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| Tuesday, Aug. 19, 2008 |
HEALTHSOUTH Rehabilitation Corporation
TO
NationsBank of Georgia, National Association,
Trustee
Indenture
Dated as of March 24, 1994
$287,500,000
9.5 % Senior Subordinated Notes due 2001
<PAGE>
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
Section 310(a)(1) . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . 609
(b) . . . . . . . . . . . . . . . 608; 610
(c) . . . . . . . . . . . . . . . Not Applicable
Section 311(a) . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . 613
(c) . . . . . . . . . . . . . . . Not Applicable
Section 312(a) . . . . . . . . . . . . . . . 701; 702(a)
(b) . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . 702(c)
Section 313(a) . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . 703(b)
314(a) . . . . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . . . 101; 1004
(b) . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . 514
Section 316(a) (last sentence). . . . . . . . . . . 101
(a)(1)(A). . . . . . . . . . . . . . . . 502; 512
(a)(1)(B). . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . 104(c)
Section 317(a)(l) . . . . . . . . . . . . . . . 505
(a)(2) . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . 107
- --------------------
Note: This reconciliation and tie shall not, for any
purpose, be deemed to be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
Parties . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals of the Company . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions . . . . . . . . . . . . . . . 1
"Accounts Receivable" . . . . . . . . . . . . . . . 2
"Acquired Indebtedness" . . . . . . . . . . . . . . 2
"Act" . . . . . . . . . . . . . . . . . . . . . . . 2
"Affiliate" . . . . . . . . . . . . . . . . . . . . 2
"Asset Sale". . . . . . . . . . . . . . . . . . . . 2
"Attributable Indebtedness" . . . . . . . . . . . . 3
"Authenticating Agent". . . . . . . . . . . . . . . 3
"Bank Debt" . . . . . . . . . . . . . . . . . . . . 3
"Board of Directors". . . . . . . . . . . . . . . . 3
"Board Resolution". . . . . . . . . . . . . . . . . 3
"Business Day". . . . . . . . . . . . . . . . . . . 4
"Capital Stock" . . . . . . . . . . . . . . . . . . 4
"Capitalized Lease Obligations" . . . . . . . . . . 4
"Change of Control" . . . . . . . . . . . . . . . . 4
"Commission". . . . . . . . . . . . . . . . . . . . 4
"Common Equity" . . . . . . . . . . . . . . . . . . 4
"Company" . . . . . . . . . . . . . . . . . . . . . 4
"Company Request" or "Company Order". . . . . . . . 4
"Consolidated Amortization Expense" . . . . . . . . 4
"Consolidated Depreciation Expense" . . . . . . . . 5
"Consolidated EBITDA" . . . . . . . . . . . . . . . 5
"Consolidated Income Tax Expense" . . . . . . . . . 5
"Consolidated Interest Expense" . . . . . . . . . . 5
"Consolidated Net Income" . . . . . . . . . . . . . 5
"Consolidated Net Worth". . . . . . . . . . . . . . 6
"Consolidated Tangible Assets". . . . . . . . . . . 7
"Convertible Debentures". . . . . . . . . . . . . . 7
"Corporate Trust Office". . . . . . . . . . . . . . 7
"Corporation" . . . . . . . . . . . . . . . . . . . 7
"Credit Agreements" . . . . . . . . . . . . . . . . 7
"Default" . . . . . . . . . . . . . . . . . . . . . 7
"Defaulted Interest". . . . . . . . . . . . . . . . 7
"Designated Senior Indebtedness". . . . . . . . . . 7
"Disqualified Stock". . . . . . . . . . . . . . . . 8
"EBITDA Coverage Ratio" . . . . . . . . . . . . . . 8
"Eligible Accounts Receivable". . . . . . . . . . . 8
"Eligible Investments". . . . . . . . . . . . . . . 8
"Exchange Act". . . . . . . . . . . . . . . . . . . 9
"Existing Indebtedness" . . . . . . . . . . . . . . 9
"Event of Default". . . . . . . . . . . . . . . . . 9
"GAAP". . . . . . . . . . . . . . . . . . . . . . . 9
"Hedging Obligations" . . . . . . . . . . . . . . . 9
"Holder". . . . . . . . . . . . . . . . . . . . . . 9
"Indebtedness". . . . . . . . . . . . . . . . . . . 9
"Interest Expense". . . . . . . . . . . . . . . . . 10
"Inventory" . . . . . . . . . . . . . . . . . . . . 10
"Indenture" . . . . . . . . . . . . . . . . . . . . 10
"Interest Payment Date" . . . . . . . . . . . . . . 10
"Investments" . . . . . . . . . . . . . . . . . . . 11
"Lien". . . . . . . . . . . . . . . . . . . . . . . 11
"Maturity". . . . . . . . . . . . . . . . . . . . . 11
"Net Proceeds". . . . . . . . . . . . . . . . . . . 11
"Officers' Certificate" . . . . . . . . . . . . . . 12
"Opinion of Counsel". . . . . . . . . . . . . . . . 12
"Outstanding" . . . . . . . . . . . . . . . . . . . 12
"Paying Agent". . . . . . . . . . . . . . . . . . . 13
"Permitted Liens" . . . . . . . . . . . . . . . . . 13
"Person". . . . . . . . . . . . . . . . . . . . . . 14
"PP&E". . . . . . . . . . . . . . . . . . . . . . . 14
"Predecessor Security". . . . . . . . . . . . . . . 14
"Preferred Stock" . . . . . . . . . . . . . . . . . 14
"Proceeding". . . . . . . . . . . . . . . . . . . . 14
"Refinancing Indebtedness". . . . . . . . . . . . . 14
"Redemption Date" . . . . . . . . . . . . . . . . . 15
"Redemption Price". . . . . . . . . . . . . . . . . 15
"Regular Record Date" . . . . . . . . . . . . . . . 15
"Repurchase Date" . . . . . . . . . . . . . . . . . 15
"Repurchase Event". . . . . . . . . . . . . . . . . 15
"Repurchase Price". . . . . . . . . . . . . . . . . 15
"Responsible Officer" . . . . . . . . . . . . . . . 15
"Restricted Payment". . . . . . . . . . . . . . . . 15
"Sale and Leaseback Transaction". . . . . . . . . . 16
"Securities Payment". . . . . . . . . . . . . . . . 16
"Security Register" and "Security Registrar". . . . 16
"Senior Indebtedness" . . . . . . . . . . . . . . . 16
"Senior Subordinated Debt". . . . . . . . . . . . . 17
"Significant Subsidiary". . . . . . . . . . . . . . 17
"Special Record Date" . . . . . . . . . . . . . . . 17
"Stated Maturity" . . . . . . . . . . . . . . . . . 17
"Subordinated Obligations". . . . . . . . . . . . . 17
"Subsidiary". . . . . . . . . . . . . . . . . . . . 17
"Trading Day" . . . . . . . . . . . . . . . . . . . 18
"Trustee" . . . . . . . . . . . . . . . . . . . . . 18
"Trust Indenture Act" . . . . . . . . . . . . . . . 18
"Vice President". . . . . . . . . . . . . . . . . . 18
"Weighted Average Life to Maturity" . . . . . . . . 18
"Wholly Owned Subsidiary" . . . . . . . . . . . . . 18
SECTION 102. Compliance Certificates and Opinions. . . 19
SECTION 103. Form of Documents Delivered to Trustee. . 19
SECTION 104. Acts of Holders; Record Dates . . . . . . 20
SECTION 105. Notices, Etc., to Trustee and Company . . 21
SECTION 106. Notice to Holders; Waiver . . . . . . . . 21
SECTION 107. Conflict with Trust Indenture Act . . . . 22
SECTION 108. Effect of Headings and Table of
Contents. . . . . . . . . . . . . . . . . 22
SECTION 109. Successors and Assigns. . . . . . . . . . 22
