http://smallbusiness.findlaw.com
|
http://smallbusiness.findlaw.com
|
| , Sep. 7, 2008 |
================================================================================
HEALTHSOUTH CORPORATION,
as Issuer,
and
NATIONAL CITY BANK,
as Trustee
INDENTURE
Dated as of September 28, 2001
7 3/8% Senior Notes due 2006, Series A
7 3/8% Senior Notes due 2006, Series B
8 3/8% Senior Notes due 2011, Series A
8 3/8% Senior Notes due 2011, Series B
================================================================================
<PAGE>
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- --------
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A
(a)(5) 7.10
(b) 7.08; 7.10; 10.02
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 2.05
(b) 10.03
(c) 10.03
313(a) 7.06
(b)(1) 7.06
(b)(2) 7.06
(c) 7.06; 10.02
(d) 7.06
314(a) 4.02; 4.08; 10.02
(b) N.A.
(c)(1) 10.04; 10.05
(c)(2) 10.04; 10.05
(c)(3) N.A.
(d) N.A.
(e) 10.05
(f) N.A.
315(a) 7.01; 7.02
(b) 7.05; 10.02
(c) 7.01
(d) 6.05; 7.01; 7.02
(e) 6.11
316(a) (last sentence) 2.08
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) 8.02
(b) 6.07
N.A. means Not Applicable
<PAGE>
TIA Indenture
Section Section
------- --------
(c) 8.04
317(a)(1) 6.08
(a)(2) 6.09
(b) 2.04
318(a) 10.01
--------------------
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE 1
<S> <C>
DEFINITIONS......................................................................................................1
-----------
Section 1.01 Definitions....................................................................................1
-----------
Section 1.02 Other Definitions.............................................................................16
-----------------
Section 1.03 Incorporation by Reference of Trust Indenture Act.............................................17
-------------------------------------------------
Section 1.04 Rules of Construction.........................................................................17
---------------------
ARTICLE 2
THE NOTES........................................................................................................17
---------
Section 2.01 Dating; Incorporation of Form in Indenture; Form of Notes.....................................17
---------------------------------------------------------
Section 2.02 Execution and Authentication; Appointment of Authenticating Agent.............................18
-----------------------------------------------------------------
Section 2.03 Registrar and Paying Agent....................................................................19
--------------------------
Section 2.04 Paying Agent To Hold Money in Trust...........................................................19
-----------------------------------
Section 2.05 Holder Lists..................................................................................19
------------
Section 2.06 Replacement Notes.............................................................................20
-----------------
Section 2.07 Outstanding Notes.............................................................................20
-----------------
Section 2.08 Treasury Notes................................................................................20
--------------
Section 2.09 Temporary Notes...............................................................................21
---------------
Section 2.10 Cancellation..................................................................................21
------------
Section 2.11 Defaulted Interest............................................................................21
------------------
Section 2.12 Deposit of Moneys; Payments...................................................................21
---------------------------
Section 2.13 "CUSIP" Number................................................................................22
--------------
Section 2.14 Depositary....................................................................................22
----------
Section 2.15 Registration of Transfers and Exchanges.......................................................23
---------------------------------------
Section 2.16 Restrictive Legends...........................................................................30
-------------------
ARTICLE 3
REDEMPTION.......................................................................................................31
----------
Section 3.01 Notices to Trustee............................................................................31
------------------
Section 3.02 Selection of Notes To Be Redeemed.............................................................31
---------------------------------
Section 3.03 Notice of Redemption..........................................................................32
--------------------
Section 3.04 Effect of Notice of Redemption................................................................33
------------------------------
Section 3.05 Deposit of Redemption Price...................................................................33
---------------------------
Section 3.06 Notes Redeemed in Part........................................................................34
----------------------
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
ARTICLE 4
<S> <C>
COVENANTS.......................................................................................................34
---------
Section 4.01 Payment of Notes..............................................................................34
----------------
Section 4.02 Reports.......................................................................................34
-------
Section 4.03 Waiver of Stay, Extension or Usury Laws.......................................................34
---------------------------------------
Section 4.04 Compliance Certificate; Notice of Default; Tax Information....................................35
----------------------------------------------------------
Section 4.05 Payment of Taxes and Other Claims.............................................................35
---------------------------------
Section 4.06 Corporate Existence...........................................................................35
-------------------
Section 4.07 Maintenance of Office or Agency...............................................................36
-------------------------------
Section 4.08 Compliance with Laws..........................................................................36
--------------------
Section 4.09 Maintenance of Properties and Insurance.......................................................36
---------------------------------------
Section 4.10 Limitation on Restricted Payments.............................................................37
---------------------------------
Section 4.11 Limitation on Additional Indebtedness and Subsidiary Preferred Stock..........................37
--------------------------------------------------------------------
Section 4.12 Limitation on Asset Sales.....................................................................39
-------------------------
Section 4.13 Limitation on Transactions with Affiliates....................................................42
------------------------------------------
Section 4.14 Limitation on Liens Prior to the Fall-Away Event..............................................42
------------------------------------------------
Section 4.15 Purchase of Notes upon a Change of Control....................................................43
------------------------------------------
Section 4.16 Limitation on Restrictions on Distributions from Subsidiaries.................................44
-------------------------------------------------------------
Section 4.17 Limitations on Layering Indebtedness..........................................................45
------------------------------------
Section 4.18 Limitations on Liens After the Fall-Away Event................................................45
----------------------------------------------
Section 4.19 Limitation on Sale and Leaseback Transactions.................................................46
---------------------------------------------
ARTICLE 5
SURVIVING ENTITY................................................................................................46
----------------
Section 5.01 Limitations on Mergers and Consolidations Prior to the Fall-Away Event........................46
----------------------------------------------------------------------
Section 5.02 Limitations on Mergers and Consolidations After the Fall-Away Event...........................47
-------------------------------------------------------------------
Section 5.03 Successor Substituted.........................................................................47
---------------------
ARTICLE 6
DEFAULTS AND REMEDIES...........................................................................................47
---------------------
Section 6.01 Events of Default.............................................................................47
-----------------
Section 6.02 Acceleration..................................................................................49
------------
Section 6.03 Other Remedies................................................................................50
--------------
Section 6.04 Waiver of Existing Defaults and Events of Default.............................................50
-------------------------------------------------
Section 6.05 Control by Majority...........................................................................50
-------------------
Section 6.06 Limitation on Suits...........................................................................51
-------------------
Section 6.07 Rights of Holders To Receive Payment..........................................................51
------------------------------------
Section 6.08 Collection Suit by Trustee....................................................................51
--------------------------
Section 6.09 Trustee May File Proofs of Claim..............................................................52
--------------------------------
Section 6.10 Priorities....................................................................................52
----------
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
Section 6.11 Undertaking for Costs.........................................................................52
---------------------
ARTICLE 7
TRUSTEE.........................................................................................................53
-------
Section 7.01 Duties of Trustee.............................................................................53
-----------------
Section 7.02 Rights of Trustee.............................................................................54
-----------------
Section 7.03 Individual Rights of Trustee..................................................................55
----------------------------
Section 7.04 Trustee's Disclaimer..........................................................................55
--------------------
Section 7.05 Notice of Defaults............................................................................55
------------------
Section 7.06 Reports by Trustee to Holders.................................................................56
-----------------------------
Section 7.07 Compensation and Indemnity....................................................................56
--------------------------
Section 7.08 Replacement of Trustee........................................................................57
----------------------
Section 7.09 Successor Trustee by Consolidation, Merger or Conversion......................................58
--------------------------------------------------------
Section 7.10 Eligibility; Disqualification.................................................................58
-----------------------------
Section 7.11 Preferential Collection of Claims Against Company.............................................58
-------------------------------------------------
ARTICLE 8
MODIFICATIONS, AMENDMENTS, SUPPLEMENTS AND WAIVERS..............................................................58
--------------------------------------------------
Section 8.01 Without Consent of Holders....................................................................58
--------------------------
Section 8.02 With Consent of Holders.......................................................................59
-----------------------
Section 8.03 Compliance with TIA...........................................................................60
-------------------
Section 8.04 Revocation and Effect of Consents.............................................................60
---------------------------------
Section 8.05 Notation on or Exchange of Notes..............................................................61
--------------------------------
Section 8.06 Trustee To Sign Amendments, etc...............................................................61
-------------------------------
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE..............................................................................61
----------------------------------
Section 9.01 Satisfaction and Discharge of Indenture.......................................................61
---------------------------------------
Section 9.02 Legal Defeasance..............................................................................62
----------------
Section 9.03 Covenant Defeasance...........................................................................63
-------------------
Section 9.04 Conditions to Legal Defeasance or Covenant Defeasance.........................................63
-----------------------------------------------------
Section 9.05 Application of Trust Money....................................................................64
--------------------------
Section 9.06 Repayment to the Company......................................................................65
------------------------
Section 9.07 Reinstatement.................................................................................65
-------------
ARTICLE 10
MISCELLANEOUS....................................................................................................65
-------------
Section 10.01 TIA Controls..................................................................................65
------------
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Section 10.02 Notices.......................................................................................66
-------
Section 10.03 Communications by Holders with Other Holders..................................................66
--------------------------------------------
Section 10.04 Certificate and Opinion as to Conditions Precedent............................................67
--------------------------------------------------
Section 10.05 Statements Required in Certificate and Opinion................................................67
----------------------------------------------
Section 10.06 Rules by Trustee and Agents...................................................................67
---------------------------
Section 10.07 Business Days; Legal Holidays.................................................................67
-----------------------------
Section 10.08 Governing Law.................................................................................67
-------------
Section 10.09 Waiver of Trial by Jury.......................................................................68
-----------------------
Section 10.10 Submission to Jurisdiction....................................................................68
--------------------------
Section 10.11 No Adverse Interpretation of Other Agreements.................................................68
---------------------------------------------
Section 10.12 No Recourse Against Others....................................................................68
--------------------------
Section 10.13 Successors....................................................................................68
----------
Section 10.14 Multiple Counterparts.........................................................................68
---------------------
Section 10.15 Table of Contents, Headings, etc..............................................................68
--------------------------------
Section 10.16 Separability..................................................................................68
------------
Section 10.17 Translation...................................................................................68
-----------
SIGNATURES......................................................................................................S-1
EXHIBITS
Exhibit A Form of Initial Notes
Exhibit B Form of Exchange Notes
Exhibit C Form of Rule 144A Transfer Certificate
Exhibit D Form of Regulation S Transfer Certificate
Exhibit E Form of Rule 144 Transfer Certificate
Exhibit F Form of Accredited Investor Transfer Certificate
</TABLE>
iv
<PAGE>
INDENTURE, dated as of September 28, 2001, between HEALTHSOUTH
CORPORATION, a corporation incorporated in Delaware (the "Company"), as Issuer,
and National City Bank, a national banking association, as Trustee (the
"Trustee").
