an Officers’ Certificate, including any person specified as so authorized
\nin any such certificate previously delivered and not superseded.<\/p>\n
Section 7.03. Individual Rights of Trustee.<\/p>\n
The Trustee in its individual or any other capacity may become
\nthe owner or pledgee of Notes and may make loans to, accept deposits from,
\nperform services for or otherwise deal with the Company, or any Affiliates
\nthereof, with the same rights it would have if it were not Trustee. Any<\/p>\n
52<\/p>\n
Agent may do the same with like rights. The Trustee, however, shall be subject
\nto Sections 7.10 and 7.11 hereof.<\/p>\n
Section 7.04. Trustee’s Disclaimer.<\/p>\n
The Trustee shall not be responsible for and makes no
\nrepresentation as to the validity or adequacy of this Indenture or the Notes or
\nany recitals therein, it shall not be accountable for the Company’s use of the
\nproceeds from the sale of Notes or any money paid to the Company pursuant to the
\nterms of this Indenture and it shall not be responsible for any statement in the
\nNotes other than its certificate of authentication.<\/p>\n
Section 7.05. Notice of Defaults.<\/p>\n
If a Default or an Event of Default occurs and is continuing
\nand is known to a Trust Officer of the Trustee, the Trustee shall mail to each
\nHolder notice of the uncured Default or Event of Default within 5 days after
\nobtaining knowledge thereof. Except in the case of a Default or an Event of
\nDefault in payment of principal of, make-whole amount, if any, or interest on,
\nany Note, including an accelerated payment and the failure to make payment on
\nthe Change of Control Payment Date pursuant to a Change of Control Offer or on
\nthe Excess Proceeds Payment Date pursuant to an Asset Sale Offer, and except in
\nthe case of a failure to comply with Article 5 hereof the Trustee may withhold
\nthe notice if and so long as a committee of its Trust Officers in good faith
\ndetermines that withholding the notice is in the best interest of the Holders.
\nThis Section 7.05 shall be in lieu of the proviso to Section 315(b) of the TIA,
\nand such proviso of Section 315(b) of the TIA is hereby expressly excluded from
\nthis Indenture and the Notes, as permitted by the TIA.<\/p>\n
Section 7.06. Reports by Trustee to Holders.<\/p>\n
If required by TIA Section 313(a), within 60 days after May 15
\nof any year, commencing on May 15, 2001, the Trustee shall transmit by mail to
\neach Holder a brief report dated as of such May 15 that complies with TIA
\nSection 313(a). The Trustee also shall comply with the reporting requirements of
\nTIA Sections 313(b), (c) and (d).<\/p>\n
A copy of each such report at the time of such mailing to
\nHolders shall be mailed to the Company and, if the Notes are listed on a stock
\nexchange, filed with the Commission and each stock exchange on which the Notes
\nare listed as provided by TIA Section 313(d). The Company shall promptly notify
\nthe Trustee when the Notes are listed on any stock exchange and any delisting
\nthereof.<\/p>\n
Section 7.07. Compensation and Indemnity.<\/p>\n
The Company shall pay to the Trustee from time to time such
\ncompensation as may from time to time be agreed in writing between the Company
\nand the Trustee for its services hereunder (which compensation shall not be
\nlimited by any provision of law in regard to the compensation of a trustee of an
\nexpress trust). Except as otherwise provided herein, the Company shall reimburse
\nthe Trustee upon request for all reasonable disbursements, expenses and advances
\nincurred or made by it in connection with its duties under this Indenture,
\nincluding the reasonable compensation, disbursements and expenses of the
\nTrustee’s agents, counsel, custodians and nominees, except for any such
\ndisbursement or expense as may be attributable to the Trustee’s negligence, bad
\nfaith or willful misconduct.<\/p>\n
53<\/p>\n
The Company shall indemnify each of the Trustee and its
\nofficers, directors, employees and agents and any predecessor Trustee and its
\nofficers, directors, employees and agents for, and hold it or them harmless
\nagainst, any and all loss, damage, claim, liability or reasonable expense,
\nincluding taxes (other than franchise taxes and taxes based on the income of the
\nTrustee) incurred by it or them in connection with the acceptance or performance
\nof its duties under this Indenture and any other documents and transactions in
\nconnection therewith including the reasonable costs and expenses of defending
\nitself against any claim (whether asserted by the Company, or any Holder or any
\nother Person) or liability in connection with the exercise or performance of any
\nof its or their powers or duties hereunder (including, without limitation,
\nsettlement costs, provided any settlement with respect to which indemnification
\nis sought shall have been consented to by the Company). The Trustee shall notify
\nthe Company in writing promptly of any claim asserted against the Trustee for
\nwhich it may seek indemnity. However, the failure by the Trustee to so notify
\nthe Company shall not relieve the Company of its obligations hereunder except to
\nthe extent the Company is prejudiced thereby. This Section 7.07 shall survive
\nthe termination of this Indenture and the earlier resignation or removal of the
\nTrustee.<\/p>\n
Notwithstanding the foregoing, the Company need not reimburse
\nthe Trustee for any expense or indemnify it against any loss, damage, claim or
\nliability incurred by the Trustee through its negligence, bad faith or willful
\nmisconduct. To secure the payment obligations of the Company in this Section
\n7.07, the Trustee shall have a lien prior to the Notes on all money or property
\nheld or collected by the Trustee except such money or property held in trust to
\npay principal of and interest on particular Notes.<\/p>\n
When the Trustee incurs expenses or renders services after an
\nEvent of Default specified in Section 6.01(f) or 6.01(g) hereof occurs, the
\nexpenses (including the reasonable charges and expenses of its counsel) and the
\ncompensation for the services are intended to constitute expenses of
\nadministration under any Federal or state bankruptcy, insolvency or similar law.<\/p>\n
The obligation of the Company under this Section 7.07 shall
\nsurvive the resignation or removal of the Trustee and the satisfaction and
\ndischarge of this Indenture.<\/p>\n
Section 7.08. Replacement of Trustee.<\/p>\n
The Trustee may resign by so notifying the Company in writing.
\nThe Holders of a majority in principal amount of the then outstanding Notes may
\nremove the Trustee by notifying the removed Trustee and the Company in writing
\nand may appoint a successor Trustee with the Company’s written consent. The
\nCompany may remove the Trustee at its election if:<\/p>\n
(1) the Trustee fails to comply with Section 7.10 hereof;<\/p>\n
(2) the Trustee is adjudged a bankrupt or an insolvent or an
\n order for relief is entered with respect to the Trustee under any
\n Bankruptcy Law;<\/p>\n
(3) a receiver or other public officer takes charge or
\n control of the Trustee or its property or affairs; or<\/p>\n
(4) the Trustee otherwise becomes incapable of acting.<\/p>\n
54<\/p>\n
If the Trustee resigns or is removed or if a vacancy exists in
\nthe office of Trustee for any reason, the Company shall promptly appoint a
\nsuccessor Trustee.<\/p>\n
No resignation or removal of the Trustee shall become
\neffective until the acceptance of appointment by the successor Trustee. If a
\nsuccessor Trustee does not take office within 30 days after the retiring Trustee
\nresigns or is removed, the retiring Trustee, the Company or the Holders of a
\nmajority in principal amount of the outstanding Notes may petition any court of
\ncompetent jurisdiction at the expense of the Company for the appointment of a
\nsuccessor Trustee.<\/p>\n
If the Trustee fails to comply with Section 7.10 hereof, any
\nHolder may petition any court of competent jurisdiction for the removal of the
\nTrustee and the appointment of a successor Trustee if the Trustee fails after
\nwritten request thereof by such Holder to comply with such Section 7.10.<\/p>\n
A successor Trustee shall deliver a written acceptance of its
\nappointment to the retiring Trustee and to the Company. Immediately following
\nsuch delivery, the resignation or removal of the retiring Trustee shall become
\neffective and the retiring Trustee shall, subject to its rights under Section
\n7.07 hereof, transfer all property held by it as Trustee to the successor
\nTrustee, and the successor Trustee, after any and all amounts then due and owing
\nthe Trustee hereunder have been paid in full, shall have all the rights, powers
\nand duties of the Trustee under this Indenture. A successor Trustee shall mail
\nnotice of its succession to each Holder. Notwithstanding replacement of the
\nTrustee pursuant to this Section 7.08, the Company’s obligations under Section
\n7.07 hereof shall continue for the benefit of the retiring Trustee.<\/p>\n
Section 7.09. Successor Trustee by Consolidation, Merger or Conversion.<\/p>\n
If the Trustee consolidates with, merges or converts into, or
\ntransfers all or substantially all of its corporate trust assets to, another
\ncorporation, subject to Section 7.10 hereof, the successor corporation without
\nany further act shall be the successor Trustee. In case at the time such
\nsuccessor or successors by merger, conversion or consolidation to the Trustee
\nshall succeed to the trusts created by this Indenture any of the Notes shall
\nhave been authenticated but not delivered, any such successor to the Trustee may
\nadopt the certificate of authentication of any predecessor trustee, and deliver
\nsuch Notes so authenticated; and in case at that time any of the Notes shall not
\nhave been authenticated, any such successor to the Trustee may authenticate such
\nNotes either in the name of any predecessor hereunder or in the name of the
\nsuccessor to the Trustee; and in all such cases such certificates shall have the
\nfull force which it is anywhere in the Notes or in this Indenture provided that
\nthe certificate of the Trustee shall have.<\/p>\n
Section 7.10. Eligibility; Disqualification.<\/p>\n
This Indenture shall always have a Trustee which shall be
\neligible to act as Trustee under TIA Sections 310(a)(1) and 310(a)(2). The
\nTrustee shall have a combined capital and surplus of at least $50,000,000 as set
\nforth in its most recent published annual report of condition. If the Trustee
\nhas or shall acquire any “conflicting interest” within the meaning of TIA
\nSection 310(b), the Trustee and the Company shall comply with the provisions of
\nTIA Section 310(b); provided, however, that there shall be excluded from the
\noperation of TIA Section 310(b)(1) any indenture or indentures under which other
\nsecurities or certificates of interest or participation in other securities of
\nthe Company are outstanding if the requirements for such exclusion set forth in
\nTIA Section 310(b)(1) are met. If at any<\/p>\n
55<\/p>\n
time the Trustee shall cease to be eligible in accordance with the provisions of
\nthis Section 7.10, the Trustee shall resign immediately in the manner and with
\nthe effect hereinbefore specified in this Article 7.<\/p>\n
Section 7.11. Preferential Collection of Claims Against Company.<\/p>\n
The Trustee shall comply with TIA Section 311(a), excluding
\nany creditor relationship listed in TIA Section 311(b). A Trustee who has
\nresigned or been removed shall be subject to TIA Section 311(a) to the extent
\nindicated therein.<\/p>\n
ARTICLE 8<\/p>\n
MODIFICATIONS, AMENDMENTS, SUPPLEMENTS AND WAIVERS<\/p>\n
Section 8.01. Without Consent of Holders.<\/p>\n
The Company, when authorized by a Board Resolution of the
\nCompany, and the Trustee may modify, amend or supplement this Indenture or the
\nNotes without notice to or consent of any Holder:<\/p>\n
(1) to cure any ambiguity, or to correct or supplement any
\n provision in this Indenture or the Notes or make any other
\n provisions with respect to matters or questions arising under
\n this Indenture or the Notes; provided that, in each case, such
\n provisions shall not adversely affect the interest of the
\n Holders;<\/p>\n
(2) to provide for uncertificated Notes in addition to or in
\n place of certificated Notes;<\/p>\n
(3) to provide for the assumption by a successor corporation
\n of the Company’s obligations under this Indenture;<\/p>\n
(4) to add guarantees with respect to the Notes;<\/p>\n
(5) to secure the Notes;<\/p>\n
(6) to add to the covenants of the Company or the Events of
\n Default for the benefit of Holders;<\/p>\n
(7) to surrender any right or power conferred on the