SECTION 110. Separability Clause . . . . . . . . . . . 23
SECTION 111. Benefits of Indenture . . . . . . . . . . 23
SECTION 112. Governing Law . . . . . . . . . . . . . . 23
SECTION 113. Legal Holidays. . . . . . . . . . . . . . 23
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally . . . . . . . . . . . . . 23
SECTION 202. Form of Face of Security. . . . . . . . . 24
SECTION 203. Form of Reverse of Security . . . . . . . 25
SECTION 204. Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . . 29
ARTICLE THREE
The Securities
SECTION 301. Title and Terms . . . . . . . . . . . . . 29
SECTION 302. Denominations . . . . . . . . . . . . . . 30
SECTION 303. Execution, Authentication, Delivery and
Dating. . . . . . . . . . . . . . . . . . 30
SECTION 304. Temporary Securities. . . . . . . . . . . 31
SECTION 305. Registration, Registration of Transfer
and Exchange. . . . . . . . . . . . . . . 31
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities. . . . . . . . . . . . . . . . 32
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . 33
SECTION 308. Persons Deemed Owners . . . . . . . . . . 35
SECTION 309. Cancellation. . . . . . . . . . . . . . . 35
SECTION 310. Computation of Interest . . . . . . . . . 35
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . . . . 35
SECTION 402. Application of Trust Money. . . . . . . . 37
ARTICLE FIVE
Remedies
SECTION 501. Events of Default . . . . . . . . . . . . 37
SECTION 502. Acceleration of Maturity; Rescission
and Annulment.. . . . . . . . . . . . . . 40
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee. . . . . . . . 41
SECTION 504. Trustee May File Proofs of Claim. . . . . 41
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities. . . . . . . . . 42
SECTION 506. Application of Money Collected. . . . . . 42
SECTION 507. Limitation on Suits . . . . . . . . . . . 43
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest. . . . . . . . . . . . . . . . . 44
SECTION 509. Restoration of Rights and Remedies. . . . 44
SECTION 510. Rights and Remedies Cumulative. . . . . . 44
SECTION 511. Delay or Omission Not Waiver. . . . . . . 44
SECTION 512. Control by Holders. . . . . . . . . . . . 45
SECTION 513. Waiver of Past Defaults . . . . . . . . . 45
SECTION 514. Undertaking for Costs . . . . . . . . . . 45
SECTION 515. Waiver of Stay or Extension Laws. . . . . 46
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities . . . 46
SECTION 602. Notice of Defaults. . . . . . . . . . . . 46
SECTION 603. Certain Rights of Trustee . . . . . . . . 47
SECTION 604. Not Responsible for Recitals or
Issuance of Securities. . . . . . . . . . 48
SECTION 605. May Hold Securities . . . . . . . . . . . 48
SECTION 606. Money Held in Trust . . . . . . . . . . . 48
SECTION 607. Compensation and Reimbursement. . . . . . 48
SECTION 608. Disqualification; Conflicting
Interests . . . . . . . . . . . . . . . . 50
SECTION 609. Corporate Trustee Required;
Eligibility . . . . . . . . . . . . . . . 50
SECTION 610. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . 50
SECTION 611. Acceptance of Appointment by Successor. . 52
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . . 52
SECTION 613. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . 52
SECTION 614. Appointment of Authenticating Agent.. . . 53
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders. . . . . . . . . . . 54
SECTION 702. Preservation of Information;
Communications to Holders . . . . . . . . 55
SECTION 703. Reports by Trustee. . . . . . . . . . . . 55
SECTION 704. Reports by Company. . . . . . . . . . . . 55
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Limitations on Mergers, Consolidations
and Asset Transfers . . . . . . . . . . . 56
SECTION 802. Successor Substituted . . . . . . . . . . 57
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent
of Holders. . . . . . . . . . . . . . . . 57
SECTION 902. Supplemental Indentures With Consent of
Holders . . . . . . . . . . . . . . . . . 58
SECTION 903. Execution of Supplemental Indentures. . . 59
SECTION 904. Effect of Supplemental Indentures . . . . 59
SECTION 905. Conformity with Trust Indenture Act . . . 59
SECTION 906. Reference in Securities to Supplemental
Indentures. . . . . . . . . . . . . . . . 59
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and
Interest. . . . . . . . . . . . . . . . . 60
SECTION 1002. Maintenance of Office or Agency . . . . . 60
SECTION 1003. Money for Security to Be Held in Trust. . 61
SECTION 1004. Statement by Officers as to Default . . . 62
SECTION 1005. Existence . . . . . . . . . . . . . . . . 62
SECTION 1006. Maintenance of Properties . . . . . . . . 63
SECTION 1007. Payment of Taxes and Other Claims . . . . 63
SECTION 1008. Limitations on Additional Indebtedness. . 63
SECTION 1009. Limitations on Subsidiary Preferred
Stock . . . . . . . . . . . . . . . . . . 64
SECTION 1010. Limitations on Restricted Payments. . . . 64
SECTION 1011. Limitations on Investments and Loans. . . 65
SECTION 1012. Limitations on Restrictions on
Distributions from Subsidiaries . . . . . 66
SECTION 1013. Limitations on Certain Other
Subordinated Indebtedness . . . . . . . . 67
SECTION 1014. Limitations on Transactions with
Affiliates. . . . . . . . . . . . . . . . 67
SECTION 1015. Limitations on Liens. . . . . . . . . . . 68
SECTION 1016. Limitations on Asset Sales. . . . . . . . 68
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption . . . . . . . . . . . 69
SECTION 1102. Applicability of Article. . . . . . . . . 69
SECTION 1103. Election to Redeem; Notice to Trustee.. . 69
SECTION 1104. Selection by Trustee of Securities to
Be Redeemed . . . . . . . . . . . . . . . 69
SECTION 1105. Notice of Redemption. . . . . . . . . . . 70
SECTION 1106. Deposit of Redemption Price . . . . . . . 70
SECTION 1107. Securities Payable on Redemption Date . . 71
SECTION 1108. Securities Redeemed in Part . . . . . . . 71
ARTICLE TWELVE
Subordination of Securities
SECTION 1201. Securities Subordinate to Senior
Indebtedness. . . . . . . . . . . . . . . 71
SECTION 1202. Payment Over of Proceeds Upon
Dissolution, Etc. . . . . . . . . . . . . 72
SECTION 1203. Prior Payment to Senior Indebtedness
Upon Acceleration of Securities . . . . . 73
SECTION 1204. No Payment in Certain Circumstances . . . 74
SECTION 1205. Payment Permitted If No Default . . . . . 75
SECTION 1206. Subrogation to Rights of Holders of
Senior Indebtedness . . . . . . . . . . . 75
SECTION 1207. Provisions Solely to Define Relative
Rights. . . . . . . . . . . . . . . . . . 76
SECTION 1208. Trustee to Effectuate Subordination and
Payment Provisions. . . . . . . . . . . . 76
SECTION 1209. No Waiver of Subordination Provisions . . 76
SECTION 1210. Notice to Trustee . . . . . . . . . . . . 77
SECTION 1211. Reliance on Judicial Order or
Certificate of Liquidating Agent. . . . . 78
SECTION 1212. Trustee Not Fiduciary for Holders of
Senior Indebtedness . . . . . . . . . . . 78
SECTION 1213. Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's
Rights. . . . . . . . . . . . . . . . . . 79
SECTION 1214. Article Applicable to Paying Agents . . . 79
ARTICLE THIRTEEN
Repurchase of Securities at the Option of the
Holder Upon a Repurchase Event
SECTION 1301. Right to Require Repurchase . . . . . . . 79
SECTION 1302. Notices; Method of Exercising
Repurchase Right, Etc.. . . . . . . . . . 80
SECTION 1303. Definition of Repurchase Event. . . . . . 81
<PAGE>
INDENTURE, dated as of March 24, 1994, between HEALTHSOUTH
Rehabilitation Corporation, a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company"), having its
principal office at Two Perimeter Park South, Birmingham, Alabama 35243, and
NationsBank of Georgia, National Association, a national banking association
duly organized and existing under the laws of the United States of America, as
Trustee (herein called the "Trustee"), having its principal office at 600
Peachtree Street, Suite 900, Atlanta, Georgia 30308.
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 9.5
Senior Subordinated Notes due 2001 (herein called the "Securities") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE, WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Accounts Receivable" means all of the accounts receivable of the
Company and its Subsidiaries on a consolidated basis which, in accordance with
GAAP, would be set opposite the caption "accounts receivable" or any like
caption on a balance sheet of the Company.
"Acquired Indebtedness" means (a) with respect to any Person that
becomes a Subsidiary of the Company after the date of initial issuance of the
Securities, Indebtedness of such Person and its Subsidiaries existing at the
time such Person becomes a Subsidiary of the Company that was not incurred in
connection with, or in contemplation of, such Person becoming a Subsidiary of
the Company and (b) with respect to the Company or any of its Subsidiaries, any
Indebtedness assumed by the Company or any of its Subsidiaries in connection
with the acquisition of an asset from another Person that was not incurred by
such other person in connection with, or in contemplation of, such acquisition.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Asset Sale" for any Person means the sale, lease conveyance or other
disposition (including, without limitation, by merger or consolidation, and
whether by operation of law or otherwise) of any of that Person's assets
(including, without limitation, the sale or other disposition of Capital Stock
of any Subsidiary of such Person, whether by such Person or by such Subsidiary),
whether owned on the date of initial issuance of the Securities or subsequently
acquired, in one transaction or a series of related transactions, in which such
Person and/or its Subsidiaries sell, lease, convey or otherwise dispose of (i)
all or substantially all of the Capital Stock of any of such Person's
Subsidiaries, (ii) assets which constitute substantially all of an operating
unit or business of such Person or any of its Subsidiaries, or (iii) any health
care facility; provided, however, that the following shall not constitute Asset
Sales: (i) a transaction or series of related transactions that results in a
Change of Control, and (ii) transactions between the Company and any of its
Wholly Owned Subsidiaries or among such Wholly Owned Subsidiaries.
"Attributable Indebtedness" when used with respect to any Sale and
Leaseback Transaction or an operating lease with respect to a healthcare
facility means, as at the time of determination, the present value (discounted
at a rate equivalent to the interest rate implicit in the lease, compounded on a
semiannual basis) of the total obligations of the lessee for rental payments,
after excluding all amounts required to be paid on account of maintenance and
repairs, insurance, taxes, utilities and other similar expenses payable by the
lessee pursuant to the terms of the lease, during the remaining term of the
lease included in any such Sale and Leaseback Transaction or such operating
lease or until the earliest date on which the lessee may terminate such lease
without penalty or upon payment of a penalty (in which case the rental payments
shall include such penalty); provided, that the Attributable Indebtedness with
respect to a Sale and Leaseback Transaction shall be no less than the fair
market value of the property subject to such Sale and Leaseback Transaction.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities.
"Bank Debt" means all obligations of the Company and its Subsidiaries,
now or hereafter existing under (i) the Credit Agreements, whether for
principal, interest, reimbursement of amounts drawn under letters of credit
issued pursuant thereto, guarantees in respect thereof, fees, expenses,
premiums, indemnities or otherwise, and (ii) any Indebtedness incurred by the
Company to extend, refund or refinance, in whole or in part, the Bank Debt,
including any interest and premium on any such Indebtedness.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York
or the city in which the Corporate Trust Office is located are authorized or
obligated by law or executive order to close.
"Capital Stock" of any Person means any and all shares, rights to
purchase, warrants or options (whether or not currently exercisable);
participation or other equivalents of or interest in (however designated) the
equity (including without limitation common stock, preferred stock and
partnership and joint venture interests) of such Person (excluding any debt
securities that are convertible into, or exchangeable for, such equity).
"Capitalized Lease Obligations" of any Person means the obligation of
such Person to pay rent or other amounts under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such obligation shall be the capitalized amount thereof determined in
accordance with GAAP.
"Change of Control" shall have the meaning specified
in Section 1303.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Equity" of any Person means all Capital Stock of such Person
that is generally entitled to (i) vote in the election of directors of such
Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management and policies of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board,
its Vice Chairman of the Board, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Consolidated Amortization Expense" of any Person for any period means
the amortization expense of such Person and its Subsidiaries for such period (to
the extent included in the computation of Consolidated Net Income of such
Person), determined on a consolidated basis in accordance with GAAP.
"Consolidated Depreciation Expense" of any Person means the
depreciation expense of such Person and its Subsidiaries for such period (to the
extent included in the computation of Consolidated Net Income of such Person),
determined on a consolidated basis in accordance with GAAP.
"Consolidated EBITDA" of any Person means, with respect to any
determination date, Consolidated Net Income before extraordinary losses and
losses realized in connection with Asset Sales, plus (i) Consolidated Income Tax
Expense, plus (ii) Consolidated Depreciation Expense, plus (iii) Consolidated
Amortization Expense, plus (iv) Consolidated Interest Expense, plus (v) all
other non-cash items reducing Consolidated Net Income of such Person and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP, plus
(vi) without duplication, for calculation of an EBITDA Coverage Ratio for
periods ending on or before December 31, 1994 the sum of $31,500,000
(representing expenses related to the Company's acquisition of certain
rehabilitation facilities and related assets from National Medical Enterprises,
Inc. effective December 31, 1993, net of Federal income tax effects), plus (vii)
without duplication, any amount, net of Federal income tax effects, representing
expenses relating to an acquisition, up to a maximum of 10% of the purchase
price thereof, determined on a consolidated basis in accordance with GAAP, and
less all non-cash items increasing Consolidated Net Income of such Person and
its Subsidiaries, determined on a consolidated basis in accordance with GAAP, in
each case, for such Person's prior four full fiscal quarters for which financial
results have been reported immediately preceding the determination date.
"Consolidated Income Tax Expense" means, for any Person for any
period, the provision for taxes based on income and profits of such Person and
its Subsidiaries to the extent such income or profits were included in computing
Consolidated Net Income of such Person for such Period.
"Consolidated Interest Expense" of any Person for any period means the
Interest Expense of such Person and its Subsidiaries for such period, determined
on a consolidated basis in accordance with GAAP, plus (to the extent not
otherwise included within the definition of Interest Expense as imputed
interest) one-third of the rental expense on Attributable Indebtedness of such
Person for such period determined on a consolidated basis.
"Consolidated Net Income" of any Person for any period means the net
income (or loss) of such Person and its Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP, without giving effect to
dividends on any series of preferred stock of any Subsidiary of such Person,
whether or not in cash, to the extent such consolidated net income was reduced
thereby; provided that there shall be excluded from such net income (to the
extent otherwise included therein), without duplication; (i) the net income (or
loss) of any Person (other than a Subsidiary of the referent Person) in which
any Person other than the referent Person has an ownership interest, except to
the extent that any such income has actually been received by the referent
Person or any of its Wholly Owned Subsidiaries in the form of dividends or
similar distributions during such period; (ii) except to the extent includible
in the consolidated net income of the referent Person pursuant to the foregoing
clause (i), the net income (or loss) of any Person that accrued prior to the
date that (a) such Person becomes a Subsidiary of the referent Person or is
merged into or consolidated with the referent Person or any of its Subsidiaries
or (b) the assets of such Person are acquired by the referent Person or any of
its Subsidiaries; (iii) the net income of any Subsidiary of the referent Person
(other than a Wholly Owned Subsidiary) to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary of that income
is not permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary during such period; (iv) any gain (or loss),
together with any related provisions for taxes on any such gain, realized during
such period by the referent Person or any of it Subsidiaries upon (a) the
acquisition of any securities, or the extinguishment of any Indebtedness, of the
referent Person or any of its Subsidiaries or (b) any Asset Sale by the referent
Person or any of its Subsidiaries; (v) any extraordinary gain (or extra-ordinary
loss), together with any related provision for taxes or tax benefit resulting
from any such extraordinary gain or loss, realized by the referent Person or any
of its Subsidiaries during such period; and (vi) in the case of a successor to
such Person by consolidation, merger or transfer of its assets, any earnings of
the successor prior to such merger, consolidation or transfer of assets.
"Consolidated Net Worth" of any Person as of any date means the
stockholders' equity (including any preferred stock that is classified as equity
under GAAP, other than Disqualified Stock) of such person and its Subsidiaries
(excluding any equity adjustment for foreign currency translation for any period
subsequent to the date of initial issuance of the Securities) on a consolidated
basis at such date, as determined in accordance with GAAP, less all write-ups
subsequent to the date of initial issuance of the Securities in the book value
of any asset owned by such Person or any of its Subsidiaries; provided, however,
that in calculating the Consolidated Net Worth of the Company immediately prior
to a transaction covered by Article Eight hereof which is an acquisition by the
Company of another Person, there shall be subtracted from the Company's
Consolidated Net Worth immediately prior to such acquisition the lesser of (a)
such amount, net of Federal income tax effects, as represents expenses relating
to such acquisition, or (b) 10% of the purchase price or fair market value of
the consideration paid by the Company in connection with such acquisition.
"Consolidated Tangible Assets" of any Person as of any date means the
total assets of such Person and its Subsidiaries (excluding any assets that
would be classified as "intangible assets" under GAAP) on a consolidated basis
at such date, as determined in accordance with GAAP, less all write-ups
subsequent to the date of initial issuance of the Securities in the book value
of any asset owned by such Person or any of its Subsidiaries.
"Convertible Debentures" means the Company's 5% Convertible
Subordinated Debentures due 2001 to be issued under the Indenture dated as of
March 24, 1994 between the Company and PNC Bank, Kentucky, Inc., as Trustee, in
an aggregate principal amount not to exceed $100,000,000 ($115,000,000 if the
underwriters' over-allotment option is exercised in full).
"Corporate Trust Office" means the principal office of the Trustee in
the city at which at any particular time its corporate trust business shall be
administered. As of the date hereof, the Corporate Trust Office of the Trustee
is located at 600 Peachtree Street, Suite 900, Atlanta, Georgia 30308.
"Corporation" means a corporation, association,
company, joint-stock company or business trust.
"Credit Agreements" means the two Credit Agreements, one dated as of
November 20, 1992 and the other dated as of December 30, 1993, by and between
the Company, NationsBank of Georgia, National Association, as Agent, and the
lenders signatories thereto, together with the related documents thereto,
including, without limitation, any security documents and all exhibits and
schedules thereto and any agreement or agreements relating to any extension,
refunding, refinancing, successor or replacement facility, whether or not with
the same lender, and whether or not the principal amount or amount of letters of
credit outstanding thereunder or the interest rate payable in respect thereof
shall be thereby increased, in each case as amended and in effect from time to
time.
"Default" means any event, act or condition that is, or after notice
or the passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in
Section 307.