The Company has duly authorized the creation of an issue of Series A
7 3/8% Senior Notes due 2006, Series B 7 3/8% Senior Notes due 2006, Series A
8 3/8% Senior Notes due 2011 and Series B 8 3/8% Senior Notes due 2011, and, to
provide therefor, the Company has duly authorized the execution and delivery of
this Indenture. All things necessary to make the Notes, when duly issued and
executed by the Company, and authenticated and delivered hereunder, the valid
obligations of the Company, and to make this Indenture a valid and binding
agreement of the Company, have been done.
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders:
ARTICLE 1
DEFINITIONS
-----------
Section 1.01 Definitions.
-----------
"Acquired Indebtedness" means (i) with respect to any Person that
becomes a Subsidiary of the Company after the Issue Date, Indebtedness of such
Person and its Subsidiaries existing at the time such Person becomes a
Subsidiary of the Company and (ii) with respect to the Company or any of its
Subsidiaries, any Indebtedness assumed by the Company or any of its Subsidiaries
in connection with the acquisition of an asset from another Person.
"Additional Interest" has the meaning provided to such term in the
Registration Rights Agreement.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling, controlled by or under direct or indirect common control
with such specified Person. For the purposes of this definition, "control" when
used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise, and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent, co-Registrar, authenticating
agent or agent for service of notices and demands.
"Asset Sale" for any Person means the sale, lease, conveyance or other
disposition (including, without limitation, by merger or consolidation, and
whether by operation of law or otherwise) of any of that Person's assets
(including, without limitation, the sale or other disposition of Capital Stock
of any Subsidiary of such Person, whether by such Person or by such Subsidiary),
whether owned on the Issue Date or subsequently acquired, in one transaction
<PAGE>
or a series of related transactions, in which such Person and/or its
Subsidiaries sell, lease, convey or otherwise dispose of: (i) all or
substantially all of the Capital Stock of any of such Person's Subsidiaries;
(ii) assets which constitute all or substantially all of any division or line of
business of such Person or any of its Subsidiaries; or (iii) any other assets of
such Person or any of its Subsidiaries, other than in the ordinary course of
business, provided, that the Fair Market Value thereof shall be at least 1% of
Consolidated Tangible Assets at such time; provided, however, that the following
shall not constitute Asset Sales: (a) transactions between the Company and any
of its Wholly Owned Subsidiaries or among such Wholly Owned Subsidiaries; (b)
any transaction not prohibited by SECTION 4.10 hereof or that constitutes a
Permitted Investment; (c) any transfer of assets (including Capital Stock) that
is governed by and in accordance with Article 5 hereof or the creation of any
Lien not prohibited by SECTION 4.14 hereof; or (d) sales of damaged, worn-out or
obsolete equipment or assets that, in the Company's reasonable judgment, are no
longer either used or useful in the business of the Company or its Subsidiaries.
"Attributable Indebtedness" when used with respect to any Sale and
Leaseback Transaction means, as at the time of determination, the present value
(discounted at a rate equivalent to the interest rate implicit in the lease,
compounded on a semiannual basis) of the total obligations of the lessee for
rental payments, after excluding all amounts required to be paid on account of
maintenance and repairs, insurance, taxes, utilities and other similar expenses
payable by the lessee pursuant to the terms of the lease, during the remaining
term of the lease included in any such Sale and Leaseback Transaction or until
the earliest date on which the lessee may terminate such lease without penalty
or upon payment of a penalty (in which case the rental payments shall include
such penalty); provided, that the Attributable Indebtedness with respect to a
Sale and Leaseback Transaction shall be no less than the fair market value of
the property subject to such Sale and Leaseback Transaction.
"Bank Debt" means all obligations of the Company and its Subsidiaries,
now or hereafter existing under (i) the Credit Agreements, whether for
principal, interest, reimbursement of amounts drawn under letters of credit
issued pursuant thereto, guarantees in respect thereof, fees, expenses,
premiums, indemnities or otherwise, and (ii) any Indebtedness incurred by the
Company to extend, refund, supplement, refinance or replace, in whole or in
part, such Bank Debt, including any interest and premium on any such
Indebtedness.
"Board of Directors" means, with respect to any Person, the board of
directors or similar governing body of such Person or any duly authorized
committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification and delivered to the
Trustee.
"Capital Stock" of any Person means any and all shares, rights to
purchase, warrants or options (whether or not currently exercisable),
participation or other equivalents of or interest in (however designated) the
equity (including without limitation common stock, preferred stock and
partnership, joint venture and limited liability company interests) of such
Person (excluding any debt securities that are convertible into, or exchangeable
for, such equity).
2
<PAGE>
"Capitalized Lease Obligations" of any Person means the obligation of
such Person to pay rent or other amounts under a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such obligation shall be the capitalized amount thereof determined in
accordance with GAAP.
"Certificated Note" means a Note issued in certificated form to a
Person other than the Depositary.
"Change of Control" means the occurrence at any time prior to the
occurrence of the Fall-Away Event of any of the following: (i) all or
substantially all of the Company's assets are sold as an entirety to any Person
or related group of Persons; (ii) there shall be consummated any consolidation
or merger of the Company (A) in which the Company is not the continuing or
surviving corporation (other than a consolidation or merger with a Wholly Owned
Subsidiary of the Company in which all shares of the Company's Common Equity
outstanding immediately prior to the effectiveness thereof are changed into or
exchanged for the same consideration) or (B) pursuant to which the Company's
Common Equity would be converted into cash, securities or other property, in
each case other than a consolidation or merger of the Company in which the
holders of the Company's Common Equity immediately prior to the consolidation or
merger have, directly or indirectly, at least a majority of the total voting
power of all classes of Capital Stock entitled to vote generally in the election
of directors of the continuing or surviving corporation immediately after such
consolidation or merger in substantially the same proportion as their ownership
of the Company's Common Equity immediately before such transaction; (iii) any
Person, or any Persons acting together which would constitute a "group" for
purposes of Section 13(d) of the Exchange Act, together with any affiliates
thereof, shall beneficially own (as defined in Rule 13d-3 under the Exchange
Act) at least 50% of the total voting power of all classes of Capital Stock of
the Company entitled to vote generally in the election of directors of the
Company; (iv) at any time during any consecutive two-year period, individuals
who at the beginning of such period constituted the Board of Directors of the
Company (together with any new directors whose election by such Board of
Directors or whose nomination for election by the stockholders of the Company
was approved by a vote of 66-2/3% of the directors then still in office who were
either directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Company then in office; or (v) the
Company is liquidated or dissolved or adopts a plan of liquidation or
dissolution.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, the body performing
such duties at the time.
"Common Equity" of any Person means all Capital Stock of such Person
that is generally entitled to (i) vote in the election of directors of such
Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management and policies of such Person.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces such party pursuant to Article 5 hereof and
thereafter means such successor.
3
<PAGE>
"Consolidated Amortization Expense" of any Person for any period means
the amortization expense of such Person and its Subsidiaries for such period (to
the extent included in the computation of Consolidated Net Income of such
Person), determined on a consolidated basis in accordance with GAAP.
"Consolidated Depreciation Expense" of any Person means the
depreciation expense of such Person and its Subsidiaries for such period (to the
extent included in the computation of Consolidated Net Income of such Person),
determined on a consolidated basis in accordance with GAAP.
"Consolidated EBITDA" of any Person means, with respect to any
determination date, Consolidated Net Income, plus (i) Consolidated Income Tax
Expense, plus (ii) Consolidated Depreciation Expense, plus (iii) Consolidated
Amortization Expense, plus (iv) Consolidated Interest Expense, plus (v) all
other unusual non-cash items or non-recurring non-cash items reducing
Consolidated Net Income of such Person and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP, and less all non-cash items
increasing Consolidated Net Income of such Person and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP, in each case, for
such Person's prior four full fiscal quarters for which financial results have
been reported immediately preceding the determination date.
"Consolidated Income Tax Expense" means, for any Person for any period,
the provision for taxes based on income and profits of such Person and its
Subsidiaries to the extent such provision for income taxes was deducted in
computing Consolidated Net Income of such Person for such period, determined on
a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" of any Person for any period means,
without duplication, (i) the Interest Expense of such Person and its
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP, plus (ii) (to the extent not otherwise included within the definition
of Interest Expense as imputed interest) one-third of the rental expense on
Attributable Indebtedness of such Person for such period determined on a
consolidated basis, plus (iii) the dividend requirements of such Person and its
Subsidiaries with respect to Disqualified Stock and with respect to all other
Preferred Stock of Subsidiaries of such Person (in each case whether in cash or
otherwise (except dividends payable solely in shares of Capital Stock (other
than Disqualified Stock) of such Person or such Subsidiary)) paid, accrued or
accumulated during such period times a fraction the numerator of which is one
and the denominator of which is one minus the then effective consolidated
Federal, state and local tax rate of such Person, expressed as a decimal.
"Consolidated Net Income" of any Person for any period means the net
income (or loss) of such Person and its Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP; provided that there shall be
excluded from such net income (to the extent otherwise included therein),
without duplication:
(i) the net income (or loss) of any Person (other than a
Subsidiary of the referent Person) in which any Person other than the
referent Person has an ownership interest, except to the extent that
any such income has actually been received by the
4
<PAGE>
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 includable in the consolidated
net income of the referent Person pursuant to the foregoing clause (i),
the net income (or loss) of any Person that accrues prior to the date
that (a) such Person becomes a Subsidiary of the referent Person or is
merged into or consolidated with the referent Person or any of its
Subsidiaries or (b) the assets of such Person are acquired by the
referent Person or any of its Subsidiaries;
(iii) the net income of any Subsidiary of the referent
Person (other than a Wholly Owned Subsidiary) to the extent that the
declaration or payment of dividends or similar distributions by such
Subsidiary of that income is not permitted by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Subsidiary
during such period;
(iv) any gain (or loss), together with any related
provisions for taxes on any such gain, realized during such period by
the referent Person or any of its Subsidiaries upon (a) the acquisition
of any securities, or the extinguishment of any Indebtedness, of the
referent Person or any of its Subsidiaries or (b) any Asset Sale by the
referent Person or any of its Subsidiaries;
(v) any extraordinary gain or extraordinary loss,
together with any related provision for taxes or tax benefit resulting
from any such extraordinary gain or extraordinary loss, realized by the
referent Person or any of its Subsidiaries during such period; and
(vi) in the case of a successor to such Person by
consolidation, merger or transfer of its assets, any earnings of the
successor prior to such merger, consolidation or transfer of assets.
"Consolidated Net Worth" of any Person as of any date means the
stockholders' equity (including any preferred stock that is classified as equity
under GAAP, other than Disqualified Stock) of such Person and its Subsidiaries
(excluding any equity adjustment for foreign currency translation for any period
subsequent to the Issue Date) on a consolidated basis at such date, as
determined in accordance with GAAP, less all write-ups subsequent to the Issue
Date in the book value of any asset owned by such Person or any of its
Subsidiaries.
"Consolidated Tangible Assets" of any Person as of any date means the
total assets of such Person and its Subsidiaries (excluding any assets that
would be classified as "intangible assets" under GAAP) on a consolidated basis
at such date, as determined in accordance with GAAP, less all write-ups
subsequent to the Issue Date in the book value of any asset owned by such Person
or any of its Subsidiaries.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at National City Bank, c/o Mellon Securities Trust Company, 120 Broadway, 13th
Floor, New York, New York 10271, or such other address as the
5
<PAGE>
Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or
such other address as a successor Trustee may designate from time to time by
notice to the Holders and the Company).
"Credit Agreements" mean (i) the Credit Agreement dated as of June 23,
1998 by and among the Company, as borrower, Bank of America, N.A. (as successor
to Nationsbank, National Association), as Administrative Agent and Arranger,
J.P. Morgan Securities Inc., Deutsche Bank AG and Scotiabanc, Inc., as
Syndication Agents and Co-Arrangers, and the other lenders party thereto from
time to time, together with the related documents thereto, including, without
limitation, any security documents, if any, and all exhibits and schedules
thereto, and (ii) any other credit agreement entered into by the Company or any
of its Subsidiaries for money borrowed from or guaranteed to persons, firms or
corporations which engage in the business of lending money, in order to provide
funding for the acquisition and development of healthcare facilities or to
provide for working capital needs and other corporate purposes, including, in
the case of clause (i) or (ii) above, 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.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
Stated Maturity date of the Notes.
"DTC" means The Depository Trust Company, a New York corporation.
"DTC Letter of Representations" shall mean the Letter of
Representations, dated the Issue Date, among the Company, DTC and the Trustee.
"EBITDA Coverage Ratio" with respect to any period means the ratio of
(i) Consolidated EBITDA of the Company to (ii) the aggregate amount of
Consolidated Interest Expense of the Company for such period; provided, however,
that if any calculation of the Company's EBITDA Coverage Ratio requires the use
of any quarter prior to the Issue Date, such calculation shall be made on a pro
forma basis, giving effect to the issuance of the Notes and the use of the net
proceeds therefrom as if the same had occurred at the beginning of the
four-quarter period used to make such calculation; and provided further that if
any such calculation requires the use of any quarter prior to the date that any
Asset Sale was consummated, or that any Indebtedness was incurred, or that any
acquisition of a hospital or other healthcare facility or any assets purchased
outside the ordinary course of business was effected, by the Company or any of
its Subsidiaries, such calculation shall be made on a pro forma basis, giving
effect to each such Asset Sale, incurrence of Indebtedness or acquisition, as
the case may be, and the use of any proceeds
6
<PAGE>
therefrom, as if the same had occurred at the beginning of the four-quarter
period used to make such calculation.
"Eligible Investments" of any Person means Investments of such Person
in:
(i) direct obligations of, or obligations the payment of
which is guaranteed by, the United States of America or an interest in
any trust or fund that invests solely in such obligations or repurchase
agreements, properly secured, with respect to such obligations;
(ii) direct obligations of agencies or instrumentalities
of the United States of America having a rating of A or higher by S&P
or A2 or higher by Moody's;
(iii) a certificate of deposit issued by, or other
interest-bearing deposits with, a bank having its principal place of
business in the United States of America and having equity capital of
not less than $250,000,000;
(iv) a certificate of deposit issued 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 S&P, or P-1 or higher by Moody's; or
(vi) eligible banker's acceptances, repurchase agreements
and tax-exempt municipal bonds having a maturity of less than one year,
in each case having a rating of, or evidencing the full recourse
obligation of a person whose senior debt is rated, A or higher by S&P
or A2 or higher by Moody's.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the Series B 7 3/8% Senior Notes due 2006 (the
"Exchange 2006 Notes") and the Series B 8 3/8% Senior Notes due 2011 (the
"Exchange 2011 Notes") (the terms of which are identical to the Initial Notes
except that, unless any Exchange Notes shall be issued as Private Exchange Notes
(as defined in the Registration Rights Agreement), the Exchange Notes shall be
registered under the Securities Act, and shall not contain the restrictive
legend on the face of the form of the Initial Notes), to be issued in exchange
for the Initial Notes pursuant to the registered Exchange Offer or a Private
Exchange (as defined in the Registration Rights Agreement).
"Exchange Offer" means the registration by the Company under the
Securities Act pursuant to a registration statement of the offer by the Company
to each Holder of the Initial Notes to exchange all the Initial Notes held by
such Holder for the Exchange Notes in an aggregate principal amount equal to the
aggregate principal amount of the Initial Notes held by
7
<PAGE>
such Holder, all in accordance with the terms and conditions of the Registration
Rights Agreement.
"Exempted Debt" means the sum of the following as of any date of
determination: (i) Indebtedness of the Company and its Subsidiaries incurred
after the Issue Date and secured by Liens not otherwise permitted by SECTION
4.14 hereof or SECTION 4.18 hereof, as the case may be, and (ii) Attributable
Indebtedness of the Company and its Subsidiaries in respect of every Sale and
Leaseback Transaction entered into after the Issue Date.
"Existing Indebtedness" means all of the Indebtedness of the Company
and its Subsidiaries that is outstanding on the Issue Date.
"Fair Market Value" of any asset or items means the fair market value
of such asset or items as determined in good faith by the Board of Directors and
evidenced by a resolution of the Board of Directors.
"Fall-Away Event" means the Notes shall have been rated Investment
Grade and, if no Event of Default or Default shall have occurred and be
continuing at such time, the Company shall have delivered to the Trustee an
Officers' Certificate certifying as to the foregoing.
"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 of America, as from time to time in effect.
"guarantee" means, as applied to any obligation, (a) a guarantee (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business), direct or indirect, in any manner, of any part or all of
such obligation and (b) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down under letters of credit.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any interest rate swap agreement, foreign currency exchange
agreement, interest rate collar agreement, option or futures contract or other
similar agreement or arrangement relating to interest rates or foreign exchange
rates.
"Holder" means a Person in whose name a Note is registered on the
Registrar's books or records.
"Indebtedness" of any Person at any date means, without duplication:
(i) all indebtedness of such Person for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to a
portion thereof); (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments; (iii) all obligations of such
Person in respect of letters of credit or other similar instruments (or
reimbursement obligations with respect thereto); (iv) all obligations of such
Person with respect to Hedging Obligations
8
<PAGE>
(other than those that fix the interest rate on variable rate indebtedness
otherwise permitted by this Indenture or that protect the Company and/or its
Subsidiaries against changes in foreign exchange rates); (v) all obligations of
such Person to pay the deferred and unpaid purchase price of property or
services, except trade payables and accrued expenses incurred in the ordinary
course of business; (vi) all Capitalized Lease Obligations of such Person; (vii)
all Indebtedness of others secured by a Lien on any asset of such Person,
whether or not such Indebtedness is assumed by such Person; (viii) all
Indebtedness of others guaranteed by such Person to the extent of such
guarantee; (ix) all Attributable Indebtedness; and (x) all Disqualified Stock of
such Person and its Subsidiaries and all other Preferred Stock of Subsidiaries
of such Person valued at the greater of (a) the voluntary or involuntary
liquidation preference of such Disqualified Stock or such Preferred Stock, as
the case may be, and (b) the aggregate amount payable upon purchase, redemption,
defeasance or payment of such Disqualified Stock or such Preferred Stock, as the
case may be. The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations plus past due
interest as described above, the maximum liability of such Person for any such
contingent obligations at such date and, in the case of clause (vii), the amount
of the Indebtedness secured.
"Indenture" means this Indenture as amended, restated or supplemented
from time to time.
"Initial Notes" means the Series A 7 3/8% Senior Notes due 2006 (the
"Initial 2006 Notes") and the Series A 8 3/8% Senior Notes due 2011 (the
"Initial 2011 Notes") of the Company issued on the Issue Date and authenticated
and delivered under this Indenture pursuant to SECTION 2.02 of this Indenture
and any other notes (other than Exchange Notes) issued after the Issue Date in
accordance with clause (iv) of the fourth paragraph of SECTION 2.02.
"Initial Purchasers" refers to UBS Warburg LLC, Deutsche Banc Alex.
Brown Inc., First Union Securities, Inc., J.P. Morgan Securities, Inc., Lehman
Brothers Inc., Scotia Capital (USA) Inc., Jefferies & Company, Inc., BNY Capital
Markets, Inc., Fleet Securities, Inc. and NatCity Investments, Inc.
"Interest Expense" of any Person for any period means the aggregate
amount of interest which, in accordance with GAAP, would be set opposite the
caption "interest expense" or any like caption on an income statement for such
Person (including, without limitation or duplication, imputed interest included
in Capitalized Lease Obligations, all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing, the net costs associated with Hedging Obligations, amortization of
financing fees and expenses, the interest portion of any deferred payment
obligation, amortization of discount and all other non-cash interest expense
other than interest amortized to cost of sales) plus the aggregate amount, if
any, by which such interest expense was reduced as a result of the amortization
of deferred debt restructuring credits for such period.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Notes as specified in the forms of Note attached hereto as
Exhibits A and B.
"Investment Grade" means (i) a rating of BBB- or above, in the case of
S&P (or its equivalent under any successor Rating Categories of S&P), and Baa3
or above, in the case of
9
<PAGE>
Moody's (or its equivalent under any successor Rating Categories of Moody's), or
(ii) the equivalent in respect of the Rating Categories of any other Rating
Agencies; provided, however, that if such rating is BBB- in the case of S&P, or
Baa3 in the case of Moody's (or the equivalent in respect of the Rating
Categories of any other Rating Agencies), then such rating also shall not be
accompanied by a negative outlook, negative credit watch or review for possible
downgrade (or the equivalent thereof), as the case may be.
"Investments" of any Person means: (i) all investments by such Person
in any other Person in the form of loans, advances or capital contributions
(excluding commission, travel and similar advances to officers and employees
made in the ordinary course of business); (ii) all guarantees of Indebtedness or
other obligations of any other Person by such Person; (iii) all purchases (or
other acquisitions for consideration) by such Person of Indebtedness, Capital
Stock or other securities of any other Person; and (iv) all other items that
would be classified as investments (including, without limitation, purchases of
assets outside the ordinary course of business) on a balance sheet of such
Person prepared in accordance with GAAP.
"Issue Date" means September 28, 2001, the date the Initial Notes are
initially issued.
"Joint Venture" means any Person at least a majority of whose revenues
result from healthcare related businesses or facilities.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or other similar encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected under
applicable law (including, without limitation, any conditional sale or other
title retention agreement, and any financing lease in the nature thereof, any
agreement to sell, and any filing of, or agreement to give, any financing
statement (other than notice filings not perfecting a security interest) under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Net Proceeds" with respect to any Asset Sale means (i) cash (in U.S.
dollars or freely convertible into U.S. dollars) received by the Company or any
of its Subsidiaries from such Asset Sale (including, without limitation, cash
received as consideration for the assumption or incurrence of liabilities
incurred in connection with or in anticipation of such Asset Sale), after (a)
provision for all income or other taxes measured by or resulting from such Asset
Sale or the transfer of the proceeds of such Asset Sale to the Company or any of
its Subsidiaries, (b) payment of all commissions and other fees and expenses
related to such Asset Sale and (c) deduction of an appropriate amount to be
provided by the Company or any of its Subsidiaries as a reserve, in accordance
with GAAP, against any liabilities associated with the assets sold or otherwise
disposed of in such Asset Sale and retained by the Company or any of its
Subsidiaries after such Asset Sale (including, without limitation, pension and
other post-employment benefit liabilities and liabilities related to
environmental matters) or against any indemnification obligations associated
with the sale or other disposition of the assets sold or otherwise disposed of
in such Asset Sale and (ii) all non-cash consideration received by the Company
or any of its Subsidiaries from such Asset Sales upon the liquidation or
conversion of such consideration into cash.
10
<PAGE>
"Notes" means the Initial 2006 Notes and the Exchange 2006 Notes,
treated as a single class of securities, and the Initial 2011 Notes and the
Exchange 2011 Notes, treated as a single class of securities, in each case as
amended or supplemented from time to time in accordance with the terms hereof,
that are issued pursuant to this Indenture.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the Chief Financial Officer, Chief Accounting
Officer, Treasurer, President, any Vice President, secretary, assistant
secretary, director or other authorized signatory of such Person.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, any Vice Chairman of the Board, the Chief Executive Officer, the
President or any Vice President and by the Treasurer, any Assistant Treasurer,
the Secretary or any Assistant Secretary of the Company in their official (and
not individual) capacities; provided, however, that every Officers' Certificate
with respect to the compliance with a condition precedent to the taking of any
action under this Indenture shall include (i) a statement that the officers
making or giving such Officers' Certificate have read such condition and any
definitions or other provisions contained in this Indenture relating thereto and
(ii) a statement as to whether, in the opinion of the signers, such condition
has been complied with.
"Opinion of Counsel" means a written opinion from legal counsel (such
counsel may be an employee of or counsel to the Company or the Trustee) that
complies with the requirements of this Indenture.
"Permitted Investments" means: (i) capital contributions, advances or
loans to the Company by any Subsidiary or by the Company or any of its
Subsidiaries to a Subsidiary of the Company; (ii) the acquisition and holding by
the Company and each of its Subsidiaries of receivables owing to the Company and
such Subsidiary, if created or acquired in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms; (iii) the
acquisition and holding by the Company and its Subsidiaries of cash and Eligible
Investments; (iv) Investments in any Person as a result of which such other
Person becomes a Subsidiary of the Company or is merged into or consolidated
with or transfers all or substantially all of its assets to the Company or any
of its Subsidiaries; and (v) the making of an Investment by the Company,
directly or through a Wholly Owned Subsidiary, in a Wholly Owned Subsidiary
formed solely for the purpose of insuring the healthcare business and facilities
owned or operated by the Company or a Subsidiary and any physician employed by
or on the staff of any such business or facility (the "Insurance Subsidiary"),
provided that the amount invested in such Insurance Subsidiary does not exceed
$15,000,000.
"Permitted Liens" means: (i) Liens for taxes, assessments or
governmental charges or claims that either (a) are not yet delinquent or (b) are
being contested in good faith by appropriate proceedings; (ii) statutory Liens
of landlords and carriers', warehousemen's, mechanics', suppliers',
materialmen's, repairmen's or other like Liens arising in the ordinary course of
business and with respect to amounts that either (a) are not yet delinquent or
(b) are being contested in good faith by appropriate proceedings and as to which
appropriate reserves or other provisions have been made in accordance with GAAP;
(iii) Liens (other than any Lien imposed by the Employee Retirement Income
Security Act of 1974, as amended) incurred or
11
<PAGE>
deposits due in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security; (iv)
Liens incurred or deposits made to secure the performance of tenders, bids,
leases, statutory obligations, surety and appeal bonds, progress payments,
government contracts and other obligations of like nature (exclusive of
obligations for the payment of borrowed money), in each case, incurred in the
ordinary course of business; (v) attachment or judgment Liens not giving rise to
a Default or an Event of Default; (vi) easements, rights-of-way, restrictions
and other similar charges or encumbrances not interfering with the ordinary
conduct of the business of the Company or any of its Subsidiaries; (vii) leases
or subleases granted to others not interfering with the ordinary conduct of the
business of the Company or any of its Subsidiaries; (viii) Liens with respect to
any Acquired Indebtedness; provided that such Liens only extend to assets that
were subject to such Liens prior to the acquisition of such assets by the
Company or its Subsidiaries and, with respect to Indebtedness other than
Indebtedness ranking pari passu with the Notes, not incurred in anticipation or
contemplation of such acquisition; (ix) Liens securing Bank Debt or Refinancing
Indebtedness; provided, in the case of Refinancing Indebtedness, that such Liens
only extend to the assets securing the Indebtedness being refinanced and such
refinanced Indebtedness was previously secured by such assets; (x) purchase
money mortgages (including Capitalized Lease Obligations); (xi) Liens existing
on the Issue Date; (xii) Liens on assets of any Subsidiary of the Company
securing Indebtedness of such Subsidiary; provided that such Indebtedness is
permitted to be incurred by the terms of this Indenture; (xiii) bankers' liens
with respect to the right of set-off arising in the ordinary course of business
against amounts maintained in bank accounts or certificates of deposit in the
name of the Company or any Subsidiary; (xiv) the interest of any issuer of a
letter of credit in any cash or Eligible Investment deposited with or for the
benefit of such issuer as collateral for such letter of credit; provided that
the Indebtedness so collateralized is permitted to be incurred by the terms of
this Indenture; (xv) any Lien consisting of a right of first refusal or option
to purchase the Company's ownership interest in any Subsidiary or to purchase
assets of the Company or any Subsidiary of the Company, which right of first
refusal or option is entered into in the ordinary course of business; and (xvi)
the Lien granted to the Trustee pursuant to the trust created pursuant to
ARTICLE 9 hereof and any substantially equivalent Lien granted to the respective
trustees under the indentures for other debt securities of the Company.
"Person" means any individual, corporation, partnership, joint venture,
incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
"Preferred Stock" means with respect to any Person all Capital Stock of
such Person which has a preference in liquidation or a preference with respect
to the payment of dividends or distributions of operating profit or cash.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A.
"Rating Agencies" means (i) S&P and Moody's or (ii) if S&P or Moody's
or both of them are not making ratings of the Notes publicly available, a
nationally recognized U.S. rating agency or agencies, as the case may be,
selected by the Company, which will be substituted for S&P or Moody's or both,
as the case may be.
12
<PAGE>
"Rating Category" means (i) with respect to S&P, any of the following
categories (any of which may include a "+" or "-"): AAA, AA, A, BBB, BB, B, CCC,
CC, C and D (or equivalent successor categories); (ii) with respect to Moody's,
any of the following categories (any of which may include a "1", "2" or "3"):
Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories);
and (iii) the equivalent of any such categories of S&P or Moody's used by
another Rating Agency, if applicable.
"Record Date" for interest payable on any Interest Payment Date (except
a date for payment of default interest) means the March 15 or September 15
(whether or not a Business Day), as the case may be, immediately preceding such
Interest Payment Date.
"Redemption Date" when used with respect to any Note to be redeemed
means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price" when used with respect to any Note to be redeemed
means the price fixed for such redemption pursuant to this Indenture or such
Note.
"Refinancing Indebtedness" means Indebtedness incurred in exchange for,
or the net proceeds of which are applied to refund, refinance or extend, any
Indebtedness; provided that: (i) the Refinancing Indebtedness is the obligation
of the same Person (or if the Indebtedness being refinanced is an obligation of
one or more Subsidiaries of the Company, such Refinancing Indebtedness may be
incurred by the Company or one or more Subsidiaries of the Company) and is
subordinated to the Notes, if at all, to the same extent as the Indebtedness
being refunded, refinanced or extended; (ii) the Refinancing Indebtedness is
scheduled to mature no earlier than the Indebtedness being refunded, refinanced
or extended; (iii) the Refinancing Indebtedness has a Weighted Average Life to
Maturity at the time such Refinancing Indebtedness is incurred that is equal to
or greater than the Weighted Average Life to Maturity of the portion of the
Indebtedness being refunded, refinanced or extended; (iv) the Refinancing
Indebtedness is secured only to the extent, if at all, and by the assets that
the Indebtedness being refunded, refinanced or extended is secured; and (v) such
Refinancing Indebtedness is in an aggregate principal amount that is equal to or
less than the aggregate principal amount then outstanding under the Indebtedness
being refunded, refinanced or extended (except for issuance costs and increases
in Attributable Indebtedness due solely to increases in the present value
calculations resulting from renewals or extensions of the terms of the
underlying leases in effect on the Issue Date).
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of September 28, 2001 among the Company and the Initial Purchasers.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Distribution Compliance Period" means, with respect to
any Note, the period of forty (40) consecutive days beginning on and including
the first day after the later of (i) the day on which such Note is first offered
to Persons other than distributors (as defined in Regulation S) in reliance on
Regulation S and (ii) the closing date of the offering of such Note.
"Restricted Payment" means with respect to any Person: (i) the
declaration of any dividend or the making of any other payment or distribution
of cash, securities or other property
13
<PAGE>
or assets in respect of such Person's Capital Stock (except that a dividend
payable solely in Capital Stock (other than Disqualified Stock) of such Person
shall not constitute a Restricted Payment); (ii) any payment on account of the
purchase, redemption, retirement or other acquisition for value of such Person's
or such Person's Subsidiaries' Capital Stock or any other payment or
distribution made in respect thereof, either directly or indirectly; (iii) any
payment on account of the purchase, redemption, retirement, defeasance or other
acquisition for value, prior to any scheduled principal payment, sinking fund
payment or Stated Maturity, of Subordinated Indebtedness of the Company or its
Subsidiaries; (iv) the incurrence, creation or assumption of any guarantee of
Indebtedness of any Affiliate (other than a Subsidiary of the Company); or (v)
the making of any Investment in any Person (other than Permitted Investments);
provided, however, that with respect to the Company and its Subsidiaries,
Restricted Payments shall not include any payment described in clause (i), (ii)
or (iii) above made (1) to the Company or any of its Wholly Owned Subsidiaries
by any of the Company's Subsidiaries or (2) by the Company to any of its Wholly
Owned Subsidiaries or (3) by any Subsidiary, provided that the Company or
another Subsidiary receives its proportionate share thereof.
"Restricted Security" means any Note (or beneficial interest therein)
other than an Exchange Note (or beneficial interest therein), until such time
as: (i) such Note (or beneficial interest therein) has been transferred pursuant
to an effective registration statement under the Securities Act; (ii) such Note
is a 144A Global Note and two years have passed since the Issue Date; (iii) such
Note is a Regulation S Global Note and the Regulation S Distribution Compliance
Period has expired; or (iv) the Private Placement Legend therefor has otherwise
been removed pursuant to SECTION 2.15(C) hereof or, in the case of a beneficial
interest in a Global Note, such beneficial interest has been exchanged for an
interest in a Global Note not bearing a Private Placement Legend.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"S&P" means Standard & Poor's Rating Services, a division of
McGraw-Hill Companies, Inc., and its successors.
"Sale and Leaseback Transaction" means, with respect to any Person, an
arrangement with any bank, insurance company or other lender or investor or to
which such lender or investor is a party, providing for the leasing by such
Person or any of its Subsidiaries of any property or asset of such Person or any
of its Subsidiaries which has been or is being sold or transferred by such
Person or such Subsidiary to such lender or investor or to any Person to whom
funds have been or are to be advanced by such lender or investor on the security
of such property or asset.
"Secretary's Certificate" means a certificate signed by the Secretary
or any Assistant Secretary of the Company in his or her official (and not
individual) capacity.
"Securities Act" means the Securities Act of 1933, as amended.
"Significant Subsidiary" means a Subsidiary of the Company which at the
time of determination either (i) had tangible assets which, as of the Company's
most
14
<PAGE>
recent quarterly consolidated balance sheet, constituted at least 5% of
Consolidated Tangible Assets as of such date, or (ii) had revenues for the
12-month period ending on the date of the Company's most recent quarterly
consolidated statement of income which constituted at least 5% of the Company's
total consolidated revenues for such period.
"Stated Maturity" when used with respect to any security or any
installment of interest thereon, means that date specified in such security as
the fixed date on which the principal of such security or such installment of
interest is due and payable.
"Subordinated Indebtedness" of any Person means any Indebtedness of
such Person that is subordinated in right of payment to the Notes.
"Subsidiary" of any Person means (i) any corporation of which Common
Equity having ordinary voting power to elect a majority of the directors of such
corporation is owned by such Person directly or through one or more other
Subsidiaries of such Person and (ii) any entity other than a corporation in
which such Person, directly or indirectly, owns at least 50% of the Common
Equity of such entity and has the authority to manage such entity on a
day-to-day basis.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
(15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this Indenture
(except as provided in SECTION 8.03 hereof).
"Trust Officer" shall mean, when used with respect to the Trustee, any
officer within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant treasurer, trust officer or any
other officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such Person's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"U.S. Government Obligations" means (a) securities that are direct
obligations of the United States of America for the payment of which its full
faith and credit are pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or a specific payment of principal or
interest on any such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness or portion thereof at any date, the number of years obtained by
dividing (i) the then outstanding
15
<PAGE>
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 1.02 Other Definitions. The definitions of the following terms
may be found in the sections indicated as follows:
<TABLE>
<CAPTION>
Term Defined in Section
---- ------------------
<S> <C>
"Accredited Investors"................................................... 2.01
--------------------
"Affiliate Transaction".................................................. 4.13
---------------------
"Agent Members".......................................................... 2.14
-------------
"Applicable Procedures".................................................. 2.15
---------------------
"Asset Sale Offer"....................................................... 4.12
----------------
"Asset Sale Payment Amount".............................................. 4.12
-------------------------
"Asset Sale Purchase Price".............................................. 4.12
-------------------------
"Bankruptcy Law"......................................................... 6.01
--------------
"Business Day"........................................................... 10.07
------------
"Change of Control Offer"................................................ 4.15
-----------------------
"Change of Control Payment Date"......................................... 4.15
------------------------------
"Change of Control Purchase Price"....................................... 4.15
--------------------------------
"Clearstream"............................................................ 2.01
-----------
"Covenant Defeasance".................................................... 9.03
-------------------
"Depositary"............................................................. 2.14
----------
"Euroclear".............................................................. 2.01
---------
"Event of Default"....................................................... 6.01
----------------
"Excess Proceeds"........................................................ 4.12
---------------
"Excess Proceeds Payment Date"........................................... 4.12
----------------------------
"Global Notes"........................................................... 2.01
------------
"Legal Defeasance"....................................................... 9.02
----------------
"Legal Holiday".......................................................... 10.07
-------------
"Make-Whole Premium"..................................................... Exhibit A/Exhibit B
------------------
"Net Proceeds Deficiency"................................................ 4.12
-----------------------
"Other Debt"............................................................. 4.12
----------
"Paying Agent"........................................................... 2.03
------------
"Private Placement Legend"............................................... 2.16
------------------------
"Registrar".............................................................. 2.03
---------
</TABLE>
16
<PAGE>
<TABLE>
<CAPTION>
Term Defined in Section
---- ------------------
<S> <C>
"Regulation S Global Note"............................................... 2.01
------------------------
"Restricted Global Note"................................................. 2.01
----------------------
"Successor".............................................................. 5.01
---------
</TABLE>
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the portion of such
provision required to be incorporated herein in order for this Indenture to be
qualified under the TIA is incorporated by reference in and made a part of this
Indenture. Unless otherwise specified, terms used in this Indenture that are
defined by the TIA, defined in the TIA by reference to another statute or
defined by Commission rule have the meanings therein assigned to them.
Section 1.04 Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it herein, whether
defined expressly or by reference;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) words used herein implying any gender shall apply to every
gender.
ARTICLE 2
THE NOTES
---------
Section 2.01 Dating; Incorporation of Form in Indenture; Form of Notes.
(a) Generally. The Initial Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A, and the Exchange Notes and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit B, each of which is incorporated in and made part of this Indenture with
such appropriate insertions, substitutions and other variations as are required
or permitted by this Indenture. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage all in a form
approved by the Company. Each Note shall be dated the date of its
authentication.
(b) Notes Sold Pursuant to Rule 144A. The Notes offered and
sold in their initial distribution in reliance on Rule 144A to Qualified
Institutional Buyers shall be issued in the form of a permanent global note (the
"Restricted Global Note") (which may be represented by more than one
certificate, if so required by the Depositary's rules regarding the maximum
principal amount to be represented by a single certificate), duly executed by
the Company and authenticated by the Trustee as hereinafter provided. Each
Restricted Global Note shall be
17
<PAGE>
registered in the name of the Depositary or its nominee and deposited with the
Trustee, at its Corporate Trust Office, as custodian for the Depositary on
behalf of the purchasers of the Notes represented thereby.
(c) Notes Sold Pursuant to Regulation S. The Notes offered and
sold in their initial distribution in reliance on Regulation S shall be issued
in the form of a permanent global note (the "Regulation S Global Note" and,
together with the Restricted Global Note, the "Global Notes") (which may be
represented by more than one certificate, if so required by the Depositary's
rules regarding the maximum principal amount to be represented by a single
certificate), duly executed by the Company and authenticated by the Trustee as
hereinafter provided. Each Regulation S Global Note shall be registered in the
name of the Depositary or its nominee and deposited with the Trustee, at its
Corporate Trust Office, as custodian for the Depositary for credit to the
respective accounts of The Euroclear System ("Euroclear") and Clearstream
Banking, societe anonyme ("Clearstream"). Prior to the termination of the
Regulation S Distribution Compliance Period, beneficial interests in a
Regulation S Global Note may be held only through Euroclear and Clearstream.
(d) Notes Sold to Institutional Accredited Investors. The
Notes offered and sold in their initial distribution in reliance on an exemption
from registration under the Securities Act (other than Rule 144A or Regulation
S) to institutional "accredited investors" (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act ("Accredited Investors")) shall be issued in
certificated, fully registered form without coupons and only in denominations of
$250,000 and integral multiples of $1,000 in excess thereof, duly executed by
the Company and authenticated by the Trustee as hereinafter provided.
Section 2.02 Execution and Authentication; Appointment of
Authenticating Agent. The Notes shall be executed on behalf of the Company by
one or more Officers of the Company. Such signature may be either manual or
facsimile.
If an Officer whose signature is on a Note no longer holds that office
at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until the Trustee manually signs the
certificate of authentication on the Note. Such signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
The Trustee shall authenticate (i) Initial 2006 Notes for original
issue on the Issue Date in the aggregate principal amount not to exceed
$200,000,000, (ii) Initial 2011 Notes for original issue on the Issue Date in
the aggregate principal amount not to exceed $400,000,000, (iii) pursuant to the
Exchange Offer, Exchange Notes from time to time for issue only in exchange for
a like principal amount of Initial 2006 Notes and Initial 2011 Notes and (iv)
any other Notes that have been executed by the Company in order to effect any
transfer or exchange in accordance with the provisions of SECTION 2.15.
Except as provided in SECTION 2.01(D), the Notes shall be issuable only
in definitive, fully registered form without coupons and only in minimum
denominations of $1,000 and integral multiples thereof.
18
<PAGE>
The Trustee, with the approval of the Company, may appoint an
authenticating agent to authenticate Notes. Any such appointment shall be
evidenced by an instrument signed by an authorized officer of the Trustee, a
copy of which shall be furnished to the Company. An authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent, and shall comply with this Indenture. An authenticating agent has the
same right as an Agent to deal with the Company or an Affiliate.
Section 2.03 Registrar and Paying Agent. The Company shall maintain an
office or agency in the Borough of Manhattan, The City of New York where (a)
Notes may be presented or surrendered for registration of transfer or for
exchange ("Registrar"), (b) Notes may be presented or surrendered for payment
("Paying Agent") and (c) notices and demands in respect of Notes and this
Indenture may be served. The Registrar shall keep a register of the Notes and of
their transfer and exchange. The Registrar shall provide the Company a current
copy of such register from time to time upon request of the Company. The Company
may have one or more co-Registrars and one or more additional Paying Agents. The
Company may change any Paying Agent, Registrar or co-Registrar without notice to
any Holder. The Company may not act as Paying Agent, but may act as Registrar or
co-Registrar.
The Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture, which shall incorporate
the provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee in
writing of the name and address of any such Agent. If the Company fails to
maintain a Registrar or Paying Agent, or agent for service of notices and
demands, or fails to give the foregoing notice, the Company shall notify the
Trustee and the Trustee shall to the extent that it is capable act as such for
so long as such failure continues.
The Company initially appoints the Trustee as Registrar and Paying
Agent in the Borough of Manhattan, The City of New York.
Section 2.04 Paying Agent To Hold Money in Trust. Before 10:00 A.M. New
York City time on each payment date of the principal of and/or interest on any
Notes, the Company shall deposit with the Paying Agent a sum sufficient to pay
such principal and interest so becoming due. The Company at any time may require
a Paying Agent to pay all money held by it to the Trustee together with a
complete accounting of such sums, and the Trustee may at any time during the
continuance of any Event of Default under Section 6.01(a) or (b) hereof, upon
written request to a Paying Agent, require such Paying Agent to forthwith pay to
the Trustee all sums so held in trust by such Paying Agent together with a
complete accounting of such sums. Upon doing so, the Paying Agent shall have no
further liability for the money. Funds deposited with the Paying Agent may be
invested as agreed from time to time by the Company and the Paying Agent. All
payments made hereunder shall be in U.S. legal tender.
Section 2.05 Holder Lists. The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders. If the Trustee is not the Registrar, the Company
shall furnish to the Trustee at least five Business Days before each Interest
Payment Date and the Stated Maturity and at such other times as the
19
<PAGE>
Trustee may reasonably request in writing, a list in such form and as of such
date as the Trustee may require of the names and addresses of Holders.
Section 2.06 Replacement Notes. If a mutilated Note is surrendered to
the Trustee or if the Holder of a Note claims that a Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Note if the Trustee's requirements for replacement
are met. An indemnity bond may be required by the Company or the Trustee that is
sufficient in the judgment of the Company and the Trustee to protect the
Company, the Trustee or any Agent from any loss which any of them may suffer if
a Note is replaced and evidence to their satisfaction of apparent loss,
destruction or theft of such Note may be required by the Company, the Trustee or
any Agent. The Company and the Trustee may charge for their reasonable
out-of-pocket expenses (including reasonable attorneys' fees and expenses and
any applicable taxes) in replacing a Note pursuant to this SECTION 2.06. In the
event any such mutilated, lost, destroyed or wrongfully taken Note has become
due and payable, the Company in its discretion may pay such Note instead of
issuing a new Note in replacement thereof. If after the delivery of such new
Note, a bona fide purchaser of the original Note in lieu of which such new Note
was issued presents for payment such original Note, the Company and the Trustee
shall be entitled to recover such new Note from the person to whom it was
delivered or any transferee thereof, except a bona fide purchaser, and shall be
entitled to recover upon the security or indemnity provided therefor to the
extent of any loss, damage, cost or expense incurred by the Company or the
Trustee in connection therewith.
Every replacement Note is an additional obligation of the Company.
Section 2.07 Outstanding Notes. Notes outstanding at any time are all
Notes authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation and those described in this SECTION 2.07 as not
outstanding.
A Note replaced pursuant to SECTION 2.06 hereof (other than a mutilated
Note surrendered for replacement) ceases to be outstanding unless and until the
Trustee receives proof satisfactory to it that such replaced Note is held by a
protected purchaser.
If a Paying Agent holds on a Redemption Date or at Stated Maturity U.S.
legal tender sufficient to pay the principal of, premium, if any, and accrued
interest on Notes (or portions thereof) payable on that date, then on and after
that date, such Notes (or portions thereof) cease to be outstanding and interest
on them ceases to accrue.
Section 2.08 Treasury Notes. In determining whether the Holders of the
required principal amount of Notes have concurred in any direction, waiver,
consent or notice, Notes owned by the Company or any of its Affiliates shall be
considered as though they are not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes which a Trust Officer of the Trustee
actually knows are so owned shall be so considered. The Company shall notify the
Trustee, in writing, when it or any of its Affiliates repurchases or otherwise
acquires Notes and of the aggregate principal amount of such Notes so
repurchased or otherwise acquired.
20
<PAGE>
Section 2.09 Temporary Notes. Until definitive Notes are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Notes. Temporary Notes shall be substantially in the form, and shall carry all
rights and restrictions, of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate definitive Notes in
exchange for temporary Notes upon surrender of such temporary Notes at the
office or agency maintained pursuant to SECTION 2.03 hereof.
Section 2.10 Cancellation. The Company at any time may deliver Notes to
the Trustee for cancellation. The Registrar and the Paying Agent shall forward
to the Trustee any Notes surrendered to them for transfer, exchange or payment.
The Trustee shall cancel all Notes surrendered for transfer, exchange, payment
or cancellation and, unless the Company instructs the Trustee in writing to
deliver the Notes to the Company, shall dispose of such Notes in accordance with
its normal practice. Subject to SECTION 2.06 hereof, the Company may not issue
new Notes to replace Notes in respect of which it has previously paid all
principal, premium, if any, and interest accrued thereon, or delivered to the
Trustee for cancellation. The Trustee shall provide the Company with a list of
all Notes that have been canceled from time to time as requested in writing by
the Company. If the Company shall acquire any of the Notes, such acquisition
shall not operate as a redemption or satisfaction of the Indebtedness
represented by such Notes unless and until the same are surrendered to the
Trustee for cancellation pursuant to this SECTION 2.10.
Section 2.11 Defaulted Interest. If the Company defaults in a payment
of principal or interest on Notes of a particular maturity, it shall pay
interest on overdue principal and on overdue installments of interest (without
regard to any applicable grace periods) from time to time on demand at the rate
per annum borne by the applicable Notes, to the extent lawful.
If the Company defaults in a payment of interest on Notes of a
particular maturity, it shall pay the defaulted interest, plus (to the extent
lawful) any interest payable on the defaulted interest, to the Persons who are
Holders of such Notes on a subsequent special Record Date, which date shall be
the fifteenth day next preceding the date fixed by the Company for the payment
of defaulted interest or the next succeeding Business Day if such date is not a
Business Day. At least 15 days before the subsequent special Record Date, the
Company shall mail to each Holder, as of a recent date selected by the Company,
with a copy to the Trustee, a notice that states the subsequent special Record
Date, the payment date and the amount of defaulted interest, and interest
payable on such defaulted interest, if any, to be paid.
Notwithstanding the foregoing, any interest which is paid prior to the
expiration of the 30-day period set forth in SECTION 6.01(A) hereof shall be
paid to Holders as of the Record Date for the Interest Payment Date for which
interest has not been paid.
Section 2.12 Deposit of Moneys; Payments. Prior to 10:00 A.M., New York
City time, on the relevant Interest Payment Date, Stated Maturity, Redemption
Date, Change of Control Purchase Date and Excess Proceeds Payment Date, the
Company shall have deposited with the Paying Agent in immediately available
funds money sufficient to make all cash payments due on such Interest Payment
Date, Stated Maturity, Redemption Date, Change of Control Purchase Date and
Excess Proceeds Payment Date, as the case may be (or if any such
21
<PAGE>
date is not a Business Day, the first preceding Business Day). The principal and
interest on Global Notes shall be payable to the Depositary or its nominee, as
the case may be, as the sole registered owner and the sole holder of the Global
Notes represented thereby. The principal and interest on Certificated Notes, if
any, shall be payable at the office of the Paying Agents. The Paying Agents
shall pay the Company any excess cash remaining on deposit after all payments
have been made with respect to a given Interest Payment Date, Stated Maturity,
Redemption Date, Change of Control Purchase Date or Excess Proceeds Payment
Date, as the case may be. All payments made hereunder shall be in U.S. legal
tender.
Section 2.13 "CUSIP" Number. The Company in issuing the Notes may use
"CUSIP" number(s) and the Trustee shall use the "CUSIP" numbers(s) in notices of
redemption or exchange as a convenience to Holders; provided that neither the
Company nor the Trustee shall have any responsibility for any defect in the
"CUSIP" number that appears on any Note, check, advice or payment or redemption
notice, and any such notice may state that no representation is made as to the
correctness or accuracy of the "CUSIP" number(s) printed in the notice or on the
Notes, and that reliance may be placed only on the other identification numbers
printed on the Notes and any such redemption or exchange shall not be affected
by any defect in or omission of such number(s). The Company shall promptly
notify the Trustee of any changes in "CUSIP" numbers.
Section 2.14 Depositary. (a) The Company hereby appoints DTC to act as
depositary (in such capacity, together with its successors in such capacity, the
"Depositary") with respect to the Global Notes. The Trustee shall act as
custodian of the Global Notes for the Depositary. So long as the Depositary or
its nominee, Cede & Co., is the registered owner of the Global Notes, it shall
be considered the Holder of the Notes represented thereby for all purposes
hereunder and under the Global Notes, and neither any members of, or
participants in, the Depositary ("Agent Members") nor any other Persons on whose
behalf Agent Members may act shall have any rights hereunder with respect to the
Global Notes or under the Global Notes. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or its nominee, as the case may be, or
impair, as between the Depositary, its Agent Members and any other Person on
whose behalf an Agent Member may act, the operation of customary practices of
such Persons governing the exercise of the rights of a Holder of any Note.
(b) The Company may remove or replace DTC or any successor as
Depositary for any reason upon thirty (30) days' notice to DTC or such
successor. The Holders shall have no right to a depositary for the Notes.
(c) Notwithstanding any other provision of this Indenture or
the Notes, so long as DTC or its nominee is the registered owner of the Notes:
(i) the provisions of the DTC Letter of Representations
shall control over the provisions of this Indenture with respect to the
matters covered thereby;
22
<PAGE>
(ii) presentation of Notes to the Trustee at redemption
or at maturity shall be deemed made to the Trustee when the right to
exercise ownership rights in the Notes through DTC or Agent Members is
transferred by DTC on its books; and
(iii) DTC may present notices, approvals, waivers or other
communications required or permitted to be made by Holders under this
Indenture on a fractionalized basis on behalf of some or all of those
Persons entitled to exercise ownership rights in the Notes through DTC
or Agent Members.
Section 2.15 Registration of Transfers and Exchanges. (a) Transfer and
Exchange Generally. (i) The Notes are transferable only upon the surrender
thereof for registration of transfer. When a Note is presented to the Registrar
with a duly executed instrument of assignment and transfer substantially in the
form of assignment attached to Exhibit A or B, as applicable, the Registrar
shall register the transfer as requested if such transfer complies with the
provisions hereof. Prior to the due presentation for registration of transfer of
any Note, the Person in whose name such Note is registered shall be treated as
the absolute owner of such Note for the purpose of receiving payment of
principal of, premium (if any) and interest on such Note (whether or not such
payment is overdue) and for all other purposes whatsoever, notwithstanding any
notice to the contrary. Registration of transfer of any Note by the Registrar
shall be deemed to be an acknowledgment of such transfer by the Company.
(ii) When Notes are presented to the Registrar with a
written request to exchange such Notes for Notes of any authorized
denominations and of a like aggregate principal amount, the Registrar
shall make the exchange as requested if such exchange complies with the
provisions of this SECTION 2.15(A).
(iii) Following any request for transfer or exchange of
one or more Notes made in compliance with clauses (i) or (ii), as the
case may be, of this SECTION 2.15(A), the Company shall execute, and
the Trustee shall authenticate and deliver, one or more new Notes of
the same maturity, of a like principal amount and in such authorized
denominations as may be requested. Any exchange or transfer shall be
without charge, except that the Company may require payment by the
Holder of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation to a transfer or exchange other
than any exchange pursuant to SECTION 2.09, 3.06, 4.12, 4.15 or 8.05
hereof.
(iv) Transfers or exchanges of the Global Notes and
beneficial interests therein shall be subject to the provisions of
SECTION 2.15(B) and the rules of the Depositary. Transfers or exchanges
of Certificated Notes shall be subject to the provisions of SECTION
2.15(C).
(v) Except as otherwise provided herein, the Global
Notes and each Certificated Note shall bear the Private Placement
Legend as set forth in SECTION 2.16. By its acceptance of any Note
bearing the Private Placement Legend, whether upon original issuance or
subsequent transfer, each Holder of such a Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and
in the Private Placement Legend and agrees that it will transfer such
Note only as provided in this
23
<PAGE>
Indenture. Upon the specific written request of a Holder to remove the
Private Placement Legend, the Registrar shall authenticate and deliver
a Note of the same maturity and with an equivalent principal amount not
bearing the Private Placement Legend if there is provided to the
Company evidence reasonably satisfactory to the Company (which may, at
the Company's request, include an Opinion of Counsel) that neither the
Private Placement Legend nor the restrictions on transfer set forth
therein are required to ensure compliance with the Securities Act. Upon
a written request for the registration of transfer or exchange of a
Note bearing the Private Placement Legend pursuant to an effective
registration statement under the Securities Act and in accordance with
any applicable securities laws of any state of the United States, the
Registrar shall authenticate and deliver a Note of the same maturity
and with an equivalent principal amount not bearing the Private
Placement Legend. If the Private Placement Legend has been removed from
a Note as provided in this clause (v), the transfer of such Note shall
not be subject to the restrictions on transfer set forth in the Private
Placement Legend, and no other Note issued in exchange for all or any
part of such Note shall bear the Private Placement Legend unless the
Company has reasonable cause to believe that such other Note is a
Restricted Security and instructs the Registrar in writing to cause the
Private Placement Legend to appear thereon.
(vi) None of the Company or the Trustee or the Registrar
shall be liable for any delay by the Depositary in identifying the
beneficial owners of the Notes, and each such Person may conclusively
rely on, and shall be protected in relying on, instructions from the
Depositary for all purposes (including with respect to the registration
and delivery, and the respective principal amounts, of any Notes to be
issued).
(vii) Prior to the due presentation for registration of
transfer of any Note, the Company, the Trustee, the Paying Agent, the
Registrar or any co-Registrar may deem and treat the Person in whose
name a Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of, premium, if any, and
interest, if any, on such Note and for all other purposes whatsoever,
whether or not such Note is overdue, and none of the Company, the
Trustee, the Paying Agent, the Registrar or any co-Registrar shall be
affected by notice to the contrary. So long as the Depositary or its
nominee is the Holder of a Global Note, the Depositary or such nominee,
as the case may be, will be considered the sole owner or Holder of the
Notes represented by such Global Note for all purposes hereunder and
under the Notes. Any Holder of a Global Note, and each Person with an
interest in such Global Note, shall, by acceptance of such Global Note
or such interest, agree that transfers of the beneficial interests in
such Global Note may be effected only through a book-entry system
maintained by the Holder of such Global Note (or its agent) and that
ownership of a beneficial interest in such Global Note shall be
required to be reflected in a book entry.
(viii) Any Note issued upon any transfer or exchange
pursuant to this SECTION 2.15 will evidence the same debt and will be
entitled to the same benefits and, unless otherwise provided for in
this Indenture, subject to the same restrictions under this Indenture
as the Note or Notes surrendered upon such transfer or exchange.
24
<PAGE>
(ix) The Registrar shall not be required to register the
transfer of or exchange any Note (A) selected for redemption in whole
or in part pursuant to ARTICLE 3, except the unredeemed portion of any
Note being redeemed in part, (B) for a period beginning fifteen (15)
days before the mailing of a notice of redemption of Notes and ending
on the date of such mailing or (C) between a Record Date and the next
succeeding Interest Payment Date.
(b) Transfers and Exchanges of the Global Notes and Beneficial
Interests Therein. (i) Subject to clauses (ii) through (viii) of this SECTION
2.15(B), transfers of Global Notes shall be limited to transfers in whole, but
not in part, to the Depositary, its successors or their respective nominees. So
long as the Global Notes remain outstanding and are held by or on behalf of the
Depositary, transfers and exchanges of beneficial interests in the Global Notes
shall be made in accordance with the provisions of this SECTION 2.15(B) and in
accordance with the rules and procedures of the Depositary to the extent
applicable (the "Applicable Procedures").
(ii) No restrictions shall apply with respect to the
transfer or registration of transfer of (x) a beneficial interest in a
Restricted Global Note to a transferee that takes delivery in the form
of a beneficial interest in such Restricted Global Note or (y) a
beneficial interest in a Regulation S Global Note to a transferee that
takes delivery in the form of a beneficial interest in such Regulation
S Global Note; provided that any transfer described in this clause (ii)
shall be made in accordance with the Applicable Procedures.
(iii) Any transfer of a beneficial interest in a
Restricted Global Note to a transferee that will take delivery in the
form of a beneficial interest in the applicable Regulation S Global
Note prior to the termination of the Regulation S Distribution
Compliance Period shall be registered, subject to the Applicable
Procedures, only in accordance with this clause (iii). At any time
prior to the termination of the Regulation S Distribution Compliance
Period, upon (x) receipt by the Registrar of (A) instructions given in
accordance with the Applicable Procedures from the Depositary or its
nominee on behalf of an owner of a beneficial interest in the
Restricted Global Note to transfer such beneficial interest to a Person
that will take delivery in the form of a beneficial interest in the
applicable Regulation S Global Note, (B) a written order of the
Depositary or its nominee given in accordance with the Applicable
Procedures containing account and other information with respect to
such transfer and (C) a certificate of the transferor of the beneficial
interest in such Restricted Global Note substantially in the form of
Exhibit D and (y) satisfaction of all other applicable conditions
imposed by this Indenture and the Applicable Procedures, the Registrar
shall (1) reflect in the register for the applicable Notes a decrease
in the principal amount of the applicable Restricted Global Note and an
increase in the principal amount of the applicable Regulation S Global
Note, each such adjustment to be equal to the beneficial interest
transferred pursuant to this clause (iii) and (2) instruct the
Depositary to make the corresponding adjustment to its records and
debit the account of the appropriate Agent Members in accordance with
the Applicable Procedures.
(iv) Any transfer of a beneficial interest in a
Restricted Global Note to a transferee that will take delivery in the
form of a beneficial interest in the applicable Regulation S Global
Note subsequent to the termination of the Regulation S Distribution
25
<PAGE>
Compliance Period shall be registered, subject to the Applicable
Procedures, only in accordance with this clause (iv). At any time
subsequent to the termination of the Regulation S Distribution
Compliance Period, upon (x) receipt by the Registrar of (A)
instructions given in accordance with the Applicable Procedures from
the Depositary or its nominee on behalf of an owner of a beneficial
interest in a Restricted Global Note to transfer such beneficial
interest to a Person that will take delivery in the form of a
beneficial interest in the applicable Regulation S Global Note, (B) a
written order of the Depositary or its nominee given in accordance with
the Applicable Procedures containing account and other information with
respect to such transfer and (C) a certificate of the transferor of the
beneficial interest in such Restricted Global Note substantially in the
form of Exhibit D (if transfer is made in reliance on Regulation S) or
Exhibit E (if transfer is made in reliance on Rule 144) and (y)
satisfaction of all other conditions imposed by the Applicable
Procedures, the Registrar shall (1) reflect in the register for the
applicable Notes a decrease in the principal amount of such Restricted
Global Note and an increase in the principal amount of the applicable
Regulation S Global Note, each such adjustment to equal the principal
amount of the beneficial interest transferred pursuant to this clause
(iv), and (2) instruct the Depositary to make the corresponding
adjustment to its records and debit and credit the accounts of the
appropriate Agent Members in accordance with the Applicable Procedures.
(v) Any transfer of a beneficial interest in a
Regulation S Global Note to a transferee that will take delivery in the
form of a beneficial interest in the applicable Restricted Global Note,
either prior or subsequent to the termination of the Regulation S
Distribution Compliance Period, shall be registered, subject to the
Applicable Procedures, only in accordance with this clause (v). At any
time upon (x) receipt by the Registrar of (A) instructions given in
accordance with the Applicable Procedures from the Depositary or its
nominee on behalf of an owner of a beneficial interest in a Regulation
S Global Note to transfer such beneficial interest to a Person that
will take delivery in the form of a beneficial interest in the
applicable Restricted Global Note, (B) a written order of the
Depositary or its nominee given in accordance with the Applicable
Procedures containing account and other information with respect to
such transfer and (C) a certificate of the transferor of the beneficial
interest in such Regulation S Global Note substantially in the form of
Exhibit C and (y) satisfaction of all other conditions imposed by the
Applicable Procedures, the Registrar shall (1) reflect in the register
for the applicable Notes a decrease in the principal amount of such
Regulation S Global Note and an increase in the principal amount of the
applicable Restricted Global Note, each such adjustment to equal the
principal amount of the beneficial interest transferred pursuant to
this clause (v), and (2) instruct the Depositary to make the
corresponding adjustment to its records and debit and credit the
accounts of the appropriate Agent Members in accordance with the
Applicable Procedures.
(vi) Any transfer of a beneficial interest in a
Restricted Global Note to a transferee that will take delivery in the
form of one or more Certificated Notes shall be registered, subject to
the Applicable Procedures, only in accordance with this clause (vi). At
any time upon (x) receipt by the Registrar of (A) instructions given in
accordance with the Applicable Procedures from the Depositary or its
nominee on behalf of an owner of a beneficial interest in such
Restricted Global Note to transfer such beneficial interest to a
26
<PAGE>
Person that will take delivery in the form of one or more Certificated
Notes, (B) a written order of the Depositary or its nominee given in
accordance with the Applicable Procedures containing account and other
information with respect to such transfer, (C) a certificate of such
Person substantially in the form of Exhibit F and (D) unless such
Restricted Global Note does not bear a Private Placement Legend, an
Opinion of Counsel to the effect that such transfer is in compliance
with the Securities Act, and (y) satisfaction of all other applicable
conditions imposed by this Indenture and the Applicable Procedures, (1)
the Registrar shall (A) reflect in the register for the applicable
Notes a decrease in the principal amount of such Restricted Global Note
in an amount equal to the beneficial interest transferred pursuant to
this clause (vi) and (B) instruct the Depositary to make the
corresponding adjustment to its records and debit the account of the
appropriate Agent Member in accordance with the Applicable Procedures,
and (2) the Company shall execute and the Trustee shall authenticate
and deliver to or on behalf of such Person one or more Certificated
Notes of like tenor and amount and, unless such Restricted Global Note
does not bear a Private Placement Legend, bearing the Private Placement
Legend.
(vii) Any transfer of a beneficial interest in a
Regulation S Global Note to a transferee that will take delivery in the
form of one or more Certificated Notes prior to the termination of the
Regulation S Distribution Compliance Period shall be registered,
subject to the Applicable Procedures, only in accordance with this
clause (vii). At any time prior to the termination of the Regulation S
Distribution Compliance Period, upon (x) receipt by the Registrar of
(A) instructions given in accordance with the Applicable Procedures
from the Depositary or its nominee on behalf of an owner of a
beneficial interest in such Regulation S Global Note to transfer such
beneficial interest to a Person that will take delivery in the form of
one or more Certificated Notes, (B) a written order of the Depositary
or its nominee given in accordance with the Applicable Procedures
containing account and other information with respect to such transfer,
(C) a certificate of such Person substantially in the form of Exhibit F
and (D) an Opinion of Counsel to the effect that such transfer is in
compliance with the Securities Act and (y) satisfaction of all other
conditions imposed by the Applicable Procedures, (1) the Registrar
shall (A) reflect in the register for the applicable Notes a decrease
in the principal amount of such Regulation S Global Note in an amount
equal to the beneficial interest transferred pursuant to this clause
(vii) and (B) instruct the Depositary to make the corresponding
adjustment to its records and debit the account of the appropriate
Agent Member in accordance with the Applicable Procedures, and (2) the
Company shall execute and the Trustee shall authenticate and deliver to
or on behalf of such Person one or more Certificated Notes of like
tenor and amount bearing the Private Placement Legend.
(viii) Notwithstanding any contrary provision contained
herein, Certificated Notes shall be issued in exchange for the
beneficial interests in a Global Note if at any time: (x) the Company
advises the Trustee in writing that the Depositary is unwilling or
unable to continue as depositary for such Global Note or is no longer
eligible to act as such and in each case a successor depositary is not
appointed by the Company within ninety (90) days of receipt by the
Company of notice of such inability; (y) the Company, at its option,
elects to terminate the book-entry system through the Depositary with
respect to such Global Note; or (z) after the occurrence of an Event of
Default, beneficial
27
<PAGE>
owners holding interests representing a majority of the aggregate
principal amount of Notes represented by such Global Note advise the
Trustee in writing through the Depositary that the continuation of a
book-entry system through the Depositary is no longer in such
beneficial owners' best interests. Upon the occurrence of any of the
events set forth in clauses (x), (y) and (z) immediately above, the
Trustee, upon receipt of written notice thereof and a list of all
Persons that hold a beneficial interest in such Global Note, shall
notify, through the appropriate Agent Members at the expense of the
Company, all Persons that hold a beneficial interest in such Global
Note, of the issuance of Certificated Notes. Upon surrender by the
Trustee, as custodian for the Depositary, of such Global Note and
receipt from the Depositary of instructions for re-registration, the
Company shall execute and the Trustee, upon the written instructions of
the Company, shall authenticate and deliver Certificated Notes of like
tenor and amount and, unless such Global Note does not bear a Private
Placement Legend, bearing the Private Placement Legend. Certificated
Notes issued in exchange for beneficial interests in such Global Note
pursuant to this clause (viii) shall be registered in such names and in
such authorized denominations as the Depositary, pursuant to
instructions from Agent Members or otherwise, shall instruct the
Trustee.
(c) Transfers and Exchanges of Certificated Notes. (i) Any
transfer of a Certificated Note bearing the Private Placement Legend to a
transferee that takes delivery in the form of one or more Certificated Notes
shall be registered only in accordance with this clause (i). Upon (x) surrender
of any Certificated Note bearing the Private Placement Legend at the office of
the Registrar, together with (A) an executed instrument of assignment of such
Certificated Note substantially in the form of assignment attached to such
Certificated Note, (B) a certificate of the transferee of such Certificated Note
substantially in the form of Exhibit F and (C) an Opinion of Counsel to the
effect that such transfer is in compliance with the Securities Act and (y)
satisfaction of all other applicable conditions imposed by this Indenture, (1)
the Trustee shall register such transfer and (2) the Company shall execute and
the Trustee shall authenticate and deliver in the name of the transferee one or
more C