\n Company; or<\/p>\n
(8) to make any other change that does not adversely affect
\n the rights of any Holder or to comply with any requirement of the
\n Commission in connection with the qualification of this Indenture
\n under the Trust Indenture Act.<\/p>\n
56<\/p>\n
Section 8.02. With Consent of Holders.<\/p>\n
Subject to Section 6.07 hereof, the Company and the Trustee
\nmay modify, amend or supplement this Indenture or the Notes with the written
\nconsent of the Holders of a majority in principal amount of the then outstanding
\nNotes (including consents obtained in connection with a tender offer or exchange
\noffer for, or purchase of, the Notes). Subject to Sections 6.04 and 6.07 hereof,
\nthe Holders of a majority in principal amount of the then outstanding Notes may
\nwaive compliance by the Company with any provision of this Indenture or the
\nNotes. However, without the consent of each Holder affected (including consents
\nobtained in connection with a tender offer or exchange offer for, or purchase
\nof, the Notes), a modification, amendment, supplement or waiver, including a
\nwaiver pursuant to Section 6.04 hereof, may not:<\/p>\n
(1) change the Stated Maturity of the principal of, or
\n any installment of interest on, such Note or alter the optional
\n redemption provisions thereof;<\/p>\n
(2) reduce the principal amount of, or make-whole amount, if
\n any, or interest on, such Note or extend the time of payments under
\n the Notes;<\/p>\n
(3) modify the ranking of the Notes in a manner adverse to the
\n Holder;<\/p>\n
(4) change the place or currency of payment of principal of,
\n or make-whole amount, if any, or interest on, such Note;<\/p>\n
(5) alter the provisions with respect to the obligation of the
\n Company to make a Change of Control Offer in accordance with Section
\n 4.15 hereof or to make an Asset Sale Offer in accordance with Section
\n 4.12 hereof;<\/p>\n
(6) impair the right to institute suit for the enforcement of
\n any payment on or with respect to such Note; or<\/p>\n
(7) reduce the percentage in principal amount of outstanding
\n Notes, the consent of whose Holders is required for modification or
\n amendment of this Indenture or for waiver of compliance with certain
\n provisions of this Indenture or for waiver of certain Defaults or
\n Events of Default.<\/p>\n
After an amendment, supplement or waiver under this Section
\n8.02 becomes effective, the Company shall mail to the Holders a notice briefly
\ndescribing the amendment, supplement or waiver. Any failure of the Company to
\nmail such notice, or any defect therein, shall not, however, in any way impair
\nor affect the validity of any such supplemental indenture.<\/p>\n
Upon the request of the Company, accompanied by a Board
\nResolution authorizing the execution of any such supplemental indenture, and
\nupon the receipt by the Trustee of evidence reasonably satisfactory to the
\nTrustee of the consent of the Holders as aforesaid and upon receipt by the
\nTrustee of the documents described in Section 8.06 hereof, the Trustee shall
\njoin with the Company in the execution of such supplemental indenture unless
\nsuch supplemental indenture affects the Trustee’s own rights, duties or
\nimmunities under this Indenture, in which case the Trustee may in its own
\ndiscretion, but shall not be obligated to, enter into such supplemental
\nindenture.<\/p>\n
57<\/p>\n
It shall not be necessary for the consent of the Holders under
\nthis Section 8.02 to approve the particular form of any proposed amendment,
\nsupplement or waiver, but it shall be sufficient if such consent approves the
\nsubstance thereof.<\/p>\n
Section 8.03. Compliance with TIA.<\/p>\n
Every amendment to or supplement of this Indenture or the
\nNotes shall comply with the TIA as then in effect.<\/p>\n
Section 8.04. Revocation and Effect of Consents.<\/p>\n
Until an amendment, waiver or supplement becomes effective, a
\nconsent to it by a Holder is a continuing consent by the Holder and every
\nsubsequent Holder of a Note or portion of a Note that evidences the same debt as
\nthe consenting Holder’s Note, even if notation of the consent is not made on any
\nNote. Subject to the following paragraph, any such Holder or subsequent Holder
\nmay revoke the consent as to such Holder’s Note or portion of such Note by
\nnotice to the Trustee or the Company received before the date on which the
\nTrustee receives an Officers’ Certificate certifying that the Holders of the
\nrequisite principal amount of Notes have consented (and not theretofore revoked
\nsuch consent) to the amendment, supplement or waiver.<\/p>\n
The Company may, but shall not be obligated to, fix a Record
\nDate for the purpose of determining the Holders entitled to consent to any
\namendment, supplement or waiver. If a Record Date is fixed, then notwithstanding
\nthe last sentence of the immediately preceding paragraph, those Persons who were
\nHolders at such Record Date (or their duly designated proxies), and only those
\nPersons, shall be entitled to revoke any consent previously given, whether or
\nnot such Persons shall continue to be Holders after such Record Date. No such
\nconsent shall be valid or effective for more than 90 days after such Record
\nDate.<\/p>\n
After an amendment, supplement or waiver becomes effective, it
\nshall bind every Holder, unless it makes a change described in any of clauses
\n(1) through (7) of Section 8.02 hereof, in which case, the amendment, supplement
\nor waiver shall bind only each Holder of a Note who has consented to it and
\nevery subsequent Holder of a Note or portion of a Note that evidences the same
\ndebt as the consenting Holder’s Note; provided that any such waiver shall not
\nimpair or affect the right of any Holder to receive payment of principal of and
\ninterest on a Note, on or after the respective due dates expressed in such Note,
\nor to bring suit for the enforcement of any such payment on or after such
\nrespective dates without the consent of such Holder.<\/p>\n
Section 8.05. Notation on or Exchange of Notes.<\/p>\n
If an amendment, supplement, or waiver changes the terms of a
\nNote, the Trustee may request the Holder to deliver it to the Trustee. In such
\ncase, the Trustee shall place an appropriate notation on the Note about the
\nchanged terms and return it to the Holder. Alternatively, if the Company or the
\nTrustee so determine, in exchange for the Note the Company shall issue and the
\nTrustee shall authenticate a new Note that reflects the changed terms. Failure
\nto make the appropriate notation or issue a new Note shall not affect the
\nvalidity and effect of such amendment, supplement or waiver.<\/p>\n
58<\/p>\n
Section 8.06. Trustee To Sign Amendments, etc.<\/p>\n
The Trustee shall be entitled to receive, and shall be fully
\nprotected in relying upon, an Officers’ Certificate and an Opinion of Counsel
\nstating that the execution of any amendment, supplement or waiver authorized
\npursuant to this Article 8 is authorized or permitted by this Indenture and that
\nsuch amendment, supplement or waiver constitutes the legal, valid and binding
\nobligation of the Company, enforceable in accordance with its terms (subject to
\ncustomary exceptions). The Trustee may, but shall not be obligated to, execute
\nany such amendment, supplement or waiver which affects the Trustee’s own rights,
\nduties or immunities under this Indenture or otherwise.<\/p>\n
ARTICLE 9<\/p>\n
DISCHARGE OF INDENTURE; DEFEASANCE<\/p>\n
Section 9.01. Satisfaction and Discharge of Indenture.<\/p>\n
This Indenture shall be discharged and shall cease to be of
\nfurther effect (except those obligations referred to in the penultimate
\nparagraph of this Section 9.01) and the Trustee, on written demand of and at the
\nexpense of the Company, shall execute proper instruments acknowledging
\nsatisfaction and discharge of this Indenture, when either:<\/p>\n
(a) all Notes theretofore authenticated and delivered (other
\n than (i) Notes which have been destroyed, lost or stolen and which have
\n been replaced or paid as provided in Section 2.07 hereof and (ii) Notes
\n for whose payment money has theretofore been deposited in trust or
\n segregated and held in trust by the Company and thereafter repaid to
\n the Company or discharged from such trust) have been delivered to the
\n Trustee for cancellation; or<\/p>\n
(b) (i) either (A) pursuant to Article 3 hereof, the Company
\n shall have given notice to the Trustee and mailed a notice of
\n redemption to each Holder of the redemption of all of the Notes under
\n arrangements satisfactory to the Trustee for the giving of such notice
\n or (B) all Notes not theretofore delivered to the Trustee for
\n cancellation have become due and payable; (ii) the Company has
\n irrevocably deposited or caused to be deposited with the Trustee in
\n trust for the purpose an amount in U.S. legal tender sufficient to pay
\n and discharge the entire Indebtedness on such Notes not theretofore
\n delivered to the Trustee for cancellation, for the principal of,
\n make-whole amount, if any, and interest to the date of such deposit;
\n (iii) no Default or Event of Default with respect to this Indenture or
\n the Notes shall have occurred and be continuing on the date of such
\n deposit or shall occur as a result of such deposit and such deposit
\n will not result in a breach or violation of, or constitute a default
\n under, any other material instrument to which the Company is a party or
\n by which it is bound (other than a Default or Event of Default
\n resulting from the incurrence of Indebtedness, all or a portion of
\n which will be used to defease the Notes concurrently with such
\n incurrence); (iv) the Company has paid or caused to be paid all other
\n sums payable hereunder by the Company; and (v) the Company has
\n delivered to the Trustee (A) irrevocable instructions to apply the
\n deposited money toward payment of the Notes at the Stated Maturity
\n thereof, and (B) an Officers’ Certificate and an Opinion of Counsel
\n each stating that all conditions precedent herein provided for relating
\n to the satisfaction and discharge of this Indenture have been complied<\/p>\n
59<\/p>\n
with and that such satisfaction and discharge does not result in a
\n default under any material agreement or instrument then known to such
\n counsel which binds or affects the Company.<\/p>\n
Notwithstanding the foregoing paragraph, the Company’s
\nobligations in Article 2 and Sections 4.01, 4.07, 7.07 and 8.06 hereof shall
\nsurvive until the Notes are no longer outstanding pursuant to the last paragraph
\nof Section 2.08 hereof. After the Notes are no longer outstanding pursuant to
\nSection 2.08 hereof, the Company’s obligations under Section 7.07 and 8.06 shall
\nsurvive.<\/p>\n
After such delivery or irrevocable deposit, the Trustee upon
\nrequest shall acknowledge in writing the discharge of the Company’s obligations
\nunder the Notes and this Indenture except for those surviving obligations
\nspecified above.<\/p>\n
Section 9.02. Legal Defeasance.<\/p>\n
(a) The Company may, at its option by a Board Resolution of
\nthe Board of Directors of the Company, at any time, elect to have this Section
\n9.02 be applied to all outstanding Notes upon compliance with the conditions set
\nforth in Section 9.04 hereof.<\/p>\n
(b) Upon the Company’s exercise under paragraph (a) hereof of
\nthe option applicable to this paragraph (b), the Company shall, subject to the
\nsatisfaction of the conditions set forth in Section 9.04 hereof, be deemed to
\nhave been discharged from its obligations with respect to all outstanding Notes
\non the date the conditions set forth below are satisfied (hereinafter, “Legal
\nDefeasance”). For this purpose, Legal Defeasance means that the Company shall be
\ndeemed to have paid and discharged the entire Indebtedness represented by the
\noutstanding Notes, which shall thereafter be deemed to be “outstanding” only for
\nthe purposes of Section 9.05 hereof and the other Sections of this Indenture
\nreferred to in clauses (i) and (ii) below, and to have satisfied all its other
\nobligations under such Notes and this Indenture (and the Trustee, on demand of
\nand at the expense of the Company, shall execute proper instruments
\nacknowledging the same), except for the following provisions, which shall
\nsurvive until otherwise terminated or discharged hereunder: (i) the rights of
\nHolders of outstanding Notes to receive, solely from the trust fund described in
\nSection 9.05 hereof and as more fully set forth in such Section, payments in
\nrespect of the principal of, make-whole amount, if any, and interest on such
\nNotes when such payments are due on the Stated Maturity thereof (or, upon