"Designated Senior Indebtedness" means (i) the Bank Debt, without
regard to the amounts outstanding thereunder, and (ii) any Senior Indebtedness
which, at the time of determination, has an aggregate principal amount
outstanding of at least $20 million and is specifically designated in the
instrument evidencing such Senior Indebtedness as "Designated Senior
Indebtedness" by the Company.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
final maturity date of the Securities.
"EBITDA Coverage Ratio" with respect to any period means the ratio of
(i) Consolidated EBITDA of the Company to (ii) the aggregate amount of
Consolidated Interest Expense of the Company for such period; provided, however,
that if any calculation of the Company's EBITDA Coverage Ratio requires the use
of any quarter prior to the date of initial issuance of the Securities, such
calculation shall be made on a pro forma basis, giving effect to the issuance of
the Securities and the use of the net proceeds therefrom as if the same had
occurred at the beginning of the four-quarter period used to make such
calculation; and provided further that if any such calculation requires the use
of any quarter prior to the date that any Asset Sale was consummated, or that
any Indebtedness was incurred, or that any acquisition of a hospital or other
healthcare facility or any assets purchased outside the ordinary course of
business was effected, by the Company or any of its Subsidiaries, such
calculation shall be made on a pro forma basis, giving effect to each such Asset
Sale, incurrence of Indebtedness or acquisition, as the case may be, and the use
of any proceeds therefrom, as if the same had occurred at the beginning of the
four-quarter period used to make such calculation.
"Eligible Accounts Receivable" means Accounts Receivable of the
Company and its Subsidiaries on a consolidated basis which arose within ninety
(90) days prior to any date of determination.
"Eligible Investments" of any Person means Investments of such Person
in (i) direct obligations of, or obligations the payment of which is guaranteed
by, the United States of America or an interest in any trust or fund that
invests solely in such obligations or repurchase agreements, properly secured,
with respect to such obligations; (ii) direct obligations of agencies or
instrumentalities of the United States of America having a rating of A or higher
by Standard & Poor's Corporation or A2 or higher by Moody's Investors Service,
Inc.; (iii) a certificate of deposit issued by, or other interest-bearing
deposits with, a bank having its principal place of business in the United
States of America and having equity capital of not less than $250 million; (iv)
a certificate of deposit by, or other interest-bearing deposits with, any other
bank organized under the laws of the United States of America or any state
thereof, provided that such deposit is either (A) insured by the Federal Deposit
Insurance Corporation or (B) properly secured by such bank by pledging direct
obligations of the United States of America having a market value of not less
than the face amount of such deposits; (v) prime commercial paper maturing
within 270 days of the acquisition thereof and, at the time of acquisition,
having a rating of A-1 or higher by Standard & Poor's Corporation, or P-1 or
higher by Moody's Investors Service, Inc.; (vi) eligible banker's acceptances,
repurchase agreements and tax-exempt municipal bonds having a maturity of less
than one year, in each case having a rating, or that is the full recourse
obligation of a person whose senior debt is rated A or higher by Standard &
Poor's Corporation or A2 or higher by Moody's Investors Service, Inc.; (vii) any
other investment having a rating of A or higher or A-1 or higher by Standard &
Poor's Corporation or A2 or higher or P-1 or higher by Moody's Investors
Service, Inc.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Existing Indebtedness" means all of the Indebtedness
of the Company and its Subsidiaries that is outstanding on the
date of initial issuance of the Securities.
"Event of Default" has the meaning specified in
Section 501.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, as from time to time in effect.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any interest rate swap agreement, foreign currency exchange
agreement, interest rate collar agreement, option or futures contract or other
similar agreement or arrangement relating to interest rates or foreign exchange
rates.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indebtedness" of any Person at any date means, without duplication:
(i) all indebtedness of such Person for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to a
portion thereof); (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments; (iii) all obligations of such
Person in respect of letters of credit or other similar instruments (or
reimbursement obligations with respect thereto); (iv) all obligations of such
Person with respect to Hedging Obligations (other than those that fix the
interest rate on variable rate indebtedness otherwise permitted by the Indenture
or that protect the Company and/or its Subsidiaries against changes in foreign
exchange rates); (v) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services, except trade payables and accrued
expenses incurred in the ordinary course of business; (vi) all Capitalized Lease
Obligations of such Person; (vii) all indebtedness of others secured by a Lien
on any asset of such Person, whether or not such indebtedness is assumed by such
Person; (viii) all indebtedness of others guaranteed by such Person to the
extent of such guarantee; and (ix) all Attributable Indebtedness. The amount of
Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above, the maximum liability
of such Person for any such contingent obligations at such date and, in the case
of clause (vii), the amount of the Indebtedness secured.
"Interest Expense" of any Person for any period means the aggregate
amount of interest which, in accordance with GAAP, would be set opposite the
caption "interest expense" or any like caption on an income statement for such
Person (including, without limitation or duplication, imputed interest included
in Capitalized Lease Obligations, all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing, the net costs associated with Hedging Obligations, amortization of
financing fees and expenses, the interest portion of any deferred payment
obligation, amortization of discount and all other non-cash interest expense
other than interest amortized to cost of sales) plus the aggregate amount, if
any, by which such interest expense was reduced as a result of the amortization
of deferred debt restructuring credits for such period.
"Inventory" means all of the inventory of the Company and each of its
Subsidiaries which, in accordance with GAAP, would be set opposite the caption
"inventory" or any like caption on a balance sheet of the Company.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Interest Payment Date" means the Stated Maturity of
an installment of interest on the Securities.
"Investments" of any Person means (i) all investments by such Person
in any other Person in the form of loans, advances or capital contributions
(excluding commission, travel and similar advances to officers and employees
made in the ordinary course of business), (ii) all guarantees of Indebtedness or
other obligations of any other Person by such Person, (iii) all purchases (or
other acquisitions for consideration) by such Person of Indebtedness, Capital
Stock or other securities of any other Person and (iv) all other items that
would be classified as investments (including, without limitation, purchases of
assets outside the ordinary course of business) on a balance sheet of such
Person prepared in accordance with GAAP.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or other similar encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected under
applicable law (including, without limitation, any conditional sale or other
title retention agreement, and any financing lease in the nature thereof, any
agreement to sell, and any filing of, or agreement to give, any financing
statement (other than notice filings not perfecting a security interest) under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Net Proceeds" with respect to any Asset Sale means (i) cash (in U.S.
dollars or freely convertible into U.S. dollars) received by the Company or any
of its Subsidiaries from such Asset Sale (including, without limitation, cash
received as consideration for the assumption or incurrence of liabilities
incurred in connection with or in anticipation of such Asset Sale), after (a)
provision for all income or other taxes measured by or resulting from such Asset
Sale or the transfer of the proceeds of such Asset Sale to the Company or any of
its Subsidiaries, (b) payment of all brokerage commissions and the underwriting
and other fees and expenses related to such Asset Sale and (c) deduction of an
appropriate amount to be provided by the Company or any of its Subsidiaries as a
reserve, in accordance with GAAP, against any liabilities associated with the
assets sold or otherwise disposed of in such Asset Sale and retained by the
Company or any of its Subsidiaries after such Asset Sale (including, without
limitation, pension and other post-employment benefit liabilities and
liabilities related to environmental matters) or against any indemnification
obligations associated with the sale or other disposition of the assets sold or
otherwise disposed of in such Asset Sale and (ii) all non-cash consideration
received by the Company or any of its Subsidiaries from such Asset Sales upon
the liquidation or conversion of such consideration into cash.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Permitted Liens" means (i) Liens for taxes, assessments or
governmental charges or claims that either (a) are not yet delinquent or (b) are
being contested in good faith by appropriate proceedings; (ii) statutory Liens
of landlords and carriers', warehousemen's, mechanics', suppliers',
materialmen's, repairmen's or other like Liens arising in the ordinary course of
business and with respect to amounts that either (a) are not yet delinquent or
(b) are being contested in good faith by appropriate proceedings; (iii) Liens
(other than any Lien imposed by the Employee Retirement Income Security Act of
1974, as amended) incurred or deposits due in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types of
social security; (iv) Liens incurred or deposits made to secure the performance
of tenders, bids, leases, statutory obligations, surety and appeal bonds,
progress payments, government contracts and other obligations of like nature
(exclusive of obligations for the payment of borrowed money), in each case,
incurred in the ordinary course of business; (v) attachment or judgment Liens
not giving rise to a Default or an Event of Default; (vi) easements,
rights-of-way, restrictions and other similar charges or encumbrances not
interfering with the ordinary conduct of the business of the Company or any of
its Subsidiaries; (vii) leases or subleases granted to others not interfering
with the ordinary conduct of the business of the Company or any of its
Subsidiaries; (viii) Liens with respect to any Acquired Indebtedness; provided
that such Liens only extend to assets that were subject to such Liens prior to
the acquisition of such assets by the Company or its Subsidiaries; (ix) Liens
securing Senior Indebtedness or Refinancing Indebtedness; provided, in the case
of Refinancing Indebtedness, that such Liens only extend to the assets securing
the Indebtedness being refinanced and such refinanced Indebtedness was
previously secured by such assets; (x) Liens on Accounts Receivable (and
guarantees by third parties of such Accounts Receivable or collateral pledged by
account obligors or other unrelated third parties securing such Accounts
Receivable) or Inventory; (xi) purchase money mortgages (including Capitalized
Lease Obligations); (xii) Liens existing on the date of initial issuance of the
Securities; (xiii) Liens on assets of any Subsidiary of the Company securing
Indebtedness of such Subsidiary; provided that such Indebtedness is permitted to
be incurred by the terms of the Indenture; (xiv) bankers' liens with respect to
the right of set-off arising in the ordinary course of business against amounts
maintained in bank accounts or certificates of deposit in the name of the
Company or any Subsidiary; (xv) the interest of any issuer of a letter of credit
in any cash or Eligible Investment deposited with or for the benefit of such
issuer as collateral for such letter of credit; provided that the Indebtedness
so collateralized is permitted to be incurred by the terms of the Indenture;
(xvi) any Lien consisting of a right of first refusal or option to purchase the
Company's ownership interest in any Subsidiary, which right of first refusal or
option is entered into in the ordinary course of business; and (xvii) the Lien
granted to the Trustee pursuant to Section 607 hereof and any substantially
equivalent Lien granted to the respective trustees under the indentures for
other debt securities of the Company.
"Person" means any individual, corporation, partnership, joint
venture, incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
"PP&E" means the amount shown for "Property, plant and equipment, net"
on a consolidated balance sheet for the Company and its Subsidiaries.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" means with respect to any Person all Capital Stock
of such Person which has a preference in liquidation or a preference with
respect to the payment of dividends or distributions of operating profit or
cash.
"Proceeding" has the meaning specified in Section
1202.
"Refinancing Indebtedness" means Indebtedness that refunds, refinances
or extends any Existing Indebtedness, provided that: (i) the Refinancing
Indebtedness is the obligation of the same Person and is subordinated to the
Securities, if at all, to the same extent as the Indebtedness being refunded,
refinanced or extended; (ii) the Refinancing Indebtedness is scheduled to mature
no earlier than the Indebtedness being refunded, refinanced or extended; (iii)
the Refinancing Indebtedness has a Weighted Average Life to Maturity at the time
such Refinancing Indebtedness is incurred that is equal to or greater than the
Weighted Average Life to Maturity of the portion of the Indebtedness being
refunded, refinanced or extended; (iv) the Refinancing Indebtedness is secured
only to the extent, if at all, by the assets that the Indebtedness being
refunded, refinanced or extended is secured; and (v) such Refinancing
Indebtedness is in an aggregate principal amount that is equal to or less than
the aggregate principal amount then outstanding under the Indebtedness being
refunded, refinanced or extended (except for issuance costs and increases in
Attributable Indebtedness due solely to increases in the present value
calculations resulting from renewals or extensions of the terms of the
underlying leases in effect on the date of initial issuance of the Securities).
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture and includes any Repurchase Date as defined in Section 1301.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the March 15 or September 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Repurchase Date" has the meaning specified in Section
1301.
"Repurchase Event" shall have the meaning specified in
Section 1303.
"Repurchase Price" has the meaning specified in
Section 1301.
"Responsible Officer", when used with respect to the Trustee, means
any officer within the Corporate Trust Office including without limitation any
vice president, any assistant vice president, any trust officer, any assistant
secretary or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Restricted Payment" means with respect to any Person: (i) the
declaration of any dividend or the making of any other payment or distribution
of cash, securities or other property or assets in respect of such Person's
Capital Stock (except that a dividend payable solely in Capital Stock (other
than Disqualified Stock) of such Person shall not constitute a Restricted
Payment); (ii) any payment on account of the purchase, redemption, retirement or
other acquisition for value of such Person's Capital Stock or any other payment
or distribution made in respect thereof, either directly or indi- rectly; or
(iii) any payment on account of the purchase, redemption, retirement, defeasance
or other acquisition for value of Indebtedness of the Company or its
Subsidiaries which is pari passu with or subordinated in right of payment to the
Securities and has a scheduled maturity date subsequent to the maturity of the
Securities; provided, however, that with respect to the Company and its
Subsidiaries, Restricted Payments shall not include any payment described (a) in
clause (i), (ii) or (iii) above made (1) to the Company or any of its Wholly
Owned Subsidiaries by any of the Company's Subsidiaries or (2) by the Company to
any of its Wholly Owned Subsidiaries or (3) by any Subsidiary provided that the
Company or another Subsidiary receives its proportionate share thereof or (b) in
clause (ii) above if the payment is made to purchase or redeem a partnership
interest in a Subsidiary and the Company's EBITDA Coverage Ratio on the date
thereof would be at least 2.0 to 1, determined on a pro forma basis as if such
payment had been made, and the acquisition of the partnership interest, had
occurred at the beginning of the four-quarter period used to calculate the
Company's EBITDA Coverage Ratio or (c) in clause (iii) above made with the Net
Proceeds from any Asset Sale remaining after completion of the Asset Sale Offer
made in connection with such Asset Sale, all as contemplated under "Limitations
on Asset Sales."
"Sale and Leaseback Transaction" means, with respect to any Person, an
arrangement with any bank, insurance company or other lender or investor or to
which such lender or investor is a party, providing for the leasing by such
Person or any of its Subsidiaries of any property or asset of such Person or any
of its Subsidiaries which has been or is being sold or transferred by such
Person or such Subsidiary to such lender or investor or to any Person to whom
funds have been or are to be advanced by such lender or investor on the security
of such property or asset.
"Securities Payment" has the meaning specified in
Section 1202.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means the principal of and premium, if any, and
interest on (such interest on Senior Indebtedness, wherever referred to in the
Indenture, is deemed to include interest accruing after the filing of a petition
initiating any proceeding pursuant to any bankruptcy law in accordance with and
at the rate (including any rate applicable upon any default or event of default,
to the extent unlawful) specified in any document evidencing the Senior
Indebtedness, whether or not the claim for such interest is allowed as a claim
after such filing in any proceeding under such bankruptcy law) and other amounts
due on or in connection with any Indebtedness of the Company existing on the
date of initial issuance of the Securities or any Indebtedness of the Company
thereafter created, incurred or assumed and permitted under Section 1008,
unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall not be senior in right of payment to the
Securities.
"Senior Subordinated Debt" means the Securities and any other
indebtedness, guarantee or obligation of the Company that specifically provides
that such indebtedness, guarantee or obligation is to rank pari passu with other
Senior Subordinated Debt of the Company and is not subordinated by its terms to
any indebtedness, guarantee or obligation of the Company which is not Senior
Indebtedness.
"Significant Subsidiary" means a Subsidiary of the Company which at
the time of determination either (i) had tangible assets which, as of the
Company's most recent quarterly consolidated balance sheet, constituted at least
5% of Consolidated Tangible Assets as of such date, or (ii) had revenues for the
12-month period ending on the date of the Company's most recent quarterly
consolidated statement of income which constituted at least 5% of the Company's
total consolidated revenues for such period.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subordinated Obligations" means any principal of, premium, if any,
and interest on the Securities payable pursuant to the terms of the Securities
or upon acceleration, including any amounts received upon the exercise of rights
of rescission or other rights of action (including claims for damages) or
otherwise, to the extent relating to the purchase price of the Securities or
amounts corresponding to such principal, premium, if any, or interest on the
Securities.
"Subsidiary" of any Person means (i) any corporation of which Common
Equity having ordinary voting power to elect a majority of the directors of such
corporation is owned by such Person directly or through one or more other
subsidiaries of such Person and (ii) any entity other than a corporation in
which such Person, directly or indirectly, owns at least 50% of the Common
Equity of such entity and has the authority to manage such entity on a
day-to-day basis.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday, other than any day on which securities are not traded on the applicable
securities exchange or in the applicable securities market.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness or portion thereof at any date, the number of years obtained by
dividing (i) the then outstanding principal amount of such Indebtedness or
portion thereof (if applicable) into (ii) the sum of the products obtained by
multiplying (a) the amount of each then remaining installment, sinking fund,
serial maturity or other required payment of principal, including payment at
final maturity, in respect thereof, by (b) the number of years (calculated to
the nearest one-twelfth) that will elapse between such date and the making of
such payment.
"Wholly Owned Subsidiary" of any person means (i) a Subsidiary of
which 100% of the Common Equity (except for director's qualifying shares or
certain minority interests owned by other Persons solely due to local law
requirements that there be more than one stockholder, but which interest is not
in excess of what is required for such purpose) is owned directly by such Person
or through one or more other Wholly Owned Subsidiaries of such Person and (ii)
any entity other than a corporation in which such Person, directly or
indirectly, owns all of the Common Equity of such entity.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than an Officers'
Certificate provided pursuant to Section 1004 hereof) shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, by Board Resolution fix any day as the record date for the
purpose of determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted to be given or taken by Holders. If not set
by the Company prior to the first solicitation of a Holder made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date, only the Holders on such date (or their
duly designated proxies) shall be entitled to give or take, or vote on, the
relevant action.
(d) The ownership of Securities shall be proved by
the Security Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at such Holder's address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness and the Holders of Securities, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York, without giving effect to
such State's conflicts of laws principles.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Stated
Maturity or Repurchase Date of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, the Redemption Date, or the
Repurchase Date, or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption
Date, Repurchase Date or Stated Maturity, as the case may be.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The Securities and the Trustee's certificates of authentication shall
be in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods on steel engraved borders or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 202. Form of Face of Security.
HEALTHSOUTH Rehabilitation Corporation
9.5% Senior Subordinated Notes due 2001
No. $
HEALTHSOUTH Rehabilitation Corporation, a corporation duly organized
and existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to , or registered assigns, the principal
sum of Dollars on April 1, 2001, and to pay interest thereon from and including
the date of initial issuance of Securities under the Indenture, or from and
including the most recent Interest Payment Date to which interest has been paid
or duly provided for, semiannually on April 1 and October 1 in each year,
commencing October 1, 1994, at the rate of 9,5% per annum, until the principal
hereof is paid or made available for payment. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the March 15 or
September 15 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture. Payment
of the principal of (and premium, if any) and interest on this Security will be
made at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, The City of New York and in such other cities, if any, as
the Company may designate in writing to the Trustee, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
HEALTHSOUTH Rehabilitation Corporation
By
Attest:
Secretary
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company designated as its 9.5% Senior Subordinated Notes due 2001 (herein called
the "Securities"), limited in aggregate principal amount to $287,500,000
(including the underwriters' over-allotment option), issued and to be issued
under an Indenture, dated as of March , 1994 (herein called the "Indenture"),
between the Company and NationsBank of Georgia, National Association, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee, the
holders of Senior Indebtedness and the Holders of the Securities, and of the
terms upon which the Securities are, and are to be, authenticated and delivered.
The Securities are subject to redemption upon not less than 30 nor
more than 60 days' notice by first class mail, at any time on or after April 1,
1998, as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount):
If redeemed during the 12-month period beginning April 1 of the
years indicated,
Redemption
Year Price
1998 . . . 104.750%
1999 . . . 102.375%
2000 . . . 100.000%
together in the case of any such redemption with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
Regular Record Dates referred to on the face hereof, all as provided in the
Indenture.
The Indenture provides that if a Repurchase Event (as defined therein)
occurs, each Holder of Securities shall have the right, in accordance with the
provisions of the Indenture, to require the Company to repurchase all of such
Holder's Securities, or any portion thereof that is an integral multiple of
$1,000, for cash at a price equal to 101% of the principal amount of such
Securities to be repurchased, together with accrued interest to the Repurchase
Date, but any interest installment the Stated Maturity of which is on or prior
to such Repurchase Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
Regular Record Dates referred to on the face hereof, all as provided in the
Indenture.
In the event of redemption or repurchase of this Security in part
only, a new Security or Securities for the portion hereof not redeemed or
repurchased will be issued in the name of the Holder hereof upon the
cancellation hereof.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in principal amount of the
Securities at the time Outstanding shall have made written request to the
Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not
have received from the Holders of a majority in principal amount at the time
Outstanding a written direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the absolute
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
SECTION 204. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities referred to in the within-mentioned
Indenture.
NATIONSBANK OF GEORGIA, NATIONAL
ASSOCIATION
as Trustee
By
Authorized Signatory
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $287,500,000
(including $37,500,000 aggregate principal amount of Securities that may be sold
by the Company pursuant to the Underwriting Agreement, dated March 17, 1994,
between the Company and Smith Barney Shearson Inc.), except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Section 304, 305, 306, 906,
1108 or 1302.
The Securities shall be known and designated as the " 9.5% Senior
Subordinated Notes due 2001" of the Company. Their Stated Maturity shall be
April 1, 2001, and they shall bear interest at the rate of 9.5% per annum, from
and including the date of initial issuance of the Securities under this
Indenture, or from and including the most recent Interest Payment Date to which
interest has been paid or duly provided for, as the case may be, payable
semiannually on April 1 and October 1, commencing October 1, 1994, until the
principal thereof is paid or made available for payment. Each payment of
interest shall include interest accrued to but excluding the Interest Payment
Date on which payment is to be made.
The principal of (and premium, if any) and interest on the Securities
shall be payable at the office or agency of the Company in the Borough of
Manhattan, The City of New York maintained for such purpose and at any other
office or agency maintained by the Company for such purpose; provided, however,
that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
The Securities shall be redeemable as provided in Article Eleven.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Twelve.
The Securities shall be subject to repurchase at the option of the
Holder as provided in Article Thirteen.
SECTION 302. Denominations.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
Each Security shall be dated March __, 1994 and shall also bear the
date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company shall cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
authorized denominations. Until so exchanged the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities.
SECTION 305. Registration, Registration of Transfer and
Exchange.
(a) The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency designated pursuant to Section 1002 being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Securities and of transfers of Securities. The Trustee
is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided. At all reasonable
times the Security Register shall be open for inspection by the Company.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
(b) All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1108 or 1302 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a period beginning 15 days before the day of
the mailing of a notice of redemption of Securities selected for redemption
under Section 1104 and ending on the day of such mailing, or (ii) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest. At the
option of the Company, interest on any Security may be paid by mailing a check
to the address of the Holder thereof as such address appears in the Securities
Register.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at his address as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the absolute
owner of such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 307) interest on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of as directed by a Company Order.
SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable,
or
(ii) will become due and payable
at their Stated Maturity within one
year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount in cash sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and interest to the
date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
provided, however, that the Company shall be deemed to have made the
deposit required herein as to any Securities in respect of which the
Company has mailed a check to the address of the Holder thereof as such
address appears in the Security Register;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company (including all fees and expenses of the Trustee
required to be paid by the Company hereunder); and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article Twelve or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any Security when it
becomes due and payable, and continuance of such default for a period of 30
days; or
^
default in the payment of the principal of
(or premium, if any, on) any Security at its Maturity;
or
(3) default in the performance, or breach, of the
provisions of Article Eight hereof; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company contained in Sections 1008 through 1016 of this Indenture,
and continuance of such default or breach for a period of 30 days after
there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a
period of 45 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the Outstanding
Securities a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(6) any acceleration of the maturity of Indebtedness of the Company or
any Significant Subsidiary or any two or more Subsidiaries of the Company
which, if merged, would be a Significant Subsidiary having a principal
amount outstanding in excess of $5,000,000, or a failure to pay such
Indebtedness at its stated maturity, provided that such acceleration or
failure to pay is not cured within 10 days after such acceleration or
failure to pay;
(7) the entry by a court or courts of competent jurisdiction of a
final judgment or final judgments for the payment of money against the
Company or any Significant Subsidiary or any two or more Subsidiaries of
the Company which, if merged, would be a Significant Subsidiary, which
remain undischarged for a period (during which execution shall not be
effectively stayed, the posting of any required bond not being deemed an
execution for purposes hereof) of 30 days after all rights to appeal have
been exhausted, provided that the aggregate amount of all such judgments
exceeds $5,000,000; or
(8) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Significant
Subsidiary or any two or more Subsidiaries of the Company which, if merged,
would be a Significant Subsidiary, in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company or any Significant Subsidiary or any two or more Subsidiaries of
the Company which, if merged, would be a Significant Subsidiary, a bankrupt
or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or any Significant Subsidiary or any two or more Subsidiaries
of the Company which, if merged, would be a Significant Subsidiary, under
any applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the Company or any Significant Subsidiary or any two or more Subsidiaries
of the Company which, if merged, would be a Significant Subsidiary, or of
any substantial part of their respective property, or ordering the winding
up or liquidation of affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect
for a period of 90 consecutive days; or
(9) the commencement by the Company or any Significant Subsidiary or
any two or more Subsidiaries of the Company which, if merged, would be a
Significant Subsidiary, of a voluntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt
or insolvent, or the consent to the entry of a decree or order for relief
in respect of the Company or any Significant Subsidiary or any two or more
Subsidiaries of the Company which, if merged, would be a Significant
Subsidiary, in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State law,
or the consent to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Significant
Subsidiary or any two or more Subsidiaries of the Company which, if merged,
would be a Significant Subsidiary, or of any substantial part of their
respective property, or the making of an assignment for the benefit of
creditors, or the admission in writing of inability to pay debts generally
as they become due, or the taking of corporate action by the Company or any
Significant Subsidiary or any two or more Subsidiaries of the Company
which, if merged, would be a Significant Subsidiary, in furtherance of any
such action; or
(10) a default in the payment of the Repurchase Price in respect of
any Security on the Repurchase Date therefor in accordance with the
provisions of Article Thirteen.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default occurs and is continuing, then and in any such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal of all the Securities to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal shall
become immediately due and payable.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the Outstanding Securities, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities,
and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the principal
of Securities which have become due solely by such declaration