Table of Contents
As filed with the Securities and Exchange Commission on May 6, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
COMMUNITY HEALTH SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 8062 | 13-3893191 | ||
| (State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
CHS/COMMUNITY HEALTH SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 8062 | 76-0137985 | ||
| (State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
SEE TABLE OF ADDITIONAL REGISTRANTS
4000 Meridian Boulevard
Franklin, Tennessee 37067
(615) 465-7000
(Address, including zip code, and telephone number, including area code, of registrants’ principal executive offices)
Rachel A. Seifert
Community Health Systems, Inc.
Executive Vice President, Secretary and General Counsel
4000 Meridian Boulevard
Franklin, Tennessee 37067
(615) 465-7000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Leigh Walton
Kevin H. Douglas
Bass, Berry & Sims PLC
150 Third Avenue South, Suite 2800
Nashville, Tennessee 37201
(615) 742-6200
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. x
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer | x | Accelerated filer | ¨ | |||
| Non-accelerated filer | ¨ (do not check if a smaller reporting company) | Smaller reporting company | ¨ | |||
CALCULATION OF REGISTRATION FEE
|
| ||||||||
| Title of Each Class of Securities to be Registered |
Amount to be Registered (1) |
Proposed Maximum Offering Price Per Unit (1) |
Proposed Maximum Offering Price (1) |
Amount of Registration Fee (2) | ||||
| Debt Securities of Community Health Systems, Inc. (3) |
||||||||
| Guarantees of Debt Securities of Community Health Systems, Inc. by certain subsidiaries of Community Health Systems, Inc. (3)(4) |
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| Preferred Stock, par value $0.01 per share of Community Health Systems, Inc. (3) |
||||||||
| Depositary Shares of Community Health Systems, Inc. (3)(5) |
||||||||
| Common Stock, par value $0.01 per share of Community Health Systems, Inc. (3) |
||||||||
| Securities Warrants of Community Health Systems, Inc. (3) |
||||||||
| Debt Securities of CHS/Community Health Systems, Inc. (3) |
||||||||
| Guarantees of Debt Securities of CHS/Community Health Systems, Inc. by Community Health Systems, Inc. and certain subsidiaries of Community Health Systems, Inc. (3)(4) |
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| (1) | We will determine these amounts from time to time in connection with issuances of securities registered under this registration statement. |
| (2) | In accordance with Rules 456(b) and 457(r) under the Securities Act, we are deferring payment of all of the registration fee and will pay the registration fee subsequently in advance or on a “pay-as-you-go basis.” |
| (3) | An indeterminate aggregate initial offering price or number of the securities of each identified class is being registered as may from time to time be offered at indeterminate prices. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities or that are issued in units or represented by depositary shares. Includes an indeterminate amount of our securities as may be issued upon conversion of or exchange for, as the case may be, any other securities registered under this registration statement. |
| (4) | No additional consideration will be received for the guarantees and, pursuant to Rule 457(n), no additional fee is required. |
| (5) | Each depositary share registered hereunder will be issued under a deposit agreement and will represent an interest in a fractional share or multiple shares of preferred stock and will be evidenced by a depositary receipt. |
Table of Contents
Table of Additional Registrants
| Exact Name of Additional Registrants |
Jurisdiction of Incorporation or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Abilene Hospital, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 46-0496920 | ||||
| Abilene Merger, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 46-0496918 | ||||
| Affinity Health Systems, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-3391769 | ||||
| Affinity Hospital, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-3391873 | ||||
| Amory HMA, LLC |
MS | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-3750001 | ||||
| Anna Hospital Corporation |
IL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 36-4431843 | ||||
| Anniston HMA, LLC |
AL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 72-1346819 | ||||
| Bartow HMA, LLC |
FL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-1888382 | ||||
| Berwick Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 23-2975836 | ||||
| Big Bend Hospital Corporation |
TX | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 75-2717545 | ||||
| Big Spring Hospital Corporation |
TX | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 75-2574581 | ||||
| Biloxi H.M.A., LLC |
MS | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 59-2754033 | ||||
| Birmingham Holdings II, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-2784086 | ||||
| Birmingham Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-3320362 | ||||
| Blackwell HMA, LLC |
OK | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 36-4720244 | ||||
| Blue Island Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 45-4082512 | ||||
| Blue Island Illinois Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 61-1667279 | ||||
| Bluefield Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 27-2372042 | ||||
| Bluefield Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 27-2372291 | ||||
| Bluffton Health System LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1792272 | ||||
Table of Contents
| Exact Name of Additional Registrants |
Jurisdiction of Incorporation or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Brandon HMA, LLC |
MS | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 64-0885458 | ||||
| Brevard HMA Holdings, LLC |
FL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 27-3137706 | ||||
| Brevard HMA Hospitals, LLC |
FL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 27-3141947 | ||||
| Brownwood Hospital, L.P. |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762521 | ||||
| Brownwood Medical Center, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762523 | ||||
| Bullhead City Hospital Corporation |
AZ | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 86-0982071 | ||||
| Bullhead City Hospital Investment Corporation |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-1577204 | ||||
| Campbell County HMA, LLC |
TN | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 45-2528273 | ||||
| Carlisle HMA, LLC |
PA | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 25-1887146 | ||||
| Carlsbad Medical Center, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762526 | ||||
| Carolinas JV Holdings General, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-2227746 | ||||
| Carolinas JV Holdings, L.P. |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-2227809 | ||||
| Central Florida HMA Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-3964329 | ||||
| Central States HMA Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-3964397 | ||||
| Centre Hospital Corporation |
AL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-4370931 | ||||
| Chester HMA, LLC |
SC | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-1231400 | ||||
| CHHS Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-2189938 | ||||
| CHS Kentucky Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-1639057 | ||||
| CHS Pennsylvania Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-1639170 | ||||
| CHS Virginia Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-1639119 | ||||
Table of Contents
| Exact Name of Additional Registrants |
Jurisdiction of Incorporation or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| CHS Washington Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-3272205 | ||||
| Citrus HMA, LLC |
FL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-0195256 | ||||
| Clarksdale HMA, LLC |
MS | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 64-0869163 | ||||
| Clarksville Holdings II, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 45-5498575 | ||||
| Clarksville Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-3320418 | ||||
| Cleveland Hospital Corporation |
TN | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1587878 | ||||
| Cleveland Tennessee Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1281627 | ||||
| Clinton HMA, LLC |
OK | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 37-1659366 | ||||
| Clinton Hospital Corporation |
PA | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 90-0003715 | ||||
| Coatesville Hospital Corporation |
PA | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 23-3069798 | ||||
| Cocke County HMA, LLC |
TN | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 45-2528314 | ||||
| College Station Hospital, L.P. |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762360 | ||||
| College Station Medical Center, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762359 | ||||
| College Station Merger, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1771861 | ||||
| Community GP Corp. |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1648466 | ||||
| Community Health Investment Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 76-0152801 | ||||
| Community LP Corp. |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1648206 | ||||
| CP Hospital GP, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-3904557 | ||||
| CPLP, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-3904614 | ||||
| Crestwood Hospital, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1769644 | ||||
| Crestwood Hospital LP, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762369 | ||||
Table of Contents
| Exact Name of Additional Registrants |
Jurisdiction of Incorporation or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| CSMC, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762362 | ||||
| CSRA Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-5111915 | ||||
| Deaconess Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 47-0890490 | ||||
| Deaconess Hospital Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-2401268 | ||||
| Deming Hospital Corporation |
NM | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 85-0438008 | ||||
| Desert Hospital Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-8111921 | ||||
| Detar Hospital, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1754943 | ||||
| DHFW Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-2817294 | ||||
| DHSC, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-2871473 | ||||
| Dukes Health System, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 52-2379885 | ||||
| Dyersburg Hospital Corporation |
TN | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 42-1557536 | ||||
| Emporia Hospital Corporation |
VA | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 54-1924866 | ||||
| Evanston Hospital Corporation |
WY | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 83-0327475 | ||||
| Fallbrook Hospital Corporation |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 91-1918215 | ||||
| Florida HMA Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-3964255 | ||||
| Foley Hospital Corporation |
AL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1811413 | ||||
| Forrest City Arkansas Hospital Company, LLC |
AR | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-4217095 | ||||
| Forrest City Hospital Corporation |
AR | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-4216978 | ||||
| Fort Payne Hospital Corporation |
AL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-4370870 | ||||
| Fort Smith HMA, LLC |
AR | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 27-1013889 | ||||
Table of Contents
| Exact Name of Additional Registrants |
Jurisdiction of Incorporation or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Frankfort Health Partner, Inc. |
IN | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 35-2009540 | ||||
| Franklin Hospital Corporation |
VA | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 52-2200240 | ||||
| Gadsden Regional Medical Center, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 63-1102774 | ||||
| Galesburg Hospital Corporation |
IL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 37-1485782 | ||||
| Granbury Hospital Corporation |
TX | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 75-2682017 | ||||
| Granite City Hospital Corporation |
IL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 36-4460625 | ||||
| Granite City Illinois Hospital Company, LLC |
IL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 36-4460628 | ||||
| Greenville Hospital Corporation |
AL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 63-1134649 | ||||
| GRMC Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-8112090 | ||||
| Hallmark Healthcare Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 63-0817574 | ||||
| Hamlet H.M.A., LLC |
NC | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 58-1741827 | ||||
| Health Management Associates, Inc. |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 61-0963645 | ||||
| Health Management Associates, LP |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 27-1601497 | ||||
| Health Management General Partner I, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 46-1721316 | ||||
| Health Management General Partner, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 46-1690736 | ||||
| HMA Fentress County General Hospital, LLC |
TN | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 95-3974754 | ||||
| HMA Hospitals Holdings, LP |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-3964154 | ||||
| HMA Santa Rosa Medical Center, LLC |
FL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 68-0045270 | ||||
| HMA Services GP, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 46-1707507 | ||||
| Hobbs Medco, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1769641 | ||||
| Hospital Management Associates, LLC |
FL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 35-1410796 | ||||
Table of Contents
| Exact Name of Additional Registrants |
Jurisdiction of Incorporation or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Hospital Management Services of Florida, LP |
FL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-5917647 | ||||
| Hospital of Barstow, Inc. |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 76-0385534 | ||||
| Hospital of Fulton, Inc. |
KY | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 61-1218106 | ||||
| Hospital of Louisa, Inc. |
KY | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 61-1238190 | ||||
| Hospital of Morristown, Inc. |
TN | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1528689 | ||||
| Jackson HMA, LLC |
MS | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 64-0907122 | ||||
| Jackson Hospital Corporation (KY) |
KY | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 61-1285331 | ||||
| Jackson Hospital Corporation (TN) |
TN | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 42-1557525 | ||||
| Jefferson County HMA, LLC |
TN | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 45-2528414 | ||||
| Jourdanton Hospital Corporation |
TX | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 74-3011840 | ||||
| Kay County Hospital Corporation |
OK | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-4052833 | ||||
| Kay County Oklahoma Hospital Company, LLC |
OK | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-4052936 | ||||
| Kennett HMA, LLC |
MO | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-0248087 | ||||
| Key West HMA, LLC |
FL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 65-0905661 | ||||
| Kirksville Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 36-4373298 | ||||
| Knoxville HMA Holdings, LLC |
TN | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 45-2528116 | ||||
| Lakeway Hospital Corporation |
TN | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1564360 | ||||
| Lancaster Hospital Corporation |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 57-1010381 | ||||
| Las Cruces Medical Center, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 75-2905434 | ||||
| Lea Regional Hospital, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1760149 | ||||
Table of Contents
| Exact Name of Additional Registrants |
Jurisdiction of Incorporation or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Lehigh HMA, LLC |
FL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 65-1144586 | ||||
| Lexington Hospital Corporation |
TN | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 42-1557533 | ||||
| Longview Clinic Operations Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 75-1470252 | ||||
| Longview Medical Center, L.P. |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762420 | ||||
| Longview Merger, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1769639 | ||||
| LRH, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762421 | ||||
| Lutheran Health Network of Indiana, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762363 | ||||
| Madison HMA, LLC |
MS | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 03-0400182 | ||||
| Marion Hospital Corporation |
IL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 37-1359605 | ||||
| Marshall County HMA, LLC |
OK | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 38-3862800 | ||||
| Martin Hospital Corporation |
TN | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 42-1557527 | ||||
| Massillon Community Health System LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 55-0799029 | ||||
| Massillon Health System LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 34-1840860 | ||||
| Massillon Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 27-0201156 | ||||
| Mayes County HMA, LLC |
OK | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 61-1670947 | ||||
| McKenzie Tennessee Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 42-1557531 | ||||
| McNairy Hospital Corporation |
TN | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 42-1557530 | ||||
| MCSA, L.L.C. |
AR | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 71-0785071 | ||||
| Medical Center of Brownwood, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762425 | ||||
| Melbourne HMA, LLC |
FL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 27-3142044 | ||||
| Merger Legacy Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 27-1344746 | ||||
Table of Contents
| Exact Name of Additional Registrants |
Jurisdiction of Incorporation or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Mesquite HMA General, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 41-2035879 | ||||
| Metro Knoxville HMA, LLC |
TN | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 45-2535623 | ||||
| Mississippi HMA Holdings I, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-3964464 | ||||
| Mississippi HMA Holdings II, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-3964541 | ||||
| MMC of Nevada, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 42-1543617 | ||||
| Moberly Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 43-1651906 | ||||
| Monroe HMA, LLC |
GA | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-0141568 | ||||
| MWMC Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-8007512 | ||||
| Naples HMA, LLC |
FL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-4401957 | ||||
| Natchez Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 37-1756496 | ||||
| National Healthcare of Leesville, Inc. |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 95-4066162 | ||||
| National Healthcare of Mt. Vernon, Inc. |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 58-1622971 | ||||
| Navarro Hospital, L.P. |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762428 | ||||
| Navarro Regional, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762429 | ||||
| NC-DSH, LLC |
NV | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 88-0305790 | ||||
| Northampton Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 52-2325498 | ||||
| Northwest Arkansas Hospitals, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-5896848 | ||||
| Northwest Hospital, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762430 | ||||
| NOV Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-8112009 | ||||
| NRH, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762431 | ||||
Table of Contents
| Exact Name of Additional Registrants |
Jurisdiction of Incorporation or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Oak Hill Hospital Corporation |
WV | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 27-0003893 | ||||
| Oro Valley Hospital, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 52-2379881 | ||||
| Palmer-Wasilla Health System, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762371 | ||||
| Payson Hospital Corporation |
AZ | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 86-0874009 | ||||
| Pennsylvania Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 06-1694707 | ||||
| Phillips Hospital Corporation |
AR | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 75-2976342 | ||||
| Phoenixville Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-1055060 | ||||
| Poplar Bluff Regional Medical Center, LLC |
MO | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 43-1238701 | ||||
| Port Charlotte HMA, LLC |
FL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-1852902 | ||||
| Pottstown Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 06-1694708 | ||||
| Punta Gorda HMA, LLC |
FL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 65-0526360 | ||||
| QHG Georgia Holdings II, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 27-1344786 | ||||
| QHG Georgia Holdings, Inc. |
GA | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 58-2386459 | ||||
| QHG Georgia, LP |
GA | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 58-2387537 | ||||
| QHG of Bluffton Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1792274 | ||||
| QHG of Clinton County, Inc. |
IN | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 35-2006952 | ||||
| QHG of Enterprise, Inc. |
AL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 63-1159023 | ||||
| QHG of Forrest County, Inc. |
MS | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1704095 | ||||
| QHG of Fort Wayne Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 35-1946949 | ||||
| QHG of Hattiesburg, Inc. |
MS | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1704097 | ||||
| QHG of Massillon, Inc. |
OH | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 31-1472380 | ||||
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| Exact Name of Additional Registrants |
Jurisdiction of Incorporation or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| QHG of South Carolina, Inc. |
SC | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1587267 | ||||
| QHG of Spartanburg, Inc. |
SC | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 57-1040117 | ||||
| QHG of Springdale, Inc. |
AR | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1755664 | ||||
| Quorum Health Resources, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1742954 | ||||
| Red Bud Hospital Corporation |
IL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 36-4444121 | ||||
| Red Bud Illinois Hospital Company, LLC |
IL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 36-4443919 | ||||
| Regional Hospital of Longview, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762464 | ||||
| River Oaks Hospital, LLC |
MS | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 64-0626874 | ||||
| River Region Medical Corporation |
MS | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1576702 | ||||
| Rockledge HMA, LLC |
FL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 27-3142075 | ||||
| ROH, LLC |
MS | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 64-0780035 | ||||
| Roswell Hospital Corporation |
NM | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 74-2870118 | ||||
| Ruston Hospital Corporation |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-8066937 | ||||
| Ruston Louisiana Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-8066999 | ||||
| SACMC, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762472 | ||||
| Salem Hospital Corporation |
NJ | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 22-3838322 | ||||
| San Angelo Community Medical Center, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762473 | ||||
| San Angelo Medical, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1769697 | ||||
| San Miguel Hospital Corporation |
NM | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 74-2930034 | ||||
| Scranton Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 27-4577223 | ||||
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| Exact Name of Additional Registrants |
Jurisdiction of Incorporation or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Scranton Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 27-4564798 | ||||
| Scranton Quincy Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 45-2671991 | ||||
| Scranton Quincy Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 45-2672023 | ||||
| Sebastian Hospital, LLC |
FL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 65-0425888 | ||||
| Sebring Hospital Management Associates, LLC |
FL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 59-2546390 | ||||
| Seminole HMA, LLC |
OK | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 45-4164241 | ||||
| Sharon Pennsylvania Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 46-4257540 | ||||
| Sharon Pennsylvania Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 38-3920098 | ||||
| Shelbyville Hospital Corporation |
TN | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-2909388 | ||||
| Siloam Springs Arkansas Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-3635210 | ||||
| Siloam Springs Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-3635188 | ||||
| Southeast HMA Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-3964613 | ||||
| Southern Texas Medical Center, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1769737 | ||||
| Southwest Florida HMA Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-3964696 | ||||
| Spokane Valley Washington Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-1315140 | ||||
| Spokane Washington Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-1315081 | ||||
| Statesville HMA, LLC |
NC | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 56-2206788 | ||||
| Tennessee HMA Holdings, LP |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 46-1750499 | ||||
| Tennyson Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-3943816 | ||||
| Tomball Texas Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 45-2784214 | ||||
| Tomball Texas Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 45-2856063 | ||||
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| Exact Name of Additional Registrants |
Jurisdiction of Incorporation or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Tooele Hospital Corporation |
UT | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 87-0619248 | ||||
| Triad Healthcare Corporation |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 75-2816101 | ||||
| Triad Holdings III, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 75-2821745 | ||||
| Triad Holdings IV, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1766957 | ||||
| Triad Holdings V, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 51-0327978 | ||||
| Triad Nevada Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-1639289 | ||||
| Triad of Alabama, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762412 | ||||
| Triad of Oregon, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1761990 | ||||
| Triad-ARMC, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 46-0496926 | ||||
| Triad-El Dorado, Inc. |
AR | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1628508 | ||||
| Triad-Navarro Regional Hospital Subsidiary, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1681610 | ||||
| Tunkhannock Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 27-4566015 | ||||
| Van Buren H.M.A., LLC |
AR | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 58-1725652 | ||||
| Venice HMA, LLC |
FL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-1852812 | ||||
| VHC Medical, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1769671 | ||||
| Vicksburg Healthcare, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1752111 | ||||
| Victoria Hospital, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1760818 | ||||
| Victoria of Texas, L.P. |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1754940 | ||||
| Virginia Hospital Company, LLC |
VA | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 02-0691406 | ||||
| Warren Ohio Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 27-3190619 | ||||
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| Exact Name of Additional Registrants |
Jurisdiction of Incorporation or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Warren Ohio Rehab Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 27-3190578 | ||||
| Watsonville Hospital Corporation |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 91-1894113 | ||||
| Waukegan Hospital Corporation |
IL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-3978400 | ||||
| Waukegan Illinois Hospital Company, LLC |
IL | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-3978521 | ||||
| Weatherford Hospital Corporation |
TX | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-5694260 | ||||
| Weatherford Texas Hospital Company, LLC |
TX | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-5694301 | ||||
| Webb Hospital Corporation |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-0167530 | ||||
| Webb Hospital Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-0167590 | ||||
| Wesley Health System LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 52-2050792 | ||||
| West Grove Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 25-1892279 | ||||
| WHMC, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762551 | ||||
| Wilkes-Barre Behavioral Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-3632720 | ||||
| Wilkes-Barre Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-3632542 | ||||
| Wilkes-Barre Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 26-3632648 | ||||
| Williamston Hospital Corporation |
NC | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1749107 | ||||
| Winder HMA, LLC |
GA | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 20-3749930 | ||||
| Women & Children’s Hospital, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762556 | ||||
| Woodland Heights Medical Center, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762558 | ||||
| Woodward Health System, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 62-1762418 | ||||
| Yakima HMA, LLC |
WA | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 45-0506909 | ||||
| York Pennsylvania Holdings, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 32-0360922 | ||||
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| Exact Name of Additional Registrants |
Jurisdiction of Incorporation or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| York Pennsylvania Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 45-4082660 | ||||
| Youngstown Ohio Hospital Company, LLC |
DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 | 8062 | 27-3074094 | ||||
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PROSPECTUS
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
Debt Securities
Preferred Stock
Common Stock
Depositary Shares
Securities Warrants
Guarantees of Debt Securities
Community Health Systems, Inc. and/or CHS/Community Health Systems, Inc. may offer and sell, from time to time, in one or more offerings, any combination of the securities we describe in this prospectus. This prospectus also covers guarantees, if any, of our obligations under any debt securities, which may be provided by Community Health Systems, Inc., CHS/Community Health Systems, Inc., and/or one or more of our subsidiaries.
This prospectus describes some of the general terms that may apply to these securities. We will provide the specific terms of these securities, including their offering prices, in supplements to this prospectus. The prospectus supplements may also add, update or change information contained in this prospectus. You should carefully read this prospectus, any accompanying prospectus supplement and any documents we incorporate by reference before you invest.
These securities may be offered and sold directly by us or by any selling security holder to or through one or more underwriters, dealers and agents or directly to purchasers or through a combination of these methods, on a continuous or delayed basis. The applicable prospectus supplement will provide the names of any underwriters, dealers or agents, the specific terms of the plan of distribution, any over-allotment option and any applicable underwriting discounts and commissions.
Community Health Systems, Inc. common stock is listed on the New York Stock Exchange under the symbol “CYH.” We have not yet determined whether any of the other securities that may be offered by this prospectus will be listed on any exchange, inter-dealer quotation system or over-the-counter market. If we decide to seek the listing of any such securities upon issuance, the prospectus supplement relating to those securities will disclose the exchange, quotation system or market on which the securities will be listed.
Investing in our securities involves risks. See “Risk Factors” beginning on page 6 of this prospectus. You should also consider the risk factors described in the accompanying prospectus supplement or any documents we incorporate by reference.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is May 6, 2015.
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| DESCRIPTION OF THE DEBT SECURITIES AND GUARANTEES OF DEBT SECURITIES |
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This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”) utilizing the SEC’s “shelf” registration rules. Under the shelf registration rules, we and/or one or more selling security holders may, from time to time, sell in one or more offerings, any of the securities described in this prospectus.