\nredemption, if applicable), (ii) the Company’s obligations with respect to such
\nNotes under Article 2 and Section 4.07 hereof, (iii) the rights, powers, trusts,
\nduties and immunities of the Trustee hereunder and the Company’s obligations in
\nconnection therewith and (iv) this Article 9. Subject to compliance with this
\nArticle 9, the Company may exercise its option under this Section 9.02
\nnotwithstanding the prior exercise of its option under Section 9.03 below with
\nrespect to the Notes.<\/p>\n
Section 9.03. Covenant Defeasance.<\/p>\n
(a) The Company may, at its option by a Board Resolution of
\nthe Board of Directors of the Company, at any time, elect to have this Section
\n9.03 be applied to all outstanding Notes upon compliance with the conditions set
\nforth in Section 9.04 hereof.<\/p>\n
(b) Upon the Company’s exercise under paragraph (a) hereof of
\nthe option applicable to this paragraph (b), the Company shall, subject to the
\nsatisfaction of the conditions set forth in Section 9.04 hereof, be released
\nfrom its obligations under the covenants contained in Sections 4.05, 4.08 and
\n4.09 through 4.17, inclusive, and Article 5 hereof with respect to the
\noutstanding Notes<\/p>\n
60<\/p>\n
on and after the date the conditions set forth below are satisfied (hereinafter,
\n“Covenant Defeasance”), and the Notes shall thereafter be deemed not
\n“outstanding” for the purposes of any direction, waiver, consent or declaration
\nor act of Holders (and the consequences of any thereof) in connection with such
\ncovenants, but shall continue to be deemed “outstanding” for all other purposes
\nhereunder. For this purpose, such Covenant Defeasance means that, with respect
\nto the outstanding Notes, the Company may omit to comply with and shall have no
\nliability in respect of any term, condition or limitation set forth in any such
\ncovenant, whether directly or indirectly, by reason of any reference elsewhere
\nherein to any such covenant or by reason of any reference in any such covenant
\nto any other provision herein or in any other document and such omission to
\ncomply shall not constitute a Default or an Event or Default under Section
\n6.01(c) or 6.01(d) hereof, but, except as specified above, the remainder of this
\nIndenture, and such Notes shall be unaffected thereby. In addition, upon the
\nCompany’s exercise under paragraph (a) hereof of the option applicable to this
\nparagraph (b), subject to the satisfaction of the conditions set forth in
\nSection 9.04 hereof, Sections 6.01(c), 6.01(d) and 6.01(e) shall not constitute
\nEvents of Default.<\/p>\n
Section 9.04. Conditions to Legal Defeasance or Covenant Defeasance.<\/p>\n
The following shall be the conditions to the application of
\neither Section 9.02 or 9.03 hereof to the outstanding Notes:<\/p>\n
In order to exercise either Legal Defeasance or Covenant
\nDefeasance:<\/p>\n
(a) the Company must irrevocably deposit or cause to be
\n deposited with the Trustee, as trust funds in trust, specifically
\n pledged as security for, and dedicated solely to, the benefit of the
\n Holders, cash in U.S. dollars, or U.S. Government Obligations, or in
\n the case of Covenant Defeasance, corporate obligations rated at least
\n “A” by Standard & Poor’s Ratings Group or at least “A” by Moody’s
\n Investors Service, Inc. or a combination thereof, in such amounts as
\n will be sufficient, in the opinion of a nationally recognized firm of
\n independent public accountants, to pay and discharge the principal of,
\n make-whole amount, if any, and interest on the outstanding Notes on the
\n Stated Maturity thereof (or upon redemption, if applicable) of such
\n principal, make-whole amount, if any, or installment of interest;<\/p>\n
(b) no Default or Event of Default with respect to the Notes
\n shall have occurred and be continuing on the date of such deposit or,
\n insofar as an event of bankruptcy under clauses (f) or (g) of Section
\n 6.01 hereof is concerned, at any time during the period ending on the
\n 91st day after the date of such deposit;<\/p>\n
(c) such Legal Defeasance or Covenant Defeasance shall not
\n result in a breach or violation of, or constitute a default under, this
\n Indenture or any material agreement or instrument to which the Company
\n is a party or by which it is bound;<\/p>\n
(d) in the case of Legal Defeasance, the Company shall have
\n delivered to the Trustee an Opinion of Counsel stating that the Company
\n has received from, or there has been published by, the Internal Revenue
\n Service a ruling, or since the Issue Date, there has been a change in
\n applicable federal income tax law, in either case to the effect that,
\n and based thereon such opinion shall confirm that, the Holders of the
\n outstanding Notes of such series will not recognize income, gain or
\n loss for federal income tax purposes as a result of such defeasance and
\n will be subject to federal income tax on the same amounts, in the same
\n manner and at the same times as would have been the case if such
\n defeasance had not occurred; and<\/p>\n
61<\/p>\n
(e) in the case of Covenant Defeasance, the Company shall have
\n delivered to the Trustee an Opinion of Counsel to the effect that the
\n Holders of outstanding Notes of such series will not recognize income,
\n gain or loss for federal income tax purposes as a result of such
\n defeasance and will be subject to federal income tax on the same
\n amounts, in the same manner and at the same times as would have been
\n the case if such defeasance had not occurred; and<\/p>\n
(f) the Company shall have delivered to the Trustee an
\n Officers’ Certificate and an Opinion of Counsel, each stating that all
\n conditions precedent provided for relating to either the Legal
\n Defeasance or the Covenant Defeasance, as the case may be, have been
\n complied with.<\/p>\n
Section 9.05. Application of Trust Money.<\/p>\n
All money and U.S. Government Obligations deposited with the
\nTrustee pursuant to Section 9.01 or 9.04 hereof in respect of the outstanding
\nNotes shall be held in trust and applied by the Trustee, in accordance with the
\nprovisions of such Notes and this Indenture, to the payment, either directly or
\nthrough any Paying Agent as the Trustee may determine, to the Holders of such
\nNotes, of all sums due and to become due thereon in respect of principal,
\nmake-whole amount, if any, and accrued interest, but such money need not be
\nsegregated from other funds except to the extent required by law.<\/p>\n
Anything in this Article 9 to the contrary notwithstanding,
\nthe Trustee shall deliver or pay to the Company from time to time upon a written
\nrequest of the Company in the form of an Officers’ Certificate any money or U.S.
\nGovernment Obligations held by it as provided in Section 9.01 or 9.04 hereof
\nwhich, in the opinion of a nationally-recognized firm of independent public
\naccountants expressed in a written certification thereof delivered to the
\nTrustee, are in excess of the amount thereof which would then be required to be
\ndeposited to effect an equivalent Legal Defeasance or Covenant Defeasance.<\/p>\n
Section 9.06. Repayment to the Company.<\/p>\n
Subject to Sections 9.01, 9.,02, 9.03, 9.04, 9.05 and 9.07,
\nthe Trustee and the Paying Agent shall promptly pay to the Company upon request
\nany excess U.S. legal tender or U.S. Government Obligations held by them at any
\ntime and thereupon shall be relieved from all liability with respect to such
\nmoney. The Trustee and the Paying Agent shall pay to the Company upon request
\nany money held by them for the payment of principal, make-whole amount, if any,
\nor interest that remains unclaimed for two years; provided that the Trustee or
\nsuch Paying Agent, before being required to make any payment, may at the expense
\nof the Company cause to be published once in a newspaper of general circulation
\nin the City of New York or mail to each Holder entitled to such money notice
\nthat such money remains unclaimed, and that after a date specified therein which
\nshall be at least 30 days from the date of such publication or mailing, any
\nunclaimed balance of such money then remaining will be repaid to the Company.
\nAfter payment to the Company, Holders entitled to such money must look to the
\nCompany for payment as general creditors unless an applicable law designates
\nanother Person.<\/p>\n
62<\/p>\n
Section 9.07. Reinstatement.<\/p>\n
If the Trustee or Paying Agent is unable to apply any money or
\nU.S. Government Obligations in accordance with Section 9.01, 9.02 or 9.03 hereof
\nby reason of any legal proceeding or by reason of any order or judgment of any
\ncourt or governmental authority enjoining, restraining or otherwise prohibiting
\nsuch application, the Company’s obligations under this Indenture and the Notes
\nshall be revived and reinstated as though no deposit had occurred pursuant to
\nthis Article 9 until such time as the Trustee or Paying Agent is permitted to
\napply all such money and U.S. Government Obligations in accordance with Section
\n9.01 hereof; provided, however, that if the Company has made any payment of
\nprincipal of, make-whole amount, if any, or accrued interest on any Notes
\nbecause of the reinstatement of their obligations, the Company shall be
\nsubrogated to the rights of the Holders of such Notes to receive such payment
\nfrom the money and U.S. Government Obligations held by the Trustee or Paying
\nAgent.<\/p>\n
ARTICLE 10<\/p>\n
[INTENTIONALLY OMITTED]<\/p>\n
ARTICLE 11<\/p>\n
MISCELLANEOUS<\/p>\n
Section 11.01. TIA Controls.<\/p>\n
If any provision of this Indenture limits, qualifies or
\nconflicts with another provision which is required to be included in this
\nIndenture by the TIA, the required provision shall control.<\/p>\n
Section 11.02. Notices.<\/p>\n
Any notices or other communications required or permitted
\nhereunder shall be in writing, and shall be sufficiently given if made by hand
\ndelivery, by telecopier or registered or certified mail, postage prepaid, return
\nreceipt requested, addressed as follows:<\/p>\n
If to the Company:<\/p>\n
HEALTHSOUTH Corporation
\n One HealthSouth Parkway
\n Birmingham, Alabama 35243
\n Telephone No.: (205) 969-4977
\n Facsimile No.: (205) 969-4730
\n Attention: William W. Horton<\/p>\n
63<\/p>\n
If to the Trustee:<\/p>\n
The Bank of New York
\n 101 Barclay Street, Floor 21 West
\n New York, New York 10286
\n Telephone No.: (212) 815-5287
\n Facsimile No.: (212) 815-5915
\n Attention: Corporate Trust Trustee Administration<\/p>\n
The Company or the Trustee by written notice to the others may
\ndesignate additional or different addresses for subsequent notices or
\ncommunications. Any notice or communication to the Company or the Trustee, shall
\nbe deemed to have been given or made when actually received.<\/p>\n
Any notice or communication mailed to a Holder shall be mailed
\nby first-class mail, postage prepaid, at the address shown on the register kept
\nby the Registrar.<\/p>\n
Failure to mail a notice or communication to a Holder or any
\ndefect in it shall not affect its sufficiency with respect to other Holders. If
\na notice or communication to a Holder is mailed in the manner provided above, it
\nshall be deemed duly given, whether or not the addressee receives it.<\/p>\n
In case by reason of the suspension of regular mail service,
\nor by reason of any other cause, it shall be impossible to mail any notice as
\nrequired by this Indenture, then such method of notification as shall be made
\nwith the approval of the Trustee shall constitute a sufficient mailing of such
\nnotice.<\/p>\n
Section 11.03. Communications by Holders with Other Holders.<\/p>\n
Holders may communicate pursuant to TIA Section 312(b) with
\nother Holders with respect to their rights under this Indenture or the Notes.
\nThe Company, the Trustee, the Registrar and anyone else shall have the
\nprotection of TIA Section 312(c).<\/p>\n
Section 11.04. Certificate and Opinion as to Conditions Precedent.<\/p>\n
Upon any request or application by the Company to the Trustee
\nto take any action under this Indenture, the Company shall furnish to the
\nTrustee:<\/p>\n
(1) an Officers’ Certificate (which shall include the
\n statements set forth in Section 11.05 hereof) stating that, in the
\n opinion of the signers, all conditions precedent, if any, provided for
\n in this Indenture relating to the proposed action have been complied
\n with; and<\/p>\n
(2) an Opinion of Counsel (which shall include the statements
\n set forth in Section 11.05 hereof) stating that, in the opinion of
\n such counsel, all such conditions precedent, if any, provided for in
\n this Indenture relating to the proposed action have been complied
\n with.
\n 64<\/p>\n
Section 11.05. Statements Required in Certificate and Opinion.<\/p>\n
Each certificate and opinion with respect to compliance with a
\ncondition or covenant provided for in this Indenture shall include:<\/p>\n
(1) a statement that the person making such certificate or
\n opinion has read such covenant or condition and the definitions
\n relating thereto;<\/p>\n
(2) a brief statement as to the nature and scope of the
\n examination or investigation upon which the statements or opinions
\n contained in such certificate or opinion are based;<\/p>\n
(3) a statement that, in the opinion of such person, it or he
\n has made such examination or investigation as is reasonably necessary
\n to enable such person to express an informed opinion as to whether or
\n not such covenant or condition has been complied with; and<\/p>\n
(4) a statement as to whether or not, in the opinion of such
\n person, such covenant or condition has been complied with; provided,
\n however, that with respect to matters of fact, an Opinion of Counsel
\n may rely on an Officers’ Certificate or certificates of public
\n officials.<\/p>\n
Section 11.06. Rules by Trustee and Agents.<\/p>\n
The Trustee may make reasonable rules for action by or at
\nmeetings of Holders. The Registrar and Paying Agent may make reasonable rules
\nfor their functions.<\/p>\n
Section 11.07. Business Days; Legal Holidays.<\/p>\n
A “Business Day” is a day that is not a Legal Holiday. A
\n“Legal Holiday” is a Saturday, a Sunday, a federally-recognized holiday or a day
\non which banking institutions are not required to be open in the State of New
\nYork. If a payment date is a Legal Holiday at a place of payment, payment may be
\nmade at that place on the next succeeding day that is not a Legal Holiday, and
\nno interest shall accrue for the intervening period.<\/p>\n
Section 11.08. Governing Law.<\/p>\n
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND
\nCONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
\nCONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
\nPRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
\nTHE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
\nPROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.<\/p>\n
Section 11.09. Waiver of Trial by Jury.<\/p>\n
The Company hereby irrevocably waives any and all rights to
\ntrial by jury in any legal proceeding arising out of or relating to this
\nIndenture.<\/p>\n
65<\/p>\n
Section 11.10. Submission to Jurisdiction.<\/p>\n
The Company hereby consents to the non-exclusive jurisdiction
\nof a state or federal court situated in New York City, New York in connection
\nwith any dispute arising hereunder or under the Notes. The Company hereby
\nirrevocably waives, to the fullest extent permitted by applicable law, any
\nobjection which it may now or hereafter have to the laying of venue of any such
\nproceeding brought in such a court and any claim that such proceeding brought in
\nsuch a court has been brought in an inconvenient forum.<\/p>\n
Section 11.11. No Adverse Interpretation of Other Agreements.<\/p>\n
This Indenture may not be used to interpret another indenture,
\nloan, security or debt agreement of the Company or any Subsidiary thereof. No
\nsuch indenture, loan, security or debt agreement may be used to interpret this
\nIndenture.<\/p>\n
Section 11.12. No Recourse Against Others.<\/p>\n
No incorporator, director, officer, employee, stockholder or
\ncontrolling person, as such, of the Company shall have any liability for any
\nobligations of the Company under the Notes or this Indenture or for any claim
\nbased on, in respect of or by reason of such obligations or their creation. By
\naccepting a Note, each Holder shall waive and release all such liability. The
\nwaiver and release shall be part of the consideration for the issue of the
\nNotes.<\/p>\n
Section 11.13. Successors.<\/p>\n
All agreements of each of the Company in this Indenture and
\nthe Notes shall bind their respective successors. All agreements of the Trustee,
\nany additional trustee and any Paying Agents in this Indenture shall bind its
\nsuccessor.<\/p>\n
Section 11.14. Multiple Counterparts.<\/p>\n
The parties may sign multiple counterparts of this Indenture.
\nEach signed counterpart shall be deemed an original, but all of them together
\nrepresent one and the same agreement.<\/p>\n
Section 11.15. Table of Contents, Headings, etc.<\/p>\n
The table of contents, cross-reference sheet and headings of
\nthe Articles and Sections of this Indenture have been inserted for convenience
\nof reference only, are not to be considered a part hereof, and shall in no way
\nmodify or restrict any of the terms or provisions hereof.<\/p>\n
Section 11.16. Separability.<\/p>\n
Each provision of this Indenture shall be considered separable
\nand if for any reason any provision shall be invalid, illegal or unenforceable,
\nthe validity, legality and enforceability of the remaining provisions shall not
\nin any way be affected or impaired thereby to the extent allowed by law.<\/p>\n
66<\/p>\n
Section 11.17. Translation.<\/p>\n
The original and controlling version of this Indenture and any
\nrelated agreements shall be the English language version. All translations of
\nthis Indenture or any agreements related hereto into other languages shall be
\nfor the convenience of the parties only, and shall not control the meaning or
\napplication of this Indenture. All notices and other communications required or
\npermitted by this Indenture or any other transactional agreement must be in
\nEnglish or accompanied by an English translation, and the interpretation and
\napplication of such notices and other communications shall be based solely upon
\nthe English language version thereof.<\/p>\n
67<\/p>\n
IN WITNESS WHEREOF, the parties have caused this Indenture to
\nbe duly executed all as of the date and year first written above.<\/p>\n
Company:<\/p>\n
HEALTHSOUTH CORPORATION<\/p>\n
By: \/s\/ William T. Owens
\n ———————————<\/p>\n
Name: William T. Owens
\n Title: Executive Vice President and
\n Chief Financial Officer<\/p>\n
Trustee:<\/p>\n
THE BANK OF NEW YORK,
\n as Trustee<\/p>\n
By: \/s\/ Robert A. Massimillo
\n ————————————-
\n Name: Robert A. Massimillo
\n Title: Assistant Vice President<\/p>\n
EXHIBIT A<\/p>\n
[FORM OF SERIES A NOTE]<\/p>\n
CUSIP No.:
\n HEALTHSOUTH CORPORATION<\/p>\n
8 1\/2% SENIOR NOTE DUE 2008<\/p>\n
No. $ <\/p>\n
HEALTHSOUTH CORPORATION, a corporation incorporated in
\nDelaware (the “Company,” which term includes any successor entity), for value
\nreceived promises to pay to or registered assigns, the principal sum of $ on
\nFebruary 1, 2008.<\/p>\n
Interest Payment Dates: February 1 and August 1, commencing
\n August 1, 2001.<\/p>\n
Record Dates: January 15 and July 15.<\/p>\n
Reference is made to the further provisions of this Note
\ncontained herein and the Indenture (as defined), which will for all purposes
\nhave the same effect as if set forth at this place.<\/p>\n
IN WITNESS WHEREOF, the Company has caused this Note to be
\nsigned manually or by facsimile by its duly authorized directors, officers or
\nother authorized signatories.<\/p>\n
HEALTHSOUTH CORPORATION<\/p>\n
By:
\n —————————————
\n Name:
\n Title:<\/p>\n
By:
\n —————————————
\n Name:
\n Title:<\/p>\n
CERTIFICATE OF AUTHENTICATION<\/p>\n
Date: February 1, 2001<\/p>\n
This is one of the 8 1\/2% Senior Notes due 2008 referred to in
\nthe within-mentioned Indenture.<\/p>\n
THE BANK OF NEW YORK,
\n as Trustee<\/p>\n
By:
\n —————————————
\n Authorized Signatory
\n A-2<\/p>\n
(REVERSE OF SECURITY)<\/p>\n
8 1\/2% SENIOR NOTE DUE 2008<\/p>\n
1. Interest. HEALTHSOUTH CORPORATION, a corporation
\nincorporated in Delaware (the “Company”), promises to pay interest on the
\nprincipal amount of this Note at the rate per annum shown above. Interest on the
\nNotes will accrue from the most recent date on which interest has been paid or
\nduly provided for, or if no interest has been paid, from the date of the
\noriginal issuance of the Notes. The Company will pay interest semi-annually in
\narrears on each Interest Payment Date, commencing August 1, 2001. Interest will
\nbe computed on the basis of a 360-day year comprised of twelve 30-day months.<\/p>\n
The Company shall pay interest on overdue principal and on
\noverdue installments of interest (without regard to any applicable grace
\nperiods) to the extent lawful from time to time on demand at the rate borne by
\nthe Notes.<\/p>\n
2. Method of Payment. The Company shall pay interest on the
\nNotes (except defaulted interest) to the Persons who are the registered Holders
\nat the close of business on January 15 or July 15 immediately preceding the
\nInterest Payment Date (whether or not such day is a Business Day) even if the
\nNotes are canceled on registration of transfer or registration of exchange after
\nsuch Record Date. Holders must surrender Notes to a Paying Agent to collect
\nprincipal payments. Payments of principal and make-whole amount, if any, will be
\nmade (on presentation of such Notes if in certificated form) in U.S. legal
\ntender; provided, however, that the Company may pay principal, make-whole
\namount, if any, and interest by check payable in U.S. legal tender. The Company
\nmay deliver any such interest payment by check mailed to the address of the
\nPerson entitled thereto as such address will appear on the security register.<\/p>\n
3. Paying Agents and Registrar. Initially, The Bank of New
\nYork, a banking organization organized under the laws of New York (the
\n“Trustee”), will act as Paying Agent and the Trustee will act as Registrar. The
\nCompany may change any Paying Agents, Registrar or co-Registrar without notice
\nto the Holders. Neither the Company nor any of its Subsidiaries or Affiliates
\nmay act as Paying Agent but may act as Registrar or co-Registrar.<\/p>\n
4. Indenture. The Company issued this Note under an Indenture,
\ndated as of February 1, 2001 (the “Indenture”), by and among the Company and the
\nTrustee. This Note is one of a duly authorized issue of Initial Notes of the
\nCompany designated as its 8 1\/2% Senior Notes due 2008 (the “Notes”). The Notes
\ninclude the Initial Notes and the Exchange Notes issued pursuant to the
\nIndenture. The Initial Notes and the Exchange Notes are treated as a single
\nclass of securities under the Indenture. Capitalized terms herein are used as
\ndefined in the Indenture unless otherwise defined herein. The terms of the Notes
\ninclude those stated in the Indenture and those made part of the Indenture by
\nreference to the Trust Indenture Act of 1939 (15 U.S. Code ss.ss. 77aaa-77bbbb)
\n(the “TIA”), as in effect on the date of the Indenture. Notwithstanding anything
\nto the contrary herein, the Notes are subject to all such terms, and Holders of
\nNotes are referred to the Indenture and the TIA for a statement of them. The
\nNotes are general unsecured obligations of the Company.<\/p>\n
A-3<\/p>\n
5. [Intentionally Omitted.]<\/p>\n
6. Redemption.<\/p>\n
The Notes will be redeemable, in whole or in part, at the
\noption of the Company at any time at a redemption price equal to the greater of
\n(i) 100% of the principal amount of the Notes, plus accrued interest thereon to
\nthe date of redemption and (ii) as determined by a Quotation Agent (as defined
\nbelow), the sum of the present values of the remaining scheduled payments of
\nprincipal and interest thereon discounted, to the redemption date on a
\nsemi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
\nat the Adjusted Treasury Rate, plus accrued interest on the Notes to the date of
\nredemption. If a redemption date does not fall on an interest payment date,
\nthen, with respect to the interest payment immediately succeeding the redemption
\ndate, only the unaccrued portion of such interest payment as of the redemption
\ndate shall be included in any calculation pursuant to clause (ii) above. Any
\namount payable in excess of 100% of the principal amount of the Notes (other
\nthan accrued interest thereon) shall be referred to herein as the “make-whole
\namount.”<\/p>\n
“Adjusted Treasury Rate” means, with respect to any redemption
\ndate, the rate per annum equal to the semi-annual equivalent yield to maturity
\nof the Comparable Treasury Issue, assuming a price for the Comparable Treasury
\nIssue (expressed as a percentage of the principal amount) equal to the
\nComparable Treasury Price for such redemption date, plus 0.50%.<\/p>\n
“Comparable Treasury Issue” means the United States Treasury
\nsecurity selected by a Quotation Agent as having a maturity comparable to the
\nremaining term of the Notes to be redeemed that would be utilized, at the time
\nof selection and in accordance with customary financial practice, in pricing new
\nissues of corporate debt securities of comparable maturity to the remaining term
\nof such Notes.<\/p>\n
“Comparable Treasury Price” means, with respect to any
\nredemption date, (i) the average of the Reference Treasury Dealer Quotations for
\nsuch redemption date, after excluding the highest and lowest of such Reference
\nTreasury Dealer Quotations, or (ii) if the Trustee obtains three or fewer such
\nReference Treasury Dealer Quotations, the average of all such quotations.<\/p>\n
“Quotation Agent” means one of the Reference Treasury Dealers
\nappointed by the Trustee after consultation with the Company.<\/p>\n
“Reference Treasury Dealer” means (i) each of UBS Warburg LLC,
\nDeutsche Banc Alex. Brown Inc. and Chase Securities Inc. and their respective
\nsuccessors; provided, however, that if any of the foregoing shall cease to be a
\nprimary U.S. Government securities dealer in New York, New York (a “Primary
\nTreasury Dealer”), the Company shall substitute therefor another Primary
\nTreasury Dealer; and (ii) any other Primary Treasury Dealer selected by the
\nTrustee after consultation with the Company.<\/p>\n
“Reference Treasury Dealer Quotation” means, with respect to
\neach Reference Treasury Dealer and any redemption date, the average, as
\ndetermined by the Trustee, of the bid and asked prices for the Comparable
\nTreasury Issue (expressed in each case as a percentage of its principal amount)
\nquoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
\non the third business day preceding such redemption date.<\/p>\n
A-4<\/p>\n
If less than all of the Notes are to be redeemed at any time,
\nselection of the Notes to be redeemed will be made by the Trustee from among the
\noutstanding Notes on a pro rata basis, by lot or by any other method permitted
\nin the Indenture. On and after the redemption date, interest will cease to
\naccrue on the Notes or portions thereof called for redemption.<\/p>\n
The Notes will not be entitled to any sinking fund.<\/p>\n
7. Notice of Redemption. Notice of redemption under paragraph
\n6 of this Note will be mailed at least 30 days but not more than 60 days before
\nthe Redemption Date to each Holder of Notes to be redeemed at such Holder’s
\nregistered address.<\/p>\n
Except as set forth in the Indenture, if monies for the
\nredemption of the Notes called for redemption shall have been deposited with the
\nPaying Agent for redemption on such Redemption Date, then the Notes called for
\nredemption will cease to bear interest from and after such Redemption Date and
\nthe only right of the Holders of such Notes will be to receive payment of the
\nRedemption Price plus interest accrued through the Redemption Date, if any.<\/p>\n
8. Offers to Purchase. The Indenture provides that, after
\ncertain Asset Sales (as defined in the Indenture) and upon the occurrence of a
\nChange of Control (as defined in the Indenture), and subject to further
\nlimitations contained therein, the Company will make an offer to purchase
\ncertain amounts of the Notes in accordance with the procedures set forth in the
\nIndenture.<\/p>\n
9. Registration Rights. Pursuant to the Registration Rights
\nAgreement by and between the Company and the Initial Purchasers, the Company
\nwill be obligated to consummate an exchange offer pursuant to which the Holder
\nof this Note shall have the right to exchange this Note for the Company’s Series
\nB 8 1\/2% Senior Notes due 2008 (the “Exchange Notes”), at such time as the
\nExchange Notes shall have been registered under the Securities Act, in like
\nprincipal amount and having terms identical in all material respects to the
\nInitial Notes. The Holders of the Initial Notes shall be entitled to receive
\ncertain Additional Interest payments in the event such exchange offer is not
\nconsummated and upon certain other conditions, all pursuant to and in accordance
\nwith the terms of the Registration Rights Agreement.<\/p>\n
10. Denominations; Transfer; Exchange. The Notes are in
\ndefinitive, fully registered form, without coupons, in minimum denominations of
\n[$1,000] [$250,000] and in integral multiples [of $1,000 in excess] thereof. A
\nHolder shall register the transfer or exchange of Notes in accordance with the
\nIndenture. The Registrar may require a Holder, among other things, to furnish
\nappropriate endorsements and transfer documents and to pay certain transfer
\ntaxes or similar governmental charges payable in connection therewith as
\npermitted by the Indenture. The Registrar need not register the transfer of or
\nexchange of any Notes or portions thereof selected for redemption.<\/p>\n
11. Persons Deemed Owners. The registered Holder of a Note
\nshall be treated as the owner of such Note for all<\/p>\n
purposes.<\/p>\n
12. Unclaimed Money. If money for the payment of principal or
\ninterest remains unclaimed for two years, the Trustee and the Paying Agent will
\npay the money back to the Company. After that, Holders entitled to money must
\nlook to the Company for payment as general creditors unless an “abandoned
\nproperty” law designates another person.<\/p>\n
A-5<\/p>\n
13. Legal Defeasance and Covenant Defeasance. If the Company
\nat any time deposits with the Trustee U.S. legal tender or other obligations of
\nthe types set forth in the Indenture sufficient to pay the principal of and
\ninterest on the Notes to Stated Maturity or redemption, if applicable, and
\ncomplies with the other provisions of the Indenture relating to Legal Defeasance
\nor Covenant Defeasance, the Company will be discharged from certain provisions
\nof the Indenture and the Notes (including certain covenants, but excluding its
\nobligation to pay the principal of and interest on the Notes).<\/p>\n
14. Amendments, Supplements, and Waivers. Subject to certain
\nexceptions, the Indenture or the Notes may be amended or supplemented with the
\nwritten consent of the Holders of at least a majority in aggregate outstanding
\nprincipal amounts of the Notes, and any existing Default or Event of Default or
\nnoncompliance with any provision may be waived with the written consent of the
\nHolders of a majority in aggregate principal amount of the Notes then
\noutstanding. Without notice to or consent of any Holder, the parties thereto may
\namend or supplement the Indenture or the Notes to, among other things, cure any
\nambiguity, defect or inconsistency or make any other change that does not
\nadversely affect in any material respect the rights of any Holder of a Note.<\/p>\n
15. Restrictive Covenants. The Indenture imposes certain
\nlimitations on the ability of the Company and its Subsidiaries to, among other
\nthings, make payments in respect of its Capital Stock, incur additional
\nIndebtedness, make certain investments, sell assets, enter into transactions
\nwith Affiliates, create Liens, merge or consolidate with or into any other
\nPerson or sell, lease, convey or otherwise dispose of all or substantially all
\nof its assets or create dividend or other payment restrictions affecting
\nSubsidiaries of the Company. Such limitations are subject to a number of
\nimportant qualifications and exceptions. The Company must report on an annual
\nbasis to the Trustee on compliance with such limitations.<\/p>\n
16. Successor. When a Successor assumes, in accordance with
\nthe Indenture, all the obligations of its predecessor under the Notes and the
\nIndenture, and immediately before and thereafter no Default exists and certain
\nother conditions are satisfied, the predecessor entity will be released from
\nthose obligations.<\/p>\n
17. Defaults and Remedies. Events of Default are set forth in
\nthe Indenture. If an Event of Default (other than an Event of Default with
\nrespect to the Company pursuant to Section 6.01(f) or 6.01(g) of the Indenture)
\nshall have occurred and be continuing, then the Trustee by written notice to the
\nCompany or the Holders of not less than 25% in aggregate principal amount of the
\nNotes then outstanding may declare to be immediately due and payable the entire
\nprincipal amount of all the Notes then outstanding plus accrued interest to the
\ndate of acceleration; provided, however, that after such acceleration but before
\na judgment or decree based on such acceleration is obtained by the Trustee, the
\nHolders of a majority in aggregate principal amount of the outstanding Notes by
\nwritten notice to the Company and the Trustee may rescind and annul such
\nacceleration and its consequences if all existing Events of Default, other than
\nthe nonpayment of principal, make-whole amount, if any, or interest that has
\nbecome due solely because of the acceleration, have been cured or waived. No
\nsuch rescission shall affect any subsequent Default or impair any right
\nconsequent thereto. In case an Event of Default with respect to the Company
\nspecified in Section 6.01(f) or 6.01(g) of the Indenture occurs, such principal
\namount, together with make-whole amount, if any, and interest with respect to
\nall of the Notes, shall be due and payable immediately without any declaration
\nor other act on the part of the Trustee or the Holders of the Notes.<\/p>\n
A-6<\/p>\n
18. Trustee Dealings with Company. The Trustee under the
\nIndenture, in its individual or any other capacity, may make loans to, accept
\ndeposits from, and perform services for the Company, and may otherwise deal with
\nthe Company, its Subsidiaries or their respective Affiliates as if it were not
\nthe Trustee.<\/p>\n
19. No Recourse Against Others. No incorporator, director,
\nofficer, employee, stockholder or controlling person, as such, of the Company
\nshall have any liability for any obligations of the Company under the Notes or
\nthe Indenture or for any claim based on, in respect of or by reason of such
\nobligations or their creation. By accepting a Note, each Holder shall waive and
\nrelease all such liability. The waiver and release shall be part of the
\nconsideration for the issue of the Notes.<\/p>\n
20. Authentication. This Note shall not be valid until the
\nTrustee or Authenticating Agent manually signs the certificate of authentication
\non this Note.<\/p>\n
21. Multiple Counterparts. The parties may sign multiple
\ncounterparts of this Note. Each signed counterpart shall be deemed an original
\nbut all of them together represent one and the same Note.<\/p>\n
22. Governing Law. THIS NOTE SHALL BE GOVERNED BY AND
\nCONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
\nCONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
\nPRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES TO THE INDENTURE HAS AGREED
\nTO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY
\nACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE.<\/p>\n
23. Abbreviations and Defined Terms. Customary abbreviations
\nmay be used in the name of a Holder of a Note or an assignee, such as: TEN COM
\n(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
\ntenants with right of survivorship and not as tenants in common), CUST (=
\nCustodian), and U\/G\/M\/A (= Uniform Gifts to Minors Act).<\/p>\n
24. CUSIP Numbers. The Company has caused CUSIP numbers to be
\nprinted on the Notes as a convenience to the Holders. No representation is made
\nas to the accuracy of such numbers as printed on the Notes and reliance may be
\nplaced only on the other identification numbers printed hereon.<\/p>\n
25. Indenture. Each Holder, by accepting a Note, agrees to be
\nbound by all of the terms and provisions of the Indenture, as the same may be
\namended from time to time.<\/p>\n
The Company will furnish to any Holder of a Note upon written
\nrequest and without charge a copy of the Indenture which has the text of this
\nNote in larger type. Requests may be made to: HEALTHSOUTH Corporation, One
\nHealthSouth Parkway, Birmingham, Alabama 35243, Telephone No. (205) 969-4977,
\nFacsimile No. (205) 969-4730, Attention: William W. Horton.<\/p>\n
A-7<\/p>\n
ASSIGNMENT FORM<\/p>\n
If you the Holder want to assign this Note, fill in the form
\nbelow and have your signature guaranteed:<\/p>\n
I or we assign and transfer this Note to:<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
(Print or type name, address and zip code and
\n social security or tax ID number of assignee)<\/p>\n
and irrevocably appoint _______________________________________________________,
\nagent to transfer this Note on the books of the Company. The agent may
\nsubstitute another to act for him.<\/p>\n
Date: Signed:
\n —————————– —————————–
\n (Sign exactly as your name
\n appears on the other
\n side of this Note)<\/p>\n
Medallion Guarantee:
\n —————————–<\/p>\n
A-8<\/p>\n
[OPTION OF HOLDER TO ELECT PURCHASE]<\/p>\n
If you want to elect to have this Note purchased by the
\nCompany pursuant to Section 4.12 or Section 4.15 of the Indenture, check the
\nappropriate box:<\/p>\n
Section 4.12 |_|
\n Section 4.15 |_|<\/p>\n
If you want to elect to have only part of this Note purchased
\nby the Company pursuant to Section 4.12 or Section 4.15 of the Indenture, state
\nthe amount you elect to have purchased:<\/p>\n
$ ————————<\/p>\n
Date:
\n—————————– ————————————–
\n NOTICE: The signature on
\n this assignment must
\n correspond with the name as
\n it appears upon the face of
\n the within Note in every
\n particular without
\n alteration or enlargement
\n or any change whatsoever
\n and be guaranteed by the
\n endorser’s bank or broker.<\/p>\n
Medallion Guarantee:
\n —————————–<\/p>\n
A-9<\/p>\n
EXHIBIT B<\/p>\n
[FORM OF SERIES B NOTE]<\/p>\n
CUSIP No.:<\/p>\n
HEALTHSOUTH CORPORATION<\/p>\n
8 1\/2% SENIOR NOTE DUE 2008<\/p>\n
No. $<\/p>\n
HEALTHSOUTH CORPORATION, a corporation incorporated in
\nDelaware (the “Company,” which term includes any successor entity), for value
\nreceived promises to pay to or registered assigns, the principal sum of $ on
\nFebruary 1, 2008.<\/p>\n
Interest Payment Dates: February 1 and August 1, commencing
\nAugust 1, 2001.<\/p>\n
Record Dates: January 15 and July 15.<\/p>\n
Reference is made to the further provisions of this Note
\ncontained herein and the Indenture (as defined), which will for all purposes
\nhave the same effect as if set forth at this place.<\/p>\n
IN WITNESS WHEREOF, the Company has caused this Note to be
\nsigned manually or by facsimile by its duly authorized directors, officers or
\nother authorized signatories.<\/p>\n
HEALTHSOUTH CORPORATION<\/p>\n
By:
\n —————————-
\n Name:
\n Title:<\/p>\n
By:
\n —————————-
\n Name:
\n Title:<\/p>\n
CERTIFICATE OF AUTHENTICATION<\/p>\n
Date: <\/p>\n
This is one of the 8 1\/2% Senior Notes due 2008 referred to in
\nthe within-mentioned Indenture.<\/p>\n
THE BANK OF NEW YORK,
\n as Trustee<\/p>\n
By:
\n ———————-
\n Authorized Signatory<\/p>\n
B-2<\/p>\n
(REVERSE OF SECURITY)<\/p>\n
8 1\/2% SENIOR NOTE DUE 2008<\/p>\n
1 Interest. HEALTHSOUTH CORPORATION, a corporation
\nincorporated in Delaware (the “Company”), promises to pay interest on the
\nprincipal amount of this Note at the rate per annum shown above. Interest on the
\nNotes will accrue from the most recent date on which interest has been paid or
\nduly provided for, or if no interest has been paid, from the date of the
\noriginal issuance of the Notes. The Company will pay interest semi-annually in
\narrears on each Interest Payment Date, commencing August 1, 2001. Interest will
\nbe computed on the basis of a 360-day year comprised of twelve 30-day months.<\/p>\n
The Company shall pay interest on overdue principal and on
\noverdue installments of interest (without regard to any applicable grace
\nperiods) to the extent lawful from time to time on demand at the rate borne by
\nthe Notes.<\/p>\n
2. Method of Payment. The Company shall pay interest on the
\nNotes (except defaulted interest) to the Persons who are the registered Holders
\nat the close of business on January 15 or July 15 immediately preceding the
\nInterest Payment Date (whether or not such day is a Business Day) even if the
\nNotes are canceled on registration of transfer or registration of exchange after
\nsuch Record Date. Holders must surrender Notes to a Paying Agent to collect
\nprincipal payments. Payments of principal and make-whole amount, if any, will be
\nmade (on presentation of such Notes if in certificated form) in U.S. legal
\ntender; provided, however, that the Company may pay principal, make-whole
\namount, if any, and interest by check payable in U.S. legal tender. The Company
\nmay deliver any such interest payment by check mailed to the address of the
\nPerson entitled thereto as such address will appear on the security register.<\/p>\n
3. Paying Agents and Registrar. Initially, The Bank of New
\nYork, a banking organization organized under the laws of New York (the
\n“Trustee”), will act as Paying Agent and the Trustee will act as Registrar. The
\nCompany may change any Paying Agents, Registrar or co-Registrar without notice
\nto the Holders. Neither the Company nor any of its Subsidiaries or Affiliates
\nmay act as Paying Agent but may act as Registrar or co-Registrar.<\/p>\n
4. Indenture. The Company issued this Note under an Indenture,
\ndated as of February 1, 2001 (the “Indenture”), by and among the Company and the
\nTrustee. This Note is one of a duly authorized issue of Exchange Notes of the
\nCompany designated as its 8 1\/2% Senior Notes due 2008 (the “Notes”). The Notes
\ninclude the Initial Notes and the Exchange Notes issued pursuant to the
\nIndenture. The Initial Notes and the Exchange Notes are treated as a single
\nclass of securities under the Indenture. Capitalized terms herein are used as
\ndefined in the Indenture unless otherwise defined herein. The terms of the Notes
\ninclude those stated in the Indenture and those made part of the Indenture by
\nreference to the Trust Indenture Act of 1939 (15 U.S. Code ss.ss. 77aaa-77bbbb)
\n(the “TIA”), as in effect on the date of the Indenture. Notwithstanding anything
\nto the contrary herein, the Notes are subject to all such terms, and Holders of
\nNotes are referred to the Indenture and the TIA for a statement of them. The
\nNotes are general unsecured obligations of the Company.<\/p>\n
5. [Intentionally Omitted.]<\/p>\n
B-3<\/p>\n
6. Redemption.<\/p>\n
The Notes will be redeemable, in whole or in part, at the
\noption of the Company at any time at a redemption price equal to the greater of
\n(i) 100% of the principal amount of the Notes, plus accrued interest thereon to
\nthe date of redemption and (ii) as determined by a Quotation Agent (as defined
\nbelow), the sum of the present values of the remaining scheduled payments of
\nprincipal and interest thereon discounted to the redemption date on a
\nsemi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
\nat the Adjusted Treasury Rate, plus accrued interest on the Notes to the date of
\nredemption. If a redemption date does not fall on an interest payment date,
\nthen, with respect to the interest payment immediately succeeding the redemption
\ndate, only the unaccrued portion of such interest payment as of the redemption
\ndate shall be included in any calculation pursuant to clause (ii) above. Any
\namount payable in excess of 100% of the principal amount of the Notes (other
\nthan accrued interest thereon) shall be referred to herein as the “make-whole
\namount.”<\/p>\n
“Adjusted Treasury Rate” means, with respect to any redemption
\ndate, the rate per annum equal to the semi-annual equivalent yield to maturity
\nof the Comparable Treasury Issue, assuming a price for the Comparable Treasury
\nIssue (expressed as a percentage of the principal amount) equal to the
\nComparable Treasury Price for such redemption date, plus 0.50%.<\/p>\n
“Comparable Treasury Issue” means the United States Treasury
\nsecurity selected by a Quotation Agent as having a maturity comparable to the
\nremaining term of the Notes to be redeemed that would be utilized, at the time
\nof selection and in accordance with customary financial practice, in pricing new
\nissues of corporate debt securities of comparable maturity to the remaining term
\nof such Notes.<\/p>\n
“Comparable Treasury Price” means, with respect to any
\nredemption date, (i) the average of the Reference Treasury Dealer Quotations for
\nsuch redemption date, after excluding the highest and lowest of such Reference
\nTreasury Dealer Quotations, or (ii) if the Trustee obtains three or fewer such
\nReference Treasury Dealer Quotations, the average of all such quotations.<\/p>\n
“Quotation Agent” means one of the Reference Treasury Dealers
\nappointed by the Trustee after consultation with the Company.<\/p>\n
“Reference Treasury Dealer” means (i) each of UBS Warburg LLC,
\nDeutsche Banc Alex. Brown Inc. and Chase Securities Inc. and their respective
\nsuccessors; provided, however, that if any of the foregoing shall cease to be a
\nprimary U.S. Government securities dealer in New York, New York (a “Primary
\nTreasury Dealer”), the Company shall substitute therefor another Primary
\nTreasury Dealer; and (ii) any other Primary Treasury Dealer selected by the
\nTrustee after consultation with the Company.<\/p>\n
“Reference Treasury Dealer Quotation” means, with respect to
\neach Reference Treasury Dealer and any redemption date, the average, as
\ndetermined by the Trustee, of the bid and asked prices for the Comparable
\nTreasury Issue (expressed in each case as a percentage of its principal amount)
\nquoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
\non the third business day preceding such redemption date.<\/p>\n
If less than all of the Notes are to be redeemed at any time,
\nselection of the Notes to be redeemed will be made by the Trustee from among the
\noutstanding Notes on a pro rata basis, by lot or<\/p>\n
B-4<\/p>\n
by any other method permitted in the Indenture. On and after the redemption
\ndate, interest will cease to accrue on the Notes or portions thereof called for
\nredemption.<\/p>\n
The Notes will not be entitled to any sinking fund.<\/p>\n
7. Notice of Redemption. Notice of redemption under paragraph
\n6 of this Note will be mailed at least 30 days but not more than 60 days before
\nthe Redemption Date to each Holder of Notes to be redeemed at such Holder’s
\nregistered address.<\/p>\n
Except as set forth in the Indenture, if monies for the
\nredemption of the Notes called for redemption shall have been deposited with the
\nPaying Agent for redemption on such Redemption Date, then the Notes called for
\nredemption will cease to bear interest from and after such Redemption Date and
\nthe only right of the Holders of such Notes will be to receive payment of the
\nRedemption Price plus interest accrued through the Redemption Date, if any.<\/p>\n
8. Offers to Purchase. The Indenture provides that, after
\ncertain Asset Sales (as defined in the Indenture) and upon the occurrence of a
\nChange of Control (as defined in the Indenture), and subject to further
\nlimitations contained therein, the Company will make an offer to purchase
\ncertain amounts of the Notes in accordance with the procedures set forth in the
\nIndenture.<\/p>\n
9. Denominations; Transfer; Exchange. The Notes are in
\ndefinitive, fully registered form, without coupons, in minimum denominations of
\n[$1,000] [$250,000] and in integral multiples [of $1,000 in excess] thereof. A
\nHolder shall register the transfer or exchange of Notes in accordance with the
\nIndenture. The Registrar may require a Holder, among other things, to furnish
\nappropriate endorsements and transfer documents and to pay certain transfer
\ntaxes or similar governmental charges payable in connection therewith as
\npermitted by the Indenture. The Registrar need not register the transfer of or
\nexchange of any Notes or portions thereof selected for redemption.<\/p>\n
10. Persons Deemed Owners. The registered Holder of a Note
\nshall be treated as the owner of such Note for all purposes.<\/p>\n
11. Unclaimed Money. If money for the payment of principal or
\ninterest remains unclaimed for two years, the Trustee and the Paying Agent will
\npay the money back to the Company. After that, Holders entitled to money must
\nlook to the Company for payment as general creditors unless an “abandoned
\nproperty” law designates another person.<\/p>\n
12. Legal Defeasance and Covenant Defeasance. If the Company
\nat any time deposits with the Trustee U.S. legal tender or other obligations of
\nthe types set forth in the Indenture sufficient to pay the principal of and
\ninterest on the Notes to Stated Maturity or redemption, if applicable, and
\ncomplies with the other provisions of the Indenture relating to Legal Defeasance
\nor Covenant Defeasance, the Company will be discharged from certain provisions
\nof the Indenture and the Notes (including certain covenants, but excluding its
\nobligation to pay the principal of and interest on the Notes).<\/p>\n
13. Amendments, Supplements, and Waivers. Subject to certain
\nexceptions, the Indenture or the Notes may be amended or supplemented with the
\nwritten consent of the<\/p>\n
B-5<\/p>\n
Holders of at least a majority in aggregate outstanding principal amounts of the
\nNotes, and any existing Default or Event of Default or noncompliance with any
\nprovision may be waived with the written consent of the Holders of a majority in
\naggregate principal amount of the Notes then outstanding. Without notice to or
\nconsent of any Holder, the parties thereto may amend or supplement the Indenture
\nor the Notes to, among other things, cure any ambiguity, defect or inconsistency
\nor make any other change that does not adversely affect in any material respect
\nthe rights of any Holder of a Note.<\/p>\n
14. Restrictive Covenants. The Indenture imposes certain
\nlimitations on the ability of the Company and its Subsidiaries to, among other
\nthings, make payments in respect of its Capital Stock, incur additional
\nIndebtedness, make certain investments, sell assets, enter into transactions
\nwith Affiliates, create Liens, merge or consolidate with or into any other
\nPerson or sell, lease, convey or otherwise dispose of all or substantially all
\nof its assets or create dividend or other payment restrictions affecting
\nSubsidiaries of the Company. Such limitations are subject to a number of
\nimportant qualifications and exceptions. The Company must report on an annual
\nbasis to the Trustee on compliance with such limitations.<\/p>\n
15. Successor. When a Successor assumes, in accordance with
\nthe Indenture, all the obligations of its predecessor under the Notes and the
\nIndenture, and immediately before and thereafter no Default exists and certain
\nother conditions are satisfied, the predecessor entity will be released from
\nthose obligations.<\/p>\n
16. Defaults and Remedies. Events of Default are set forth in
\nthe Indenture. If an Event of Default (other than an Event of Default with
\nrespect to the Company pursuant to Section 6.01(f) or 6.01(g) of the Indenture)
\nshall have occurred and be continuing, then the Trustee by written notice to the
\nCompany or the Holders of not less than 25% in aggregate principal amount of the
\nNotes then outstanding may declare to be immediately due and payable the entire
\nprincipal amount of all the Notes then outstanding plus accrued interest to the
\ndate of acceleration; provided, however, that after such acceleration but before
\na judgment or decree based on such acceleration is obtained by the Trustee, the
\nHolders of a majority in aggregate principal amount of the outstanding Notes by
\nwritten notice to the Company and the Trustee may by written notice to the
\nCompany and the Trustee rescind and annul such acceleration and its consequences
\nif all existing Events of Default, other than the nonpayment of principal,
\nmake-whole amount, if any, or interest that has become due solely because of the
\nacceleration, have been cured or waived. No such rescission shall affect any
\nsubsequent Default or impair any right consequent thereto. In case an Event of
\nDefault with respect to the Company specified in Section 6.01(f) or 6.01(g) of
\nthe Indenture occurs, such principal amount, together with make-whole amount, if
\nany, and interest with respect to all of the Notes, shall be due and payable
\nimmediately without any declaration or other act on the part of the Trustee or
\nthe Holders of the Notes.<\/p>\n
17. Trustee Dealings with Company. The Trustee under the
\nIndenture, in its individual or any other capacity, may make loans to, accept
\ndeposits from, and perform services for the Company, and may otherwise deal with
\nthe Company, its Subsidiaries or their respective Affiliates as if it were not
\nthe Trustee.<\/p>\n
18. No Recourse Against Others. No incorporator, director,
\nofficer, employee, stockholder or controlling person, as such, of the Company
\nshall have any liability for any obligations of the Company under the Notes or
\nthe Indenture or for any claim based on, in respect of or by reason of such
\nobligations or their creation. By accepting a Note, each Holder shall waive and
\nrelease all such liability. The waiver and release shall be part of the
\nconsideration for the issue of the Notes.<\/p>\n
B-6<\/p>\n
19. Authentication. This Note shall not be valid until the
\nTrustee or Authenticating Agent manually signs the certificate of authentication
\non this Note.<\/p>\n
20. Multiple Counterparts. The parties may sign multiple
\ncounterparts of this Note. Each signed counterpart shall be deemed an original
\nbut all of them together represent one and the same Note.<\/p>\n
21. Governing Law. THIS NOTE SHALL BE GOVERNED BY AND
\nCONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
\nCONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
\nPRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES TO THE INDENTURE HAS AGREED
\nTO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY
\nACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE.<\/p>\n
22. Abbreviations and Defined Terms. Customary abbreviations
\nmay be used in the name of a Holder of a Note or an assignee, such as: TEN COM
\n(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
\ntenants with right of survivorship and not as tenants in common), CUST (=
\nCustodian), and U\/G\/M\/A (= Uniform Gifts to Minors Act).<\/p>\n
23. CUSIP Numbers. The Company has caused CUSIP numbers to be
\nprinted on the Notes as a convenience to the Holders. No representation is made
\nas to the accuracy of such numbers as printed on the Notes and reliance may be
\nplaced only on the other identification numbers printed hereon.<\/p>\n
24. Indenture. Each Holder, by accepting a Note, agrees to be
\nbound by all of the terms and provisions of the Indenture, as the same may be
\namended from time to time.<\/p>\n
The Company will furnish to any Holder of a Note upon written
\nrequest and without charge a copy of the Indenture which has the text of this
\nNote in larger type. Requests may be made to: HEALTHSOUTH Corporation, One
\nHealthSouth Parkway, Birmingham, Alabama 35243, Telephone No. (205) 969-4977,
\nFacsimile No. (205) 969-4730, Attention: William W. Horton.<\/p>\n
B-7<\/p>\n
ASSIGNMENT FORM<\/p>\n
If you the Holder want to assign this Note, fill in the form
\nbelow and have your signature guaranteed:<\/p>\n
I or we assign and transfer this Note to:<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–<\/p>\n
——————————————————————————–
\n (Print or type name, address and zip code and
\n social security or tax ID number of assignee)<\/p>\n
and irrevocably appoint________________________________________________________,
\nagent to transfer this Note on the books of the Company. The agent may
\nsubstitute another to act for him.<\/p>\n
Date: Signed:
\n —————————– —————————-
\n (Sign exactly as your name
\n appears on the other
\n side of this Note)<\/p>\n
Medallion Guarantee:
\n —————————-<\/p>\n
B-8<\/p>\n
[OPTION OF HOLDER TO ELECT PURCHASE]<\/p>\n
If you want to elect to have this Note purchased by the
\nCompany pursuant to Section 4.12 or Section 4.15 of the Indenture, check the
\nappropriate box:<\/p>\n
Section 4.12 |_|
\n Section 4.15 |_|<\/p>\n
If you want to elect to have only part of this Note purchased
\nby the Company pursuant to Section 4.12 or Section 4.15 of the Indenture, state
\nthe amount you elect to have purchased:<\/p>\n
$
\n ———————-<\/p>\n
Date:
\n ————————- —————————
\n NOTICE: The signature on
\n this assignment must
\n correspond with the name
\n as it appears upon the
\n face of the within Note in
\n every particular without
\n alteration or enlargement
\n or any change whatsoever
\n and be guaranteed by the
\n endorser’s bank or broker.<\/p>\n
Medallion Guarantee:
\n ————————<\/p>\n
B-9<\/p>\n
EXHIBIT C<\/p>\n
[FORM OF RULE 144A TRANSFER CERTIFICATE]
\n [Date]<\/p>\n
[Name of Registrar]
\n[Address of Registrar]<\/p>\n
Ladies and Gentlemen:<\/p>\n
Reference is hereby made to the Indenture, dated as of
\nFebruary 1, 2001, between HEALTHSOUTH Corporation, as Issuer (the “Company”),
\nand The Bank of New York, as Trustee. Capitalized terms used but not defined
\nherein shall have the respective meanings given to such terms in the Indenture
\nor Rule 144A, as the case may be.<\/p>\n
[Insert the following paragraph for any transfer made pursuant to Section
\n2.16(b)(vi):<\/p>\n
This certificate relates to US$___________ principal amount of
\nNotes which are held in the form of a beneficial interest in the Restricted
\nGlobal Note (CUSIP No. ______________ ) with the Depositary in the name of
\n[insert name of transferor] (the “Transferor”). The Transferor has requested a
\ntransfer of such beneficial interest for one or more Certificated Notes to be
\nregistered in the name of [insert name of transferee] (the “Transferee”).]<\/p>\n
[Insert the following paragraph for any transfer made pursuant to Section
\n2.16(b)(v):<\/p>\n
This certificate relates to US$___________ principal amount of
\nNotes which are held in the form of a beneficial interest in the Regulation S
\nGlobal Note (CUSIP No. ______________ ) with the Depositary in the name of
\n[insert name of transferor] (the “Transferor”). The Transferor has requested a
\ntransfer of such beneficial interest for a beneficial interest in the Restricted
\nGlobal Note to be registered in the name of [insert name of transferee] (the
\n“Transferee”).]<\/p>\n
[Insert the following paragraph for any transfer made pursuant to Section
\n2.16(c)(iii):<\/p>\n
This certificate relates to US$__________ principal amount of
\nNotes which are held in the form of one or more Certificated Notes registered in
\nthe name of [insert name of transferor (the “Transferor”). The Transferor has
\nrequested a transfer of such Certificated Notes for a beneficial interest in the
\nRestricted Global Note (CUSIP No. _____________ ) to be held [with the
\nDepositary in the name of [insert name of Transferee] (the “Transferee”).]<\/p>\n
In connection with such request for transfer and in respect of
\nsuch Notes, the Transferor does hereby certify that such transfer is being
\neffected in accordance with the transfer restrictions set forth in the Indenture
\nand the Notes and pursuant to and in accordance with Rule 144A, and accordingly
\nthe Transferor does hereby certify:<\/p>\n
(1) the Transferee is a person that the Transferor
\n and any person acting on behalf of the Transferor reasonably believe is
\n purchasing such Notes for its own account, or for one or more accounts
\n with respect to which the Transferee exercises sole investment<\/p>\n
C-1<\/p>\n
discretion, and the Transferee and each such account is a “qualified
\n institutional buyer” within the meaning of Rule 144A;<\/p>\n
(2) the Transferor and any person acting on its
\n behalf has taken reasonable steps to ensure that the Transferee is
\n aware that the Transferor may be relying on Rule 144A in connection
\n with the transaction; and<\/p>\n
(3) the transaction satisfies all other requirements
\n of Rule 144A and of any applicable Notes laws of any state of the
\n United States or any other jurisdiction.<\/p>\n
You and the Company are entitled to rely upon this certificate
\nand are irrevocably authorized to produce this certificate or a copy hereof to
\nany interested party in any administrative or legal proceedings or official
\ninquiry with respect to the matters covered hereby.<\/p>\n
[Name of Transferor]<\/p>\n
By:
\n ————————
\n Name:
\n Title:<\/p>\n
C-2<\/p>\n
EXHIBIT D<\/p>\n
[FORM OF REGULATION S TRANSFER CERTIFICATE]<\/p>\n
[date]<\/p>\n
[Name of Registrar]
\n[Address of Registrar]<\/p>\n
Ladies and Gentlemen:<\/p>\n
Reference is hereby made to the Indenture, dated as of
\nFebruary 1, 2001, between HEALTHSOUTH Corporation, as Issuer (the “Company”),
\nand The Bank of New York, as Trustee. Capitalized terms used but not defined
\nherein shall have the respective meanings given to such terms in the Indenture
\nor Regulation S, as the case may be.<\/p>\n
[Insert the following paragraph for any transfer made pursuant to Section
\n2.16(b)(iii) or 2.16(b)(iv):<\/p>\n
This certificate relates to US$__________ principal amount of
\nNotes which are held in the form of a beneficial interest in the Restricted
\nGlobal Note (CUSIP No.__________) with the Depositary in the name of [insert
\nname of transferor] (the “Transferor”). The Transferor has requested a transfer
\nof such beneficial interest for a beneficial interest in the Regulation S Global
\nNote (CUSIP No.__________) to be held [[include the following for any transfer
\nmade pursuant to Section 2.16(b)(iii): with [Euroclear] [Clearstream] (Common
\nCode No.__________)] through the Depositary in the name of [insert name of
\ntransferee] (the “Transferee”).]<\/p>\n
[Insert the following paragraph for any transfer made pursuant to Section
\n2.16(c)(iii):<\/p>\n
This certificate relates to US$__________ principal amount of
\nNotes which are held in the form of one or more Certificated Notes registered in
\nthe name of [insert name of transferor) (the “Transferor”). The Transferor has
\nrequested a transfer of such Certificated Notes for a beneficial interest in the
\nRegulation S Global Note (CUSIP No.__________) to be held [with [Euroclear]
\n[Clearstream]] through the Depositary in the name of [insert name of transferee]
\n(the “Transferee”).]<\/p>\n
In connection with such request for transfer and in respect of
\nsuch Notes, the Transferor does hereby certify that such transfer is being
\neffected in accordance with the transfer restrictions set forth in the Indenture
\nand the Notes and pursuant to and in accordance with Regulation S, and
\naccordingly the Transferor does hereby certify:<\/p>\n
(1) the offer of such Notes was not made to a person
\n in the United States;<\/p>\n
(2) either (A) at the time the buy order for such
\n Notes was originated, the Transferee was outside the United States or
\n the Transferor and any person acting on its behalf reasonably believed
\n that the Transferee was outside the United States or (B) the
\n transaction was executed in, or through the facilities of, a designated
\n offshore securities market and neither the Transferor nor any person
\n acting on its behalf knew that the transaction was pre-arranged with a
\n buyer in the United States,<\/p>\n
(3) no directed selling efforts have been made in the
\n United States in contravention of the requirements of Rule 903(b) or
\n 904(b) of the Securities Act, as applicable, and<\/p>\n
(4) the transaction is not part of a plan or scheme
\n to evade the registration requirements of the
\n Securities Act.<\/p>\n
[Add the following for transfers made during the Regulation S Restricted Period:<\/p>\n
In addition, (A) if the provisions of Rule 903(c)(3) or Rule
\n904(c)(1) of the Securities Act are applicable to the transaction, the
\nTransferor hereby certifies that the transfer is being made in accordance with
\nthe requirements of Rule 903(c)(3) or Rule 904(c)(1), as the case may be, and
\n(B) upon completion of the transaction, the Transferee will hold the transferred
\nbeneficial interest through Euroclear or Clearstream.]<\/p>\n
You and the Company are entitled to rely upon this certificate
\nand are irrevocably authorized to produce this certificate or a copy hereof to
\nany interested party in any administrative or legal proceedings or official
\ninquiry with respect to the matters covered hereby.<\/p>\n
[Name of Transferor]<\/p>\n
By:
\n ————————————-
\n Name:
\n Title:<\/p>\n
D-2<\/p>\n
EXHIBIT E<\/p>\n
[FORM OF RULE 144 TRANSFER CERTIFICATE]<\/p>\n
[date]<\/p>\n
[Name of Registrar]
\n[Address of Registrar]
\nLadies and Gentlemen:<\/p>\n
Reference is hereby made to the Indenture, dated as of
\nFebruary 1, 2001, between HEALTHSOUTH Corporation, as Issuer (the “Company”),
\nand The Bank of New York, as Trustee. Capitalized terms used but not defined
\nherein shall have the respective meanings given to such terms in the Indenture
\nor Rule 144, as the case may be.<\/p>\n
[Insert the following paragraph for any transfer made pursuant to Section
\n2.16(b)(iii):<\/p>\n
This certificate relates to US$__________ principal amount of
\nNotes which are held in the form of a beneficial interest in the Restricted
\nGlobal Note (CUSIP No.__________) with the Depositary in the name of [insert
\nname of transferor] (the “Transferor”). The Transferor has requested a transfer
\nof such beneficial interest for a beneficial interest in the Regulation S Global
\nNote (CUSIP No.__________) to be held with the Depositary in the name of [insert
\nname of transferee] (the “Transferee”).]<\/p>\n
[Insert the following paragraph for any transfer made pursuant to Section
\n2.16(b)(vi):<\/p>\n
This certificate relates to US$__________ principal amount of
\nNotes which are held in the form of a beneficial interest in the Restricted
\nGlobal Note (CUSIP No.__________) with the Depositary in the name of [insert
\nname of transferor] (the “Transferor”). The Transferor has requested a transfer
\nof such beneficial interest for one or more Certificated Notes to be registered
\nin the name of [insert name of transferee] (the “Transferee”).]<\/p>\n
[Insert the following paragraph for any transfer made pursuant to Section
\n2.16(b)(vii):<\/p>\n
This certificate relates to US$__________ principal amount of
\nNotes which are held in the form of a beneficial interest in the Regulation S
\nGlobal Note (CUSIP No.__________) with the Depositary in the name of [insert
\nname of transferor] (the “Transferor”). The Transferor has requested a transfer
\nof such beneficial interest for one or more Certificated Notes to be registered
\nin the name of [insert name of transferee] (the “Transferee”).]<\/p>\n
In connection with such request for transfer and in respect of
\nsuch Notes, the Transferor does hereby certify that such transfer has been
\neffected in accordance with the transfer restrictions set forth in the Indenture
\nand the Notes, and that the Notes are being transferred in a transaction
\npermitted by Rule 144 under the Securities Act.<\/p>\n
You and the Company are entitled to rely upon this certificate
\nand are irrevocably authorized to produce this certificate or a copy hereof to
\nany interested party in any administrative or legal proceedings or official
\ninquiry with respect to the matters covered hereby,<\/p>\n
[Name of Transferor]<\/p>\n
By:
\n ———————————
\n Name:
\n Title:<\/p>\n
E-2<\/p>\n
EXHIBIT F<\/p>\n
[FORM OF ACCREDITED INVESTOR TRANSFER CERTIFICATE]<\/p>\n
[date]<\/p>\n
[Name of Registrar]
\n[Address of Registrar]<\/p>\n
Ladies and Gentlemen:<\/p>\n
Reference is hereby made to the Indenture, dated as of
\nFebruary 1, 2001, between HEALTHSOUTH Corporation, as Issuer (the “Company”),
\nand The Bank of New York, as Trustee. Capitalized terms used but not defined
\nherein shall have the respective meanings given to such terms in the Indenture
\nor Regulation D, as the case may be.<\/p>\n
[Insert the following paragraph for any transfer made pursuant to Section
\n2.16(b)(vi):<\/p>\n
This certificate relates to US$__________ principal amount of
\nNotes which are held in the form of a beneficial interest in the Restricted
\nGlobal Note (CUSIP No.__________) with the Depositary in the name of [insert
\nname of transferor] (the “Transferor”). The Transferor has requested a transfer
\nof such beneficial interest for a beneficial interest in one or more
\nCertificated Notes (CUSIP No.__________) to be held with the Depositary in the
\nname of [insert name of transferee] (the “Transferee”].<\/p>\n
[Insert the following paragraph for any transfer made pursuant to Section
\n2.16(b)(vii) of the Indenture:<\/p>\n
This certificate relates to US$__________ principal amount of
\nNotes which are held in the form of a beneficial interest in the Regulation S
\nGlobal Note (CUSIP No.__________) with the Depositary in the name of [insert
\nname of transferor] (the “Transferor”). The Transferor has requested a transfer
\nof such beneficial interest for one or more Certificated Notes to be registered
\nin the name of [insert name of transferee] (the “Transferee”).]<\/p>\n
[Insert the following paragraph for any transfer made pursuant to Section
\n2.16(c)(i) of the Indenture:<\/p>\n
This certificate relates to US$__________ principal amount of
\nNotes which are held in the form of one or more Certificated Notes registered in
\nthe name of [insert name of transferor] (the “Transferor”). The Transferor has
\nrequested a transfer of such Certificated Notes for one or more Certificated
\nNotes to be registered in the name of [insert name of transferee] (the
\n“Transferee”).]<\/p>\n
The undersigned represents and warrants to you that:<\/p>\n
(1) We are an institutional “accredited investor” (as
\n defined in Rule 501(a)(1). (2), (3) or (7) of Regulation D under the
\n Securities Act of 1933, as amended (the “Securities Act”)) purchasing
\n for our own account or for the account of such an institutional
\n “accredited investor”, and we are acquiring the Notes not with a view
\n to, or for offer or sale in connection with, any distribution in
\n violation of the Securities Act or other applicable<\/p>\n
securities law and we have such knowledge and experience in financial
\n and business matters as to be capable of evaluating the merits and
\n risks of our investment in the Notes and invest in or purchase
\n securities similar to the Notes in the normal course of our business.
\n We and any accounts for which we are acting are each able to bear the
\n economic risk of our investment.<\/p>\n
(2) We understand and acknowledge that the Notes have
\n not been registered under the Securities Act or any other applicable
\n securities law and unless so registered, may not be sold except as
\n permitted in the following sentence. We agree on our own behalf and on
\n behalf of any investor account for which we are purchasing Notes to
\n offer, sell or otherwise transfer such Notes prior to the date which is
\n two (2) years after the later of the date of original issue and the
\n last date on which the Company or any Affiliate of the Company was the
\n owner of such Notes (or any predecessor thereto) (such later date, the
\n “Resale Restriction Termination Date”) only (a) to a Person we
\n reasonably believe is a qualified institutional buyer (as defined in
\n Rule 144A under the Securities Act) that purchases for its own account
\n or for the account of a qualified institutional buyer to whom notice is
\n given that the resale, pledge or transfer is being made in a
\n transaction meeting the requirements of Rule 144A under the securities
\n act, (b) in a transaction meeting the requirements of Rule 144 under
\n the Securities Act, (c) outside the United States to a foreign person
\n in a transaction meeting the requirements of Rule 904 of Regulation S
\n under the Securities Act or (d) in accordance with another exemption
\n from the registration requirements of the Securities Act, provided that
\n in the case of a transfer, pledge or sale pursuant to this clause (d)
\n such transfer is subject to the receipt by the Registrar (and the
\n Company, if it so requests) of a certification of the transferor and an
\n Opinion of Counsel t the effect that such transfer is in compliance
\n with the Securities Act, (e) to the Company or its Affiliates or (f)
\n pursuant to an effective registration statement under the Securities
\n Act and, in each case, in accordance with any applicable securities
\n laws of any state of the United States or any other applicable
\n jurisdiction and the Indenture governing the notes. Any transfer of
\n Notes pursuant to clause (d) above to an institutional “accredited
\n investor” within the meaning of Rule 501(a)(1), (2) (3) or (7) of
\n Regulation D under the Securities Act that is purchasing the Notes for
\n its own account or for the account of such an institutional “accredited
\n investor,” shall involve a minimum purchase price of US$250,000 for
\n such Notes, subject in each of the foregoing cases to any requirement
\n of law that the disposition of our property or the property of such
\n investor account or accounts be at all times within our or their
\n control and in compliance with any applicable state securities laws.
\n The foregoing restrictions on resale will not apply subsequent to the
\n Resale Restriction Termination Date. If any resale or other transfer of
\n the Notes is proposed to an institutional “accredited investor” prior
\n to the Resale Restriction Termination Date, the transferor shall
\n deliver to the Company and the Trustee a letter from the transferee
\n substantially in the form of this letter, which shall provide, among
\n other things, that the transferee is an institutional “accredited
\n investor” within the meaning of Rule 501 (a)(l), (2), (3) or (7) of
\n Regulation D under the Securities Act and that it is acquiring such
\n Notes for investment purposes and not for distribution in violation of
\n the Securities Act. We acknowledge that the Company and the Trustee
\n reserve the right prior to any offer, sale or other transfer of the
\n Notes pursuant to clause (c) or (d) above prior to the Resale
\n Restriction Termination Date to require the delivery of an opinion of
\n counsel, certifications and\/or other information satisfactory to the
\n Company and the Trustee.<\/p>\n
(3) We are acquiring the Notes purchased by us for
\n our own account or for one or more accounts as to each of which we
\n exercise sole investment discretion.
\n F-2<\/p>\n
You and the Company are entitled to rely upon this certificate
\nand are irrevocably authorized to produce this certificate or a copy hereof to
\nany interested party in any administrative or legal proceedings or official
\ninquiry with respect to the matters covered hereby.<\/p>\n
[Name of Transferee]<\/p>\n
By:
\n ———————————–
\n Name:
\n Title:<\/p>\n
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