This prospectus provides you with a general description of the securities we may sell. Each time we sell securities under this prospectus, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read, this prospectus, the applicable prospectus supplement and the additional information described under the headings “Where You Can Find Additional Information” and “Incorporation of Certain Information by Reference” before making an investment decision. You should rely only on the information contained or incorporated by reference in this prospectus and any prospectus supplement. We have not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted.
You should not assume that the information in this prospectus, any accompanying prospectus supplement or any documents we incorporation by reference is accurate as of any date other than the date on the front of those documents. Our business, financial condition, results of operations and prospectus may have changed since that date.
In this prospectus “we,” “us,” “our” and the “Company” refer to Community Health Systems, Inc., a Delaware corporation, and its consolidated subsidiaries, including CHS/Community Health Systems, Inc., unless the context otherwise requires. “CHS” refers to CHS/Community Health Systems, Inc., a Delaware corporation and a wholly owned subsidiary of Community Health Systems, Inc., and none of its subsidiaries. With respect to debt securities, the term “issuer” means Community Health Systems, Inc. and/or CHS, depending on which registrant is offering the debt securities.
This prospectus, any prospectus supplement and any documents we incorporate by reference may contain “forward-looking statements” within the meaning of the federal securities laws, which involve risks, assumptions and uncertainties. The accompanying prospectus supplement may also contain these types of forward-looking statements. Statements that are predictive in nature, that depend upon or refer to future events or conditions, or that include words such as “expects,” “anticipates,” “intends,” “plans,” “believes,” “estimates,” “thinks,” and similar expressions are forward-looking statements. These statements involve known and unknown risks, uncertainties and other factors relating to us or the healthcare industry generally that may cause our actual results and performance to be materially different from any future results or performance expressed or implied by these forward-looking statements. These factors include, but are not limited to, the following:
| • | general economic and business conditions, both nationally and in the regions in which we operate; |
| • | implementation, effect of, and changes to, adopted and potential federal and state healthcare reform legislation and other federal, state or local laws or regulations affecting the healthcare industry; |
| • | the extent to which states support increases, decreases or changes in Medicaid programs, implement healthcare exchanges or alter the provision of healthcare to state residents through regulation or otherwise; |
| • | risks associated with our substantial indebtedness, leverage and debt service obligations; |
| • | demographic changes; |
| • | changes in, or the failure to comply with, governmental regulations; |
| • | potential adverse impact of known and unknown government investigations, audits, and Federal and State False Claims Act litigation and other legal proceedings; |
| • | our ability, where appropriate, to enter into and maintain managed care provider arrangements and the terms of these arrangements; |
| • | changes in, or the failure to comply with, managed care provider contracts, which could result in, among other things, disputes and changes in reimbursements, both prospectively and retroactively; |
| • | changes in inpatient or outpatient Medicare and Medicaid payment levels; |
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| • | the effects related to the continued implementation of the sequestration spending reductions and the potential for future deficit reduction legislation; |
| • | increases in the amount and risk of collectability of patient accounts receivable; |
| • | the efforts of insurers, healthcare providers and others to contain healthcare costs; |
| • | our ongoing ability to demonstrate meaningful use of certified electronic health record technology and recognize income for the related Medicare or Medicaid incentive payments; |
| • | increases in wages as a result of inflation or competition for highly technical positions and rising supply costs due to market pressure from pharmaceutical companies and new product releases; |
| • | liabilities and other claims asserted against us, including self-insured malpractice claims; |
| • | competition; |
| • | our ability to attract and retain, at reasonable employment costs, qualified personnel, key management, physicians, nurses and other healthcare workers; |
| • | trends toward treatment of patients in less acute or specialty healthcare settings, including ambulatory surgery centers or specialty hospitals; |
| • | changes in medical or other technology; |
| • | changes in U.S. GAAP; |
| • | the availability and terms of capital to fund additional acquisitions or replacement facilities or other capital expenditures; |
| • | our ability to successfully make acquisitions or complete divestitures; |
| • | our ability to successfully integrate any acquired hospitals, including those of HMA, or to recognize expected synergies from acquisitions; |
| • | the impact of the acquisition of HMA on third-party relationships; |
| • | the impact of seasonal severe weather conditions; |
| • | our ability to obtain adequate levels of general and professional liability insurance; |
| • | timeliness of reimbursement payments received under government programs; |
| • | effects related to outbreaks of infectious diseases, including Ebola; |
| • | the impact of the external, criminal cyber-attack suffered by us in the second quarter of 2014, including potential reputational damage, the outcome of our investigation and any potential governmental inquiries, the outcome of litigation filed against us in connection with this cyber-attack, and the extent of remediation costs and additional operating or other expenses that we may continue to incur, and the impact of potential future cyber-attacks or security breaches; and |
| • | other risk factors disclosed under “Risk Factors” and elsewhere in or incorporated by reference in this prospectus and the applicable prospectus supplement. |
Although we believe that these forward-looking statements are based upon reasonable assumptions, these assumptions are inherently subject to significant regulatory, economic and competitive uncertainties and contingencies, which are difficult or impossible to predict accurately and may be beyond our control. Accordingly, we cannot give any assurance that our expectations will in fact occur and caution that actual results may differ materially from those in the forward-looking statements. Given these uncertainties, prospective investors are cautioned not to place undue reliance on these forward-looking statements. These forward-looking statements speak only as of the date they are made. We undertake no obligation to revise or update any forward-looking statements, or to make any other forward-looking statements, whether as a result of new information, future events or otherwise.
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WHERE YOU CAN FIND ADDITIONAL INFORMATION
We are a reporting company under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and file annual, quarterly and current reports, proxy statements and other information with the SEC. The public may read and copy any materials filed with the SEC at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, DC 20549. The public may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. Also, the SEC maintains an Internet web site that contains reports, proxy and information statements, and other information regarding registrants, including us, that file electronically with the SEC. The public can obtain any documents that we file electronically with the SEC at the SEC’s Internet web site, http://www.sec.gov. Our common stock is listed on the New York Stock Exchange and all such material filed by us with the New York Stock Exchange also can be inspected at the offices of the New York Stock Exchange, 11 Wall Street Street, New York, New York 10005.
We also make available free of charge on or through the investor relations section of our Internet web site, http://www.chs.net, Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and, if applicable, amendments to those reports filed or furnished pursuant to Section 13(a) of the Exchange Act, as soon as reasonably practicable after we electronically file these materials with the SEC. You may also request copies of these filings at no cost by telephoning us at (615) 465-7000 or writing us at the following address: Community Health Systems, Inc., 4000 Meridian Boulevard, Franklin, TN 37067, Attention: Investor Relations. Except as set forth under “Incorporation of Certain Information by Reference,” information on our Internet web site is not incorporated by reference into this prospectus and should not be considered a part of this prospectus or the registration statement of which it is a part.
We have filed with the SEC a registration statement on Form S-3 relating to the securities covered by this prospectus. This prospectus is a part of the registration statement and does not contain all the information in the registration statement. Whenever a reference is made in this prospectus or any prospectus supplement to a contract or other document of ours, the reference is only a summary. For a copy of the contract or other document, you should refer to the exhibits that are a part of the registration statement or incorporated by reference into the registration statement by the filing of a Form 8-K or otherwise. You may review a copy of the registration statement and the documents we incorporate by reference at the SEC’s Public Reference Room in Washington, D.C., as well as through the SEC’s Internet web site referenced above.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference” into this prospectus information contained in documents that we file with it. This means that we can disclose important information to you by referring you to those documents. The information incorporated by reference into this prospectus is an important part of this prospectus, and information we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings we will make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the date that the offering of the securities by means of this prospectus is terminated (other than, in each case, documents or information deemed to have been furnished and not filed in accordance with SEC rules, including Current Reports on Form 8-K furnished under Item 2.02 or Item 7.01 (including any financial statements or exhibits relating thereto furnished pursuant to Item 9.01)):
| • | our Annual Report on Form 10-K for the fiscal year ended December 31, 2014 (including portions of our Proxy Statement for our 2015 Annual Meeting of Stockholders filed on April 3, 2015 with the SEC to the extent specifically incorporated by reference in such Form 10-K) filed on February 25, 2015; |
| • | our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2015 filed on May 6, 2015; |
| • | our Current Reports on Form 8-K filed on February 27, 2015, March 10, 2015 and April 1, 2015; and |
| • | the description of our common stock in our Registration Statement on Form 8-A filed on June 5, 2000. |
You may request a copy of these filings at no cost, by writing or telephoning us as follows:
Community Health Systems, Inc.
4000 Meridian Boulevard, Franklin, TN 37067
Attn: Investor Relations Department
(615) 465-7000
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You may also obtain a copy of these filings from the investor relations section of our Internet web site at http://www.chs.net. Please note, however, that the information on our Internet web site, other than the documents listed or described above, is not intended to be incorporated by reference into this prospectus and should not be considered a part of this prospectus.
OUR COMPANY
We are one of the largest publicly-traded hospital companies in the United States and a leading operator of general acute care hospitals in communities across the country. We provide healthcare services through the hospitals that we own and operate and affiliated businesses in non-urban and selected urban markets throughout the United States. We generate revenues by providing a broad range of general and specialized hospital healthcare services and other outpatient services to patients in the communities in which we are located. As of March 31, 2015, we owned or leased 197 hospitals included in continuing operations, comprised of 193 general acute care hospitals and four stand-alone rehabilitation or psychiatric hospitals. In addition to our hospitals and related businesses, we own and operate home care agencies, located primarily in markets where we also operate a hospital. Services provided through our hospitals and affiliated businesses include general acute care, emergency room, general and specialty surgery, critical care, internal medicine, obstetrics, diagnostic, psychiatric and rehabilitation services. We also provide additional outpatient services at urgent care centers, occupational medicine clinics, imaging centers, cancer centers, ambulatory surgery centers and home health and hospice agencies. An integral part of providing these services is our relationship and network of affiliated physicians at our hospitals and affiliated businesses. Through our management and operation of these businesses, we provide standardization and centralization of operations across key business areas; strategic assistance to expand and improve services and facilities; implementation of patient safety and quality of care improvement programs and assistance in the recruitment of additional physicians and licensed healthcare practitioners to the markets in which our hospitals are located. In a number of our markets, we have partnered with local physicians or not-for-profit providers, or both, in the ownership of our facilities. Also, through our wholly-owned subsidiary, Quorum Health Resources, LLC, or QHR, we provide management and consulting services to non-affiliated general acute care hospitals located throughout the United States. For the hospitals and home care agencies that we own and operate, we are paid for our services by governmental agencies, private insurers and directly by the patients we serve. For our management and consulting services, we are paid by the non-affiliated hospitals utilizing our services.
On January 27, 2014, we and one of our wholly-owned subsidiaries completed the acquisition of Health Management Associates, Inc., or HMA, by acquiring through a merger all the outstanding shares of common stock of HMA, or HMA common stock, for approximately $7.3 billion, including the assumption of approximately $3.8 billion of indebtedness, consisting of a combination of cash and Community Health Systems, Inc. common stock.
Corporate Information
Community Health Systems, Inc. was incorporated in the State of Delaware on June 6, 1996. CHS/Community Health Systems, Inc. was incorporated in the State of Delaware on March 25, 1985. Our principal executive offices are located at 4000 Meridian Boulevard, Franklin, Tennessee 37067, and our telephone number is (615) 465-7000. Our web site is http://www.chs.net. Information on our web site shall not be deemed part of this prospectus.
An investment in our securities involves risks, including those that are generally associated with operating in the health care industry. Before deciding to purchase any of our securities, you should carefully consider the risks described in the documents incorporated by reference in this prospectus and, if applicable, in any prospectus supplement used in connection with an offering of securities, including those risks identified under “Part I—Item IA. Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2014, which is incorporated by reference in this prospectus and which may be amended, supplemented or superseded from time to time by other reports that we subsequently file with the SEC. The risks that we discuss in the documents incorporated by reference in this prospectus are those we currently believe may materially affect our company. Additional risks not presently known to us or that we currently believe are immaterial also may materially and adversely affect our business, financial condition, results of operations and cash flows.
Unless indicated otherwise in any applicable prospectus supplement, we intend to use the net proceeds from the sale of our securities for our operations and for other general corporate purposes, including repayment or refinancing of borrowings, working capital, capital expenditures, investments, acquisitions and the repurchase of our outstanding securities. Additional information on the use of net proceeds from the sale of securities that we may offer from time to time by this prospectus may be set forth in the applicable prospectus supplement relating to a particular offering. We will not receive any of the proceeds from sales of securities by selling security holders.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our historical consolidated ratios of earnings to fixed charges on a consolidated basis for the periods indicated. This information should be read in conjunction with our consolidated financial statements, including the notes to those statements, incorporated by reference in this prospectus.
| Year Ended December 31, | Three Months Ended March 31, |
|||||||||||||||||||||||
| 2010 | 2011 | 2012 | 2013 | 2014 | 2015 | |||||||||||||||||||
| Ratio of earnings to fixed charges(1) |
1.70x | 1.63x | 1.69x | 1.51x | 1.29x | 1.56x | ||||||||||||||||||
| (1) | For purposes of determining the ratio of earnings to fixed charges, earnings represent earnings from continuing operations before income taxes, plus fixed charges. Fixed charges consist of interest expense on all indebtedness, amortization of debt discount, amortization of deferred financing costs and an interest factor attributable to operating leases. We did not have any preferred stock outstanding during the periods presented in the table above. |
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DESCRIPTION OF THE SECURITIES WE MAY ISSUE
Overview
This prospectus describes the securities we may issue from time to time. The remainder of this section provides some background information about the manner in which the securities may be held. The three sections following this section of the prospectus describe the terms of the basic categories of securities that we may issue pursuant to this prospectus:
| • | our debt securities, which: |
| • | may be senior or subordinated; |
| • | may be secured or unsecured; |
| • | may be convertible or exchangeable into our common stock or other securities; |
| • | may be guaranteed by CHS and one or more of our other subsidiaries; or |
| • | may be issued by CHS rather than us and guaranteed by us and/or one or more of our other subsidiaries; |
| • | our preferred stock and depositary shares representing fractional shares of our preferred stock; |
| • | our common stock, preferred stock and depositary shares representing fractional shares of our preferred stock; and |
| • | warrants to purchase our debt securities, preferred stock, depositary shares or common stock. |
When we refer to you, we mean those who invest in the securities being offered by this prospectus, whether they are the legal holders or only indirect holders of those securities. When we refer to your securities, we mean the securities in which you hold a direct or indirect interest.
Prospectus Supplements
This prospectus provides you with a general description of the securities we or any selling security holder may offer. Each time we or any selling security holders sell any of the securities, we or such selling security holder will provide a prospectus supplement that will contain specific information about the terms of that offering and the securities being offered at that time. The prospectus supplement may also add to or change information contained in this prospectus. If so, the information in the prospectus supplement should be read as superseding the information in this prospectus. You should read both this prospectus and any applicable prospectus supplement, together with additional information described under the heading “Where You Can Find Additional Information.”
Any applicable prospectus supplement to be attached to the front of this prospectus will describe the terms of any securities that we or any selling security holder offer, as well as the other specific terms related to that offering. For more details on the terms of the securities, you should read the exhibits filed with our registration statement, of which this prospectus is a part, including any future filings we will make with the SEC that are incorporated by reference into the registration statement by filing a Current Report on Form 8-K or otherwise.
Legal Ownership of Securities
Holders of Securities
Book-Entry Holders. We will issue debt securities under this prospectus in book-entry form only, unless we specify otherwise in the applicable prospectus supplement. We may, but are not obligated to, issue shares of common stock, shares of preferred stock and securities warrants under this prospectus in book-entry form. If securities are issued in book-entry form, this means the securities will be represented by one or more global securities registered in the name of a financial institution that holds them as depositary on behalf of other financial institutions that participate in the depositary’s book-entry system. These participating institutions, in turn, hold beneficial interests in the securities on behalf of themselves or their customers.
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We will only recognize the person in whose name a security is registered as the holder of that security. Consequently, for securities issued in global form, we will recognize only the depositary as the holder of the securities, and all payments on the securities will be made to the depositary. The depositary passes along the payments it receives to its participants, which in turn pass the payments along to their customers, who are the beneficial owners. The depositary and its participants do so under agreements they have made with one another or with their customers. They are not obligated to do so under the terms of the securities.
As a result, investors of securities in book-entry form will not own these securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial institution that participates in the depositary’s book-entry system or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not holders, of the securities. For more information about securities issued in global form, see “— Global Securities” below.
Street Name Holders. Alternatively, we may initially issue securities under this prospectus in non-global form. We may also terminate a global security at any time after it is issued. In these cases, investors may choose to hold their securities in their own names or in “street name.” Securities held by an investor in street name would be registered in the name of a bank, broker or other financial institution that the investor chooses. In that event, the investor would hold only a beneficial interest in those securities through an account that the investor maintains at that institution.
For securities held in street name, we will recognize only the intermediary banks, brokers and other financial institutions in whose names the securities are registered as the holders of those securities and all payments on those securities will be made to them. These institutions pass along the payments they receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not holders, of those securities.
Legal Holders. We, and any third parties employed by us or acting on your behalf, including trustees, depositories and transfer agents, generally are obligated only to the legal holders of the securities. In a number of respects, we do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities only in global form.
For example, once we make a payment or give a notice to the legal holder, we have no further responsibility for the payment or notice even if that legal holder is required, under agreements with depositary participants or customers or by law, to pass the payment or notice along to the indirect holders but does not do so. Similarly, if we want to obtain the approval of the holders to amend an indenture, to relieve ourselves of the consequences of a default or of our obligation to comply with a particular provision of the indenture or for any other purpose, we would seek the approval only from the legal holders, and not the indirect holders, of the securities. Whether and how the legal holders contact the indirect holders is determined by the legal holders.
Special Considerations for Indirect Holders. If you hold securities through a bank, broker or other financial institution, either in book-entry form or in street name, you should check with your own institution to find out:
| • | how it handles securities payments and notices; |
| • | whether it imposes fees or charges; |
| • | how it would handle a request for the holders’ consent, if ever required; |
| • | whether and how you can instruct it to send you securities registered in your own name so you can be a legal holder, if that is permitted in the future; |
| • | how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests; and |
| • | if the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters. |
Global Securities
What is a Global Security? A global security represents one or any other number of individual securities. Generally, all securities represented by the same global securities will have the same terms. We may, however, issue a global security that represents multiple securities that have different terms and are issued at different times. We call this kind of global security a master global security.
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Each security issued in book-entry form will be represented by a global security that we deposit with and register in the name of a financial institution that we select or its nominee. The financial institution that is selected for this purpose is called the depositary. Unless we specify otherwise in the applicable prospectus supplement, The Depository Trust Company, New York, New York, known as DTC, will be the depositary for all securities issued in book-entry form. Beneficial interests in global securities will be shown on, and transfers of global securities will be reflected through, records maintained by DTC and its participants.
A global security may not be transferred to or registered in the name of anyone other than the depositary or its nominee, unless special termination situations arise or as otherwise described in the applicable prospectus supplement. We describe those situations under “— Special Situations When a Global Security Will Be Terminated” below. As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will not be a holder of the security, but only an indirect holder of a beneficial interest in the global security.
Special Considerations for Global Securities. As an indirect holder, an investor’s rights relating to a global security will be governed by the account rules of the investor’s financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize this type of investor as a holder of securities and instead will deal only with the depositary that holds the global security.
If securities are issued only in the form of a global security, an investor should be aware of the following:
| • | an investor cannot cause the securities to be registered in the name of the investor, and cannot obtain physical certificates for the investor’s interest in the securities, except in the special situations we describe below; |
| • | an investor will be an indirect holder and must look to the investor’s own broker, bank or other financial institution for payments on the securities and protection of the investor’s legal rights relating to the securities, as we describe under “— Legal Ownership of Securities — Holders of Securities” above; |
| • | an investor may not be able to sell interests in the securities to some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form; |
| • | an investor may not be able to pledge the investor’s interest in a global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective; |
| • | the depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor’s interest in a global security. Neither we nor any third parties employed by us or acting on your behalf, including trustees and transfer agents, have any responsibility for any aspect of the depositary’s actions or for its records of ownership interests in a global security. Neither we, the trustee, the transfer agent nor any other third parties supervise the depositary in any way; |
| • | DTC requires that those who purchase and sell interests in a global security within its book-entry system use immediately available funds and your broker, bank or other financial institution may require you to do so as well; and |
| • | brokers, banks and other financial institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest in a global security, may also have their own policies affecting payments, notices and other matters relating to the security. There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries. |
Special Situations When a Global Security Will Be Terminated. In some situations described below, a global security will be terminated and interests in it will be exchanged for certificates in non-global form representing the securities it represented. After that exchange, the choice of whether to hold the securities directly or in street name will be up to the investor. Investors must consult their own brokers, banks or other financial institutions to find out how to have their interests in a global security transferred on termination to their own names so that they will be holders. We have described the rights of holders and street name investors above under “— Legal Ownership of Securities — Holders of Securities” above.
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The special situations for termination of a global security are as follows:
| • | if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security, and we do not appoint another institution to act as depositary within a specified time period; or |
| • | if we elect to terminate that global security. |
A prospectus supplement may also list additional situations for terminating a global security that would apply to that particular series of securities covered by that prospectus supplement. If a global security is terminated, the depositary has the sole responsibility for determining the institutions in whose names the securities represented by the global security will be registered and, therefore, who will be the holders of those securities.
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DESCRIPTION OF THE DEBT SECURITIES AND
GUARANTEES OF DEBT SECURITIES
We may issue debt securities from time to time in one or more distinct series. The debt securities will either be senior debt securities or subordinated debt securities. Senior debt securities will be issued under a senior indenture and subordinated debt securities will be issued under a subordinated indenture, in each case as supplemented, if applicable. Unless otherwise specified in the applicable prospectus supplement, the trustee under the indentures will be Regions Bank. We will include in a supplement to this prospectus the specific terms of each series of debt securities being offered, including the terms, if any, on which a series of debt securities may be convertible into or exchangeable for common stock, preferred stock, depositary shares or other debt securities. The statements and descriptions in this prospectus or in any prospectus supplement regarding provisions of the debt securities, their indentures and their guarantees, if any, are summaries of these provisions, do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all of the provisions of the debt securities, their indentures (including any amendments or supplements we may enter into from time to time which are permitted under each indenture) and their guarantees, if any.
The applicable prospectus supplement will specify whether such debt securities will be issued by Community Health Systems, Inc. or CHS, and whether the debt securities will be guaranteed by Community Health Systems, Inc., CHS and/or one or more of our other subsidiaries. Unless otherwise specified in a prospectus supplement, the debt securities will be direct unsecured obligations of the issuer. The senior debt securities will rank equally with any of our other senior and unsubordinated debt. The subordinated debt securities will be subordinate and junior in right of payment to any or specified senior indebtedness. There may be subordinated debt securities that are senior or junior to other series of subordinated debt securities.
The applicable prospectus supplement will set forth the terms of each series of debt securities, including, if applicable:
| • | the title of the debt securities and whether the debt securities will be senior debt securities or subordinated debt securities; |
| • | any limit upon the aggregate principal amount of the debt securities; |
| • | whether the debt securities will be issued as registered securities, bearer securities or both, and any restrictions on the exchange of one form of debt securities for another and on the offer, sale and delivery of the debt securities in either form; |
| • | the date or dates on which the principal amount of the debt securities will mature; |
| • | if the debt securities bear interest, the rate or rates at which the debt securities bear interest and the date or dates from which interest will accrue; |
| • | if the debt securities bear interest, the dates on which interest will be payable and the regular record dates for interest payments; |
| • | the place or places where the payment of principal, any premium and interest will be made, where the debt securities may be surrendered for transfer or exchange and where notices or demands to or upon us may be served; |
| • | any optional redemption provisions, which would allow us to redeem the debt securities in whole or in part; |
| • | any sinking fund or other provisions that would obligate us to redeem, repay or purchase the debt securities; |
| • | the denominations in which any registered securities will be issuable, and the denominations in which any bearer securities will be issuable; |
| • | if other than the entire principal amount, the portion of the principal amount of debt securities which will be payable upon a declaration of acceleration of the maturity of the debt securities; |
| • | information with respect to events of default and covenants relevant to the debt securities; |
| • | if a person other than Regions Bank is to act as trustee for the debt securities, the name and location of the corporate trust office of that trustee; |
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| • | the currency in which the debt securities will be paid or denominated; |
| • | if the debt securities are to be payable, at our election or the election of a holder of the debt securities, in a currency other than that in which the debt securities are denominated or stated to be payable, the terms and conditions upon which that election may be made, and the time and manner of determining the exchange rate between the currency in which the debt securities are denominated or stated to be payable and the currency in which the debt securities are to be so payable; |
| • | the designation of the original currency determination agent, if any; |
| • | if the debt securities are issuable as indexed securities, the manner in which the amount of payments of principal, any premium and interest will be determined; |
| • | provisions for the satisfaction and discharge of that indenture with respect to the debt securities issued under that indenture; |
| • | the date as of which any bearer securities and any global security will be dated if other than the date of original issuance of the first debt security of a particular series to be issued; |
| • | whether the debt securities will be issued in whole or in part in the form of a global security or securities and, in that case, any depositary and global exchange agent for the global security or securities, whether the global form shall be permanent or temporary and, if applicable, the exchange date; |
| • | if debt securities are to be issuable initially in the form of a temporary global security, the circumstances under which the temporary global security can be exchanged for definitive debt securities and whether the definitive debt securities will be registered securities, bearer securities or will be in global form and provisions relating to the payment of interest in respect of any portion of a global security payable in respect of an interest payment date prior to the exchange date; |
| • | the extent and manner to which payment on or in respect of debt securities will be subordinated to the prior payment of our other liabilities and obligations; |
| • | whether payment of any amount due under the debt securities will be guaranteed by one or more guarantors, including Community Health Systems, Inc. and one or more of our subsidiaries; and |
| • | any other terms of the debt securities, which terms shall not be inconsistent with the requirements of the Trust Indenture Act of 1939, as amended. |
This prospectus is part of a registration statement that does not limit the aggregate principal amount of debt securities that we may issue and provides that we may issue debt securities from time to time in one or more series under one or more indentures, in each case with the same or various maturities, at premium, at par or at a discount. Unless indicated in a prospectus supplement, we may issue additional debt securities of a particular series without the consent of the holders of the debt securities of such series outstanding at the time of the issuance. Any such additional debt securities, together with all other outstanding debt securities of that series, will constitute a single series of debt securities under the applicable indenture.
We intend to disclose any restrictive covenants for any issuance or series of debt securities in the applicable prospectus supplement.
As noted above, our debt securities may be guaranteed by CHS, Community Health Systems, Inc. and/or one or more of our other subsidiaries, if so provided in the applicable prospectus supplement or other offering material. Unless otherwise provided in any prospectus supplement, and as updated for the creation, acquisition, winding-up or sale of subsidiaries, to the extent there are any guarantors of any new debt securities issued by CHS, the guarantors of such new debt securities will be identical to the guarantors under the outstanding senior notes of CHS as of the date the new debt securities are issued. Unless otherwise provided in any prospectus supplement, and as updated for the creation, acquisition, winding-up or sale of subsidiaries, to the extent there are any guarantors on any new debt securities we issue, the guarantors of our new debt securities will also be identical to the guarantors under CHS’s outstanding senior notes as of the date these new debt securities are issued, except that (a) as the issuer of these new debt securities, we will not be providing a guarantee on these notes, and (b) to the extent it is not a co-issuer, CHS will be a guarantor of these new debt securities. The prospectus supplement or other offering material will describe the terms of any guarantees, including, among other things, the ranking of
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the guarantee, the method for determining the identity of the guarantors and the conditions under which guarantees will be added or released. Any guarantees will be joint and several obligations of the guarantors. The obligations of each guarantor under its guarantee will be limited as necessary to prevent the guarantee from constituting a fraudulent conveyance or fraudulent transfer under applicable law.
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DESCRIPTION OF THE CAPITAL STOCK
The following description of our capital stock is not meant to be complete and is qualified in its entirety by reference to our restated certificate of incorporation and amended and restated by-laws.
Authorized Capital
We are authorized to issue up to 400,000,000 shares of capital stock, of which 300,000,000 may be shares of common stock, par value $.01 per share, and 100,000,000 may be shares of preferred stock, par value $.01 per share. As of April 29, 2015, 118,034,114 shares of Company common stock were issued and outstanding and no shares of Company preferred stock were issued and outstanding.
Common Stock
Holders of our common stock are entitled to one vote for each share on all matters voted on by our stockholders. Holders of our common stock do not have cumulative voting rights in the election of directors. Holders of our common stock do not have any preemptive right to subscribe for or purchase any of our securities of any class or kind.
Holders of our common stock do not have any subscription, redemption or conversion privileges. Subject to the preferences or other rights of any our preferred stock that may be issued from time to time, holders of our common stock are entitled to participate ratably in dividends on our common stock as declared by our board of directors. Holders of our common stock are entitled to share ratably in all assets available for distribution to our stockholders in the event of our liquidation or dissolution, subject to distribution of the preferential amount, if any, to be distributed to holders of our preferred stock.
Preferred Stock
We may issue preferred stock from time to time in one or more distinct series. We will include in a supplement to this prospectus the specific terms of each series of preferred stock being offered, including the terms, if any, on which a series of preferred stock may be convertible into or exchangeable for common stock or debt securities. The statements and descriptions of the terms of the preferred stock in this section and any prospectus supplement is only a summary of the preferred stock that we may offer. We urge you to read carefully our restated certificate of incorporation and the certificate of designation we will file in relation to an issue of any particular series of preferred stock before you buy any preferred stock.
Our board of directors may, without further action of the stockholders, determine the following for each series of preferred stock, and the applicable prospectus supplement will set forth the terms of each series of preferred stock, including, if applicable:
| • | the distinctive serial designation and the number of shares; |
| • | the dividend rate or rates, whether dividends will be cumulative and, if so, from what date, the payment date or dates for dividends, and any participating or other special rights with respect to dividends; |
| • | any voting powers of the shares; |
| • | whether the shares will be redeemable and, if so, the price or prices at which, and the terms and conditions on which, the shares may be redeemed; |
| • | the amount or amounts payable upon the shares in the event of voluntary or involuntary liquidation, dissolution or winding up of us prior to any payment or distribution of our assets to any class or classes of our stock ranking junior to the preferred stock; |
| • | whether the shares will be entitled to the benefit of a sinking or retirement fund and, if so entitled, the amount of the fund and the manner of its application, including the price or prices at which the shares may be redeemed or purchased through the application of the fund; |
| • | whether the shares will be convertible into, or exchangeable for, shares of any other class or of any other series of the same or any other class of our stock or the stock of another issuer, and if so convertible or exchangeable, the conversion price or prices, or the rates of exchange, and any adjustments to the conversion price or rates of exchange at which the conversion or exchange may be made, and any other terms and conditions of the conversion or exchange; and |
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| • | any other preferences, privileges and powers, and relative, participating, optional, or other special rights, and qualifications, limitations or restrictions, as our board of directors may deem advisable and as will not be inconsistent with the provisions of our restated certificate of incorporation. |
The preferred stock, when issued, will be fully paid and non-assessable. Unless the applicable prospectus supplement provides otherwise, the preferred stock will have no preemptive rights to subscribe for any additional securities that may be issued by us in the future. The transfer agent and registrar for the preferred stock and any depositary shares will be specified in the applicable prospectus supplement.
We may elect to offer depositary shares represented by depositary receipts. If we so elect, each depositary share will represent a fractional interest in a share of preferred stock or multiple shares of preferred stock with the amount of the preferred shares to be specified in the applicable prospectus supplement. If we issue depositary shares representing interests in shares of preferred stock, those shares of preferred stock will be deposited with a depositary.
The shares of any series of preferred stock underlying the depositary shares will be deposited under a separate deposit agreement between us and a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50 million. The applicable prospectus supplement will set forth the name and address of the depositary. Subject to the terms of the deposit agreement, each owner of a depositary share will have a pro rata interest in all the rights and preferences of the preferred stock underlying the depositary share. Those rights include any dividend, voting, redemption, conversion, exchange and liquidation rights.
The depositary shares will be evidenced by depositary receipts issued under the deposit agreement. If you purchase interests in shares of the related series of preferred stock, you will receive depositary receipts as described in the applicable prospectus supplement. While the final depositary receipts are being prepared, we may order the depositary to issue temporary depositary receipts substantially identical to the final depositary receipts although not in final form. The holders of the temporary depositary receipts will be entitled to the same rights as if they held the depositary receipts in final form. Holders of the temporary depositary receipts can exchange them for the final depositary receipts at our expense.
Anti-takeover effects of our certificate of incorporation and by-laws and provisions of Delaware law
General
Certain provisions of our restated certificate of incorporation and amended and restated by-laws may delay or make more difficult acquisitions or changes of control of us that are not approved by our board of directors. These provisions could have the effect of discouraging third parties from making proposals involving an acquisition or change of control of the Company, although these kinds of proposals, if made, might be considered desirable by a majority of our stockholders. These provisions may also have the effect of making it more difficult for third parties to cause the replacement of our current management without the concurrence of our board of directors.
Number of Directors; Removal; Vacancies
Our restated certificate of incorporation provides that the number of our directors will be determined from time to time exclusively by a vote of a majority of the members of our board of directors then in office. Our restated certificate of incorporation also provides that, subject to the rights of the holders of any series of preferred stock then outstanding, our board of directors has the exclusive right to fill vacancies, including vacancies created by an increase in the number of directors. This provision could have the effect of discouraging a potential acquiror from attempting to obtain control of us. Our restated certificate of incorporation further provides that, subject to the rights of the holders of any series of preferred stock then outstanding, any director elected prior to our 2010 annual meeting of stockholders or any director appointed to fill a vacancy of any director elected prior to the 2010 annual meeting of stockholders may be removed from office at any time, but only for cause, and any other director may be removed from office at any time, with or without cause, in each case at a meeting called for that purpose and only by the affirmative vote of the holders of a majority of the voting power of all of the shares of our capital stock then entitled to vote in the election of directors. This provision, in conjunction with the provision authorizing our board of directors to fill vacant directorships, could prevent our stockholders from removing certain incumbent directors without cause and filling the resulting vacancies with their own nominees.
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Election of Directors
Our amended and restated by-laws provide that a nominee for director shall be elected to our board of directors if the votes cast for such nominee’s election exceed the votes cast against such nominee’s election; provided, however, that directors shall be elected by a plurality of the votes cast at any meeting of our stockholders for which (i) our Secretary receives a notice that a stockholder has nominated a person for election to our board of directors in compliance with the advance notice requirements for stockholder nominees set forth in our amended and restated by-laws and (ii) such nomination has not been withdrawn by such stockholder on or before the 10th day before the Company first mails its notice of meeting for such meeting to our stockholders. Our restated certificate of incorporation provides that, at each annual meeting of stockholders, all directors shall be elected for terms expiring at the next annual meeting of stockholders and until such director’s successor shall have been elected and qualified.
Special Meetings of Stockholders
Our amended and restated by-laws provide that special meetings of stockholders, for any purpose or purposes, may be called by our board of directors, the chairman of our board of directors or our chief executive officer.
Advance Notice for Raising Business or Making Nominations at Meetings
Our amended and restated by-laws provide that only such business may be conducted at an annual meeting of stockholders as has been (i) specified in the notice of meeting given by or at the direction of our board of directors, (ii) otherwise properly brought before the annual meeting by, or at the direction of, our board of directors, or (iii) otherwise properly brought before the annual meeting by a stockholder who has given to the Company’s Secretary timely written notice, in proper form, of the stockholder’s intention to bring that business before the meeting. Our amended and restated by-laws further provides that only persons who are nominated by, or at the direction of, our board of directors, or who are nominated by a stockholder who has given timely written notice, in proper form, to the Company’s Secretary prior to an annual meeting of stockholders or a special meeting called for the purpose of electing directors, are eligible for election as directors of the Company.
These provisions could make it more difficult for our stockholders to raise matters affecting control of the Company, including tender offers, business combinations or the election or removal of directors, for a stockholder vote.
Amendments to the Company’s By-laws
Our restated certificate of incorporation and amended and restated by-laws provide that our board of directors and our stockholders (by affirmative vote of the holders of at least a majority of the voting power of all of issued and outstanding shares of our capital stock entitled to vote thereon) may adopt, amend, alter, rescind or repeal the by-laws of the Company.
Amendment of the Company’s Certificate of Incorporation
Any proposal to amend, alter, change or repeal any provision of our restated certificate of incorporation requires approval by the affirmative vote of both a majority of the members of our board of directors then in office and a majority of the voting power of all of issued and outstanding shares of our capital stock entitled to vote thereon.
Company Preferred Stock and Additional Company Common Stock
Under our restated certificate of incorporation, our board of directors has the authority to provide by board resolution for the issuance of preferred shares in one or more series and to fix the terms and conditions of each such series. The authorized shares of preferred stock, as well as authorized but unissued shares of common stock, are available for issuance without further action by our stockholders, unless stockholder action is required by applicable law or the rules of the New York Stock Exchange or any other stock exchange on which any class or series of our stock may then be listed.
These provisions give the our board of directors the power to issue preferred stock, or additional shares of common stock, that could, depending on the terms of the stock, either impede or facilitate the completion of a merger, tender offer or other takeover attempt. For example, issuing new shares might impede a business combination if the terms of those shares include voting rights which enable a holder to block business combinations; alternatively, issuing new shares might facilitate a business combination if those shares have general voting rights sufficient to cause an applicable percentage vote requirement to be satisfied.
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Delaware Business Combination Statute
Under certain circumstances, Section 203 of the DGCL makes it more difficult for a person who would be an “interested stockholder” to effect various business combinations with a corporation for a three-year period. However our restated certificate of incorporation currently contains a provision pursuant to which the Company elects not to be governed by Section 203 of the DGCL.
Limitations on Directors’ Liability and Indemnification
Pursuant to authority conferred by Section 102 of the DGCL, Article SIXTH of the Company’s restated certificate of incorporation eliminates the personal liability of the Company’s directors to the Company or its stockholders for monetary damages for breach of fiduciary duty to the fullest extent permitted under the law of the State of Delaware, including the DGCL. Article SIXTH further provides that any future amendment to or repeal of its terms will not adversely affect any right or protection of any director of the Company with respect to acts or omissions of such director occurring prior to such repeal or amendment. Article SIXTH also incorporates any future amendments to Delaware law which further eliminate or limit the liability of directors.
In accordance with Section 145 of the DGCL, Article SEVENTH of the Company’s restated certificate of incorporation and certain provisions of the Company’s amended and restated by-laws grant the Company’s directors and officers a right to indemnification for all expenses relating to civil, criminal, administrative or investigative procedures to which they are a party (i) by reason of the fact that they are or were directors or officers of the Company or (ii) by reason of the fact that, while they are or were directors or officers of the Company, they are or were serving at the request of the Company as directors or officers of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan. Section 5 of Article VI of the Company’s amended and restated by-laws further provides for advancement of expenses to such indemnified persons.
The Company’s amended and restated by-laws authorize the Company to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Company would have the power to indemnify such person against such liability under the provisions of the Company’s amended and restated by-laws. The Company has obtained insurance policies insuring its directors and officers against certain liabilities.
The Company has entered into Indemnification Agreements (the “Indemnification Agreements”) with its directors and executive officers. One of the purposes of the Indemnification Agreements is to attempt to specify the extent to which persons entitled to indemnification thereunder (the “Indemnitees”) may receive indemnification. Pursuant to the Indemnification Agreements, an Indemnitee is entitled to indemnification for claims arising out of or in connection with the service of Indemnitee as a director or officer of the Company or of an affiliate. In the case of an action or proceeding other than an action by or in the right of the Company or CHS, the Indemnification Agreements provide that Indemnitee is entitled to indemnification for claims relating to (i) the fact that Indemnitee is or was an officer or director of the Company or any other entity which Indemnitee is or was or will be serving at the request of the Company or CHS, or (ii) anything done or not done by Indemnitee in any such capacity. In the case of an action by or in the right of the Company or CHS, the Indemnification Agreements provide that Indemnitee is entitled to indemnification for claims relating to (i) the fact that Indemnitee is or was an officer or director of the Company or any affiliate or (ii) anything done or not done in such capacity. The Indemnification Agreements are in addition to and are not intended to limit any rights of indemnification which are available under the Company’s restated certificate of incorporation or the Company’s amended and restated bylaws, or otherwise. In addition to the rights to indemnification specified therein, the Indemnification Agreements are intended to increase the certainty of receipt by the Indemnitee of the benefits to which he or she is entitled by providing specific procedures relating to indemnification.
We believe that our restated certificate of incorporation and amended and restated by-laws and insurance are necessary to attract and retain qualified persons as directors and officers.
The limitation of liability and indemnification provisions in our restated certificate of incorporation and amended and restated by-laws may discourage stockholders from bringing a lawsuit against directors for breach of their fiduciary duty. They may also reduce the likelihood of derivative litigation against directors and officers, even though an action, if successful, might benefit us and other stockholders. Furthermore, a stockholder’s investment may be adversely affected to the extent we pay the costs of settlement and damage awards against directors and officers as required or allowed by these indemnification provisions.
Forum Selection
Our amended and restated by-laws provide that, unless the Company consents in writing to the selection of an alternative forum, a state or federal court located within the State of Delaware will be the sole and exclusive forum for (i) any derivative action or
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proceeding brought on behalf of the Company, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Company to the Company or the Company’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law, or (iv) any action asserting a claim governed by the internal affairs doctrine.
Transfer Agent and Registrar
American Stock Transfer & Trust Company, LLC is the transfer agent and registrar for our common stock.
Listing
Our common stock is listed on the New York Stock Exchange under the symbol “CYH.”
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DESCRIPTION OF THE SECURITIES WARRANTS
This section describes the general terms and provisions of the securities warrants that we may offer by this prospectus. The applicable prospectus supplement will describe the specific terms of the securities warrants then offered, and the terms and provisions described in this section will apply only to the extent not superseded by the terms of the applicable prospectus supplement.
We may issue securities warrants for the purchase of senior debt securities, subordinated debt securities, preferred stock, depositary shares or common stock. Securities warrants may be issued alone or together with senior debt securities, subordinated debt securities, preferred stock, depositary shares or common stock offered by any prospectus supplement and may be attached to or separate from those securities. Each series of securities warrants will be issued under a warrant agreement between us and a bank or trust company, as warrant agent, which will be described in the applicable prospectus supplement. The warrant agent will act solely as our agent in connection with the securities warrants and will not act as an agent or trustee for any holders or beneficial holders of securities warrants.
If securities warrants for the purchase of senior debt securities, subordinated debt securities, preferred stock, depositary shares or common stock are offered, the applicable prospectus supplement will describe the terms of those securities warrants, including the following if applicable:
| • | the offering price; |
| • | the currencies in which the securities warrants are being offered; |
| • | the date on and after which the holder of the securities warrants can transfer them separately from any other securities that were offered in conjunction with the warrants; |
| • | the terms of the senior debt securities, subordinated debt securities, preferred stock, depositary shares or common stock into which the securities warrants are exercisable as previously described under “Description of the Debt Securities and Guarantees of Debt Securities” and “Description of the Capital Stock,” as applicable; |
| • | the date on which the right to exercise the securities warrants begins and the date on which the right expires; and |
| • | any other terms of the securities warrants. |
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General
We and/or one or more selling security holders may offer and sell securities in one or more transactions from time to time to or through underwriters, who may act as principals or agents, directly to other purchasers or through agents to other purchasers or through any combination of these methods.
A prospectus supplement relating to a particular offering of securities will include the following information, as applicable:
| • | the terms of the offering; |
| • | the names of any underwriters or agents; |
| • | the purchase price of the securities; |
| • | the net proceeds to us from the sale of the securities; |
| • | any delayed delivery arrangements; |
| • | any underwriting discounts and other items constituting underwriters’ compensation; |
| • | any initial public offering price; and |
| • | any discounts or concessions allowed or reallowed or paid to dealers. |
The distribution of the securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices.
Underwriting Compensation
We and/or one or more selling security holders may offer these securities to the public through underwriting syndicates represented by managing underwriters or through underwriters without an underwriting syndicate. If underwriters are used for the sale of securities, the securities will be acquired by the underwriters for their own account. The underwriters may resell the securities in one or more transactions, including in negotiated transactions at a fixed public offering price or at varying prices determined at the time of sale. In connection with any such underwritten sale of securities, underwriters may receive compensation from us or from purchasers for whom they may act as agents, in the form of discounts, concessions or commissions. Underwriters may sell securities to or through dealers, and the dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agents.
If we use an underwriter or underwriters in the sale of particular securities, we will execute an underwriting agreement with those underwriters at the time of sale of those securities. The names of the underwriters will be set forth in the prospectus supplement used by the underwriters to sell those securities. Unless otherwise indicated in the prospectus supplement relating to a particular offering of securities, the obligations of the underwriters to purchase the securities will be subject to customary conditions precedent and the underwriters will be obligated to purchase all of the securities offered if any of the securities are purchased.
Underwriters, dealers and agents that participate in the distribution of securities may be deemed to be underwriters under the Securities Act. Any discounts or commissions received by them and any profit realized by them on the resale of securities may be deemed to be underwriting discounts and commissions under the Securities Act.
Indemnification
We may enter agreements under which underwriters, dealers and agents who participate in the distribution of securities may be entitled to indemnification by us against various liabilities, including liabilities under the Securities Act, and to contribution with respect to payments which the underwriters, dealers or agents may be required to make.
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Related Transactions
Various of the underwriters, dealers and agents who participate in the distribution of securities, and their affiliates, may perform various commercial banking and investment banking services for us from time to time in the ordinary course of business.
Delayed Delivery Contracts
We may authorize underwriters or other persons acting as our agents to solicit offers by institutions to purchase securities from us pursuant to contracts providing for payment and delivery on a future date. These institutions may include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and others, but in all cases we must approve these institutions. The obligations of any purchaser under any of these contracts will be subject to the condition that the purchase of the securities will not at the time of delivery be prohibited under the laws of the jurisdiction to which such purchaser is subject. The underwriters and other agents will not have any responsibility in respect of the validity or performance of these contracts.
Price Stabilization and Short Positions
If underwriters or dealers are used in the sale, until the distribution of the securities is completed, rules of the SEC may limit the ability of any underwriters to bid for and purchase the securities. As an exception to these rules, representatives of any underwriters are permitted to engage in transactions that stabilize the price of the securities. These transactions may consist of bids or purchases for the purpose of pegging, fixing or maintaining the price of the securities. If the underwriters create a short position in the securities in connection with the offering (that is, if they sell more securities than are set forth on the cover page of the prospectus supplement) the representatives of the underwriters may reduce that short position by purchasing securities in the open market.
We make no representation or prediction as to the direction or magnitude of any effect that the transactions described above may have on the price of the securities. In addition, we make no representation that the representatives of any underwriters will engage in these transactions or that these transactions, once commenced, will not be discontinued without notice.
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Unless otherwise specified in the applicable prospectus supplement, certain legal matters regarding the validity of the securities offered hereby will be passed upon for us by Hodgson Russ LLP, New York, New York and by Bass, Berry & Sims PLC, Nashville, Tennessee, with respect to matters of Delaware and Tennessee law. Unless otherwise specified in the applicable prospectus supplement, certain matters under Alabama, Mississippi and North Carolina law will be passed upon for us by Bradley Arant Boult Cummings LLP.; certain matters under Arkansas law will be passed upon for us by Kutak Rock LLP; certain matters under Arizona law will be passed upon for us by Snell & Wilmer L.L.P; certain matters under Florida law will be passed upon for us by Buchanan Ingersoll & Rooney PC | Fowler White Boggs; certain matters under Georgia law will be passed upon for us by King & Spalding LLP; certain matters under Illinois law will be passed upon for us by McGuireWoods LLP; certain matters under Indiana, Kentucky and Ohio law will be passed upon for us by Bingham Greenebaum Doll LLP; certain matters under Missouri law will be passed upon for us by Husch Blackwell LLP; certain matters under New Jersey, Pennsylvania and Utah law will be passed upon for us by Ballard Spahr LLP; certain matters under New Mexico law will be passed upon for us by Montgomery & Andrews, P.A; certain matters under Nevada law will be passed upon for us by Bailey Kennedy, LLP; certain matters under Oklahoma law will be passed upon for us by McAfee & Taft A Professional Corporation; certain matters under South Carolina law will be passed upon for us by Parker Poe Adams & Bernstein LLP; certain matters under Texas law will be passed upon for us by Liechty & McGinnis, LLP; certain matters under Virginia law will be passed upon for us by Hancock, Daniel, Johnson & Nagle, P.C.; certain matters under Washington law will be passed upon for us by Witherspoon, Kelley, Davenport & Toole, P.S.; certain matters under West Virginia law will be passed upon for us by Steptoe & Johnson PLLC; and certain matters under Wyoming law will be passed upon for us by Crowley Fleck PLLP.
The consolidated financial statements, and the related financial statement schedule, incorporated in this prospectus by reference from Community Health Systems, Inc.’s Annual Report on Form 10-K, and the effectiveness of Community Health System, Inc. and its subsidiaries’ internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports, which are incorporated herein by reference. Such financial statements and financial statement schedule have been so incorporated in reliance upon the reports of such firm given upon their authority as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 14. | Other Expenses of Issuance and Distribution |
The following is a statement of the estimated expenses, to be paid solely by the registrant, of the issuance and distribution of the securities being registered hereby:
| Amount To be Paid |
||||
| SEC registration fee |
$ | (1 | ) | |
| Printing and engraving expenses |
$ | (2 | ) | |
| Accounting fees and expenses |
$ | (2 | ) | |
| Legal fees and expenses |
$ | (2 | ) | |
| Rating agency fees and expenses |
$ | (2 | ) | |
| Trustee’s fees and expenses |
$ | (2 | ) | |
| Miscellaneous expenses |
$ | (2 | ) | |
|
|
|
|||
| Total |
$ | (2 | ) | |
|
|
|
|||
| (1) | In accordance with Rules 456(b) and 457(r), we are deferring payment of the registration fee. |
| (2) | As the amount of securities to be issued, offered and sold pursuant to this registration statement is indeterminate, the actual amount of such fees and expenses cannot be estimated at this time. An estimate of the aggregate amount of these expenses will be reflected in the applicable prospectus supplement. |
| Item 15. | Indemnification of Directors and Officers |
Pursuant to authority conferred by Section 102 of the DGCL, Article SIXTH of the Company’s restated certificate of incorporation eliminates the personal liability of the Company’s directors to the Company or its stockholders for monetary damages for breach of fiduciary duty to the fullest extent permitted under the law of the State of Delaware, including the DGCL. Article SIXTH further provides that any future amendment to or repeal of its terms will not adversely affect any right or protection of any director of the Company with respect to acts or omissions of such director occurring prior to such repeal or amendment. Article SIXTH also incorporates any future amendments to Delaware law which further eliminate or limit the liability of directors.
In accordance with Section 145 of the DGCL, Article SEVENTH of the Company’s restated certificate of incorporation and certain provisions of the Company’s amended and restated by-laws grant the Company’s directors and officers a right to indemnification for all expenses relating to civil, criminal, administrative or investigative procedures to which they are a party (i) by reason of the fact that they are or were directors or officers of the Company or (ii) by reason of the fact that, while they are or were directors or officers of the Company, they are or were serving at the request of the Company as directors or officers of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan. Section 5 of Article VI of the Company’s amended and restated by-laws further provides for advancement of expenses to such indemnified persons.
The Company’s amended and restated by-laws authorize the Company to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Company would have the power to indemnify such person against such liability under the provisions of the Company’s amended and restated by-laws. The Company has obtained insurance policies insuring its directors and officers against certain liabilities.
The Company has entered into Indemnification Agreements (the “Indemnification Agreements”) with its directors and executive officers. One of the purposes of the Indemnification Agreements is to attempt to specify the extent to which persons entitled to indemnification thereunder (the “Indemnitees”) may receive indemnification. Pursuant to the Indemnification Agreements, an Indemnitee is entitled to indemnification for claims arising out of or in connection with the service of Indemnitee as a director or officer of the Company or of an affiliate. In the case of an action or proceeding other than an action by or in the right of the Company or CHS, the Indemnification Agreements provide that Indemnitee is entitled to indemnification for claims relating to (i) the fact that Indemnitee is or was an officer or director of the Company or any other entity which Indemnitee is or was or will be serving at the request of the Company or CHS, or (ii) anything done or not done by Indemnitee in any such capacity. In the case of an action by or in the right of the
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Company or CHS, the Indemnification Agreements provide that Indemnitee is entitled to indemnification for claims relating to (i) the fact that Indemnitee is or was an officer or director of the Company or any affiliate or (ii) anything done or not done in such capacity. The Indemnification Agreements are in addition to and are not intended to limit any rights of indemnification which are available under the Company’s restated certificate of incorporation or the Company’s amended and restated bylaws, or otherwise. In addition to the rights to indemnification specified therein, the Indemnification Agreements are intended to increase the certainty of receipt by the Indemnitee of the benefits to which he or she is entitled by providing specific procedures relating to indemnification.
The following is a summary of the statutes, charter and bylaw provisions or other arrangements under which the registrants’ directors and officers are indemnified against liability in their capacities as such.
Alabama Registrants
Anniston HMA LLC, Centre Hospital Corporation, Foley Hospital Corporation, Fort Payne Hospital Corporation, Greenville Hospital Corporation and QHG of Enterprise, Inc. are all incorporated or organized under the laws of the State of Alabama.
Section 10A-5-1.04 of the Alabama Limited Liability Company Law (repealed effective January 1, 2017) currently permits, unless the certificate of formation provides otherwise, a limited liability company to (i) indemnify a member, manager or employee or former member, manager or employee of the limited liability company against expenses actually and reasonably incurred in connection with the defense of an action, suit or proceeding, in which such person is made a party by reason of being or having been a member, manager or employee of the limited liability company, except in relation to matters as to which such person is determined to be liable for negligence or misconduct in the performance of duty; and (ii) to make any other indemnification that is authorized by its governing documents or by resolution by the members.
Section 10A-2-8.51 and Section 10A-2-8.56 of the Alabama Business Corporation Law allows corporations to indemnify an individual made a party to a proceeding because he or she is or was a director, officer, employee or agent against liability incurred in the proceeding if: (i) the individual conducted himself or herself in good faith; (ii) the individual reasonably believed, in the case of conduct in official capacity with the corporation, that the conduct was in its best interests and in all other cases, that the conduct was at least not opposed to its best interests; and (iii) in the case of any criminal proceeding, the individual had no reasonable cause to believe his or her conduct was unlawful. A corporation may not indemnify a director, officer, employee or agent if, in connection with a proceeding by or in the right of the corporation, the individual was adjudged liable to the corporation or, in connection with any other proceeding charging improper personal benefit, the individual was adjudged liable on the basis that personal benefit was improperly received by him or her.
Section 10A-2-8.52 and Section 10A-2-8.56 of the Alabama Business Corporation Law requires corporations to indemnify a director or officer who was successful in the defense of any proceeding, or any claim, issue or matter in the proceeding, where he or she was a party because he or she is or was a director or officer of the corporation, against reasonable expenses incurred in connection therewith.
The Operating Agreement of Anniston HMA, LLC provides for the indemnification of any officer or director of the company against liability incurred in connection with any and all claims and demands arising by reason of the fact that such person is or was a director or officer of the company, or is or was serving at the request of the company, provided the director or officer acted in good faith with the care an officer of an Alabama corporation would exercise under similar circumstances, in a manner reasonably believed by them to be in the best interests of the Company, and, with respect to any criminal proceeding had no reasonable cause to believe his or her conduct was unlawful.
The Articles of Incorporation of each of Centre Hospital Corporation, Foley Hospital Corporation, Fort Payne Hospital Corporation and Greenville Hospital Corporation provide for the indemnification of directors and officers, as well as agents and employees if authorized by the Board of Directors, to the fullest extent permitted by the Alabama Business Corporation Act.
The bylaws of each of Centre Hospital Corporation, Foley Hospital Corporation, Fort Payne Hospital Corporation and Greenville Hospital Corporation provide for the indemnification of directors and officers and agents to the fullest extent permitted by the Alabama Business Corporation Act.
The bylaws of QHG of Enterprise, Inc. provide for the indemnification of directors and officers to the fullest extent permitted by the laws of the state in which indemnification is sought.
Arizona Registrants
Bullhead City Hospital Corporation and Payson Hospital Corporation are incorporated under the laws of the State of Arizona.
Section 10-851 of the Arizona Business Corporations Act (“ABCA”) permits a corporation to indemnify an individual made a party to a proceeding because the individual is or was a director against liability incurred in the proceeding if all of the following
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conditions exist: (a) the individual’s conduct was in good faith; (b) the individual reasonably believed in the case of conduct in an official capacity with the corporation, that the conduct was in its best interests and in all other cases, that the conduct was at least not opposed to its best interests; and (c) in the case of any criminal proceedings, the individual had no reasonable cause to believe the conduct was unlawful. Section 10-851 also permits a corporation to indemnify an individual made a party to a proceeding because the director engaged in conduct for which broader indemnification has been made permissible or obligatory under a provision of the articles of incorporation pursuant to section 10-202, subsection B, paragraph 2 of the Arizona Revised Statutes. The termination of a proceeding by judgment, order, settlement or conviction or on a plea of no contest or its equivalent is not of itself determinative that the director did not meet the standard of conduct described in this section. Under Arizona Revised Statutes, a corporation may not indemnify a director under this section either: (a) in connection with a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation or (b) in connection with any other proceeding charging improper financial benefit to the director, whether or not involving action in the director’s official capacity, in which the director was adjudged liable on the basis that financial benefit was improperly received by the director. Indemnification permitted under this section in connection with a proceeding by or in the right of the corporation is limited to reasonable expenses incurred in connection with the proceeding.
Under Section 10-856 of the ABCA, a corporation may indemnify and advance expenses to an officer of the corporation who is a party to a proceeding because the individual is or was an officer of the corporation: (1) to the same extent as a director and (2) if the individual is an officer but not a director, or if the officer is also a director, but the basis on which the officer is made a party to the proceeding is an act or omission solely as an officer, to the further extent as may be provided by the articles of incorporation, the bylaws, a resolution of the board of directors, or a contract, except for (a) liability in connection with a proceeding by or in the right of the corporation other than for reasonable expenses incurred in connection with the proceeding and (b) liability arising out of conduct that constitutes (i) receipt of a financial benefit to which the officer is not entitled, (ii) an intentional infliction of harm on the corporation or the shareholders, or (iii) an intentional violation of criminal law.
Under the ABCA, in order for a corporation to indemnify a director or officer, except in a case where such indemnification is mandatory or upon a court order as described below, a majority of the corporation’s disinterested directors, special legal counsel, or the disinterested shareholders must find that the individual met the applicable standard of conduct. Indemnification under the ABCA is permissive, except in the event of a successful defense, in which case a director or officer must be indemnified against reasonable expenses incurred in connection with the proceeding unless such indemnification is limited by the articles of incorporation. In addition, the ABCA requires Arizona corporations to indemnify any “outside director” (a director who is not an officer, employee or holder of more than five percent of any class of the corporation’s stock or the stock of any affiliate of the corporation) against liability unless (i) the corporation’s articles of incorporation limit such indemnification, (ii) the director is adjudged liable in a proceeding for which indemnification is not allowed as described in the first paragraph above, or (iii) a court determines, before payment to the outside director, that the director failed to meet the applicable standard of conduct as described in the first paragraph above. With certain limitations, a court may also order that an individual be indemnified if the court finds that the individual is fairly and reasonably entitled to indemnification in view of all of the relevant circumstances, whether or not the individual has met the applicable standard of conduct or was adjudged liable as described in the first paragraph above.
The bylaws of each of Bullhead City Hospital Corporation and Payson Hospital Corporation provide for the indemnification of directors and officers to the fullest extent permitted by the Arizona Revised Statutes.
Arkansas Registrants
Forrest City Arkansas Hospital Company, LLC, Forrest City Hospital Corporation, Fort Smith HMA, LLC, MCSA, L.L.C., Phillips Hospital Corporation, QHG of Springdale, Inc., Triad-El Dorado, Inc. and Van Buren H.M.A., LLC are all incorporated or organized under the laws of the State of Arkansas.
Section 4-32-404 of Arkansas’ Small Business Entity Tax Pass Through Act provides that a limited liability company’s operating agreement may: (a) eliminate or limit the personal liability of a member or manager for monetary damages for breach of any duty provided for in Section 4-32-402 and (b) provide for indemnification of a member or manager for judgments, settlements, penalties, fines, or expenses incurred in a proceeding to which a person is a party because the person is or was a member or manager.
Section 4-27-850 of the Arkansas 1987 Business Corporation Act allows a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee, or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit, or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
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The Operating Agreement of Forrest City Arkansas Hospital Company, LLC provides, to the fullest extent authorized by Arkansas’ Small Business Entity Tax Pass Through Act, the company shall indemnify, save harmless, and pay all judgments and claims against a member of the company relating to any liability or damage incurred by reason of: (i) ownership of an interest in the Company, and (ii) any act performed or omitted to be performed by such member in connection with the business of the Company, in any case including attorneys’ fees incurred by the member in connection with the defense of any action based on any of the foregoing.
The Amended and Restated Limited Liability Company Agreements of Fort Smith HMA, LLC and Van Buren H.M.A., LLC and the Third Amended and Restated Operating Agreement of MCSA, L.L.C. provide for the indemnification of any officer or director of the company from and against any and all reasonable expenses (including reasonable attorneys’ fees), judgments, taxes, penalties, fines, (including any excise tax assessed with respect to an employee benefit plan) and amounts paid in settlement incurred by such person in connection with defending any threatened, pending, or completed action, suit or proceeding (whether civil, criminal, administrative or investigative, and whether formal or informal) to which such person is, or is threatened to be made, a party because such person is or was a director or officer of the company, or is or was serving at the request of the company as a director, officer, partner, member, employee or agent of another domestic or foreign corporation, partnership, limited liability company, joint venture, trust or other enterprise, including service with respect to employee benefit plans, provided the director or officer has acted in good faith with the care an officer of an Arkansas corporation of like position would exercise under similar circumstances, and in a manner reasonably believed by them to be in the best interests of the Company, and with respect to any criminal proceeding, had no reasonable cause to believe their conduct was unlawful.
The bylaws of Forrest City Hospital Corporation and Phillips Hospital Corporation provide that each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding by reason of the fact that he or she was a director, officer or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, whether the basis of such suit or proceeding is alleged action in an official capacity as a director, officer, employee or agent, shall be indemnified and held harmless by the corporation to the fullest extent authorized by the Arkansas Business Corporation Act, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the corporation to provide broader indemnification rights than permitted prior thereto), against all expense, liability and loss (including attorney’s fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such person in connection therewith, and such indemnifications shall continue with respect to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the person’s heirs, executors and administrators; provided, however, that, except as otherwise provided with respect to suits or proceedings to enforce rights to indemnification, the corporation shall indemnify any such person only if such suit or proceeding (or part thereof) was authorized by the board of directors of the corporation. The right to indemnification conferred in this section shall be a contract right and shall include the right to be paid by the corporation the expenses incurred in defending any such suit or proceeding in advance of its final disposition (hereinafter an “advancement of expenses”); provided, however, that, if the Arkansas Business Corporation Act requires, an advancement of expenses incurred by a person shall be made only upon delivery to the corporation of an undertaking (hereinafter an “undertaking”), by or on behalf of such person, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that such person is not entitled to be indemnified for such expenses under this section or otherwise.
The bylaws of QHG of Springdale, Inc. state that the corporation shall indemnify each present and future director and officer and any person who may serve at its request as a director or officer of another corporation to the extent required and to the extent permitted by the laws of the state in which indemnification is sought.
The bylaws of Triad–El Dorado, Inc. generally provide that the corporation shall indemnify its officers and directors against all reasonable expense incurred by them in defending claims or suits, irrespective of the time of occurrence of the claims or causes of action in such suits, made or brought against them as officers or directors of the corporation, and against all liability in such suits, except in such cases as involve gross negligence or willful misconduct in the performance of their duties.
Delaware Registrants
CHS/Community Health Systems, Inc., Community Health Systems, Inc., Abilene Hospital, LLC, Abilene Merger, LLC, Affinity Health Systems, LLC, Affinity Hospital, LLC, Berwick Hospital Company, LLC, Birmingham Holdings, LLC, Birmingham Holdings II, LLC, Bluefield Holdings, LLC, Bluefield Hospital Company, LLC, Blue Island Hospital Company, LLC, Blue Island Illinois Holdings, LLC, Bluffton Health System LLC, Brownwood Hospital, L.P., Brownwood Medical Center, LLC, Bullhead City Hospital Investment Corporation, Carlsbad Medical Center, LLC, Carolinas JV Holdings General, LLC, Carolinas JV Holdings, L.P., Central Florida HMA Holdings, LLC, Central States HMA Holdings, LLC, CHHS Holdings, LLC, CHS Kentucky Holdings, LLC, CHS Pennsylvania Holdings, LLC, CHS Virginia Holdings, LLC, CHS Washington Holdings, LLC, Clarksville Holdings, LLC, Clarksville Holdings II, LLC, Cleveland Tennessee Hospital Company, LLC, College Station Hospital, L.P., College Station Medical Center, LLC,
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College Station Merger, LLC, Community GP Corp., Community Health Investment Company, LLC, Community LP Corp., CP Hospital GP, LLC, CPLP, LLC, Crestwood Hospital, LLC, Crestwood Hospital LP, LLC, CSMC, LLC, CSRA Holdings, LLC, Deaconess Holdings, LLC, Deaconess Hospital Holdings, LLC, Desert Hospital Holdings, LLC, Detar Hospital, LLC, DHFW Holdings, LLC, DHSC, LLC, Dukes Health System, LLC, Fallbrook Hospital Corporation, Florida HMA Holdings, LLC, Gadsden Regional Medical Center, LLC, GRMC Holdings, LLC, Hallmark Healthcare Company, LLC, Health Management Associates, Inc., Health Management Associates, LP, Health Management General Partner I, LLC, Health Management General Partner, LLC, HMA Hospitals Holdings, LP, HMA Services GP, LLC, Hobbs Medco, LLC, Hospital of Barstow, Inc., Kirksville Hospital Company, LLC, Lancaster Hospital Corporation, Las Cruces Medical Center, LLC, Lea Regional Hospital, LLC, Longview Clinic Operations Company, LLC, Longview Medical Center, L.P., Longview Merger, LLC, LRH, LLC, Lutheran Health Network of Indiana, LLC, Massillon Community Health System LLC, Massillon Health System LLC, Massillon Holdings, LLC, McKenzie Tennessee Hospital Company, LLC, Medical Center of Brownwood, LLC, Merger Legacy Holdings, LLC, Mesquite HMA General, LLC, Mississippi HMA Holdings I, LLC, Mississippi HMA Holdings II, LLC, MMC of Nevada, LLC, Moberly Hospital Company, LLC, MWMC Holdings, LLC, Natchez Hospital Company, LLC, National Healthcare of Leesville, Inc., National Healthcare of Mt. Vernon, Inc., Navarro Hospital, L.P., Navarro Regional, LLC, Northampton Hospital Company, LLC, Northwest Arkansas Hospitals, LLC, Northwest Hospital, LLC, NOV Holdings, LLC, NRH, LLC, Oro Valley Hospital, LLC, Palmer-Wasilla Health System, LLC, Pennsylvania Hospital Company, LLC, Phoenixville Hospital Company, LLC, Pottstown Hospital Company, LLC, QHG Georgia Holdings II, LLC, QHG of Bluffton Company, LLC, QHG of Fort Wayne Company, LLC, Quorum Health Resources, LLC, Regional Hospital of Longview, LLC, Ruston Hospital Corporation, Ruston Louisiana Hospital Company, LLC, SACMC, LLC, San Angelo Community Medical Center, LLC, San Angelo Medical, LLC, Scranton Holdings, LLC, Scranton Hospital Company, LLC, Scranton Quincy Holdings, LLC, Scranton Quincy Hospital Company, LLC, Sharon Pennsylvania Holdings, LLC, Sharon Pennsylvania Hospital Company, LLC, Siloam Springs Arkansas Hospital Company, LLC, Siloam Springs Holdings, LLC, Southeast HMA Holdings, LLC, Southern Texas Medical Center, LLC, Southwest Florida HMA Holdings, LLC, Spokane Valley Washington Hospital Company, LLC, Spokane Washington Hospital Company, LLC, Tennessee HMA Holdings, LP, Tennyson Holdings, LLC, Tomball Texas Holdings, LLC, Tomball Texas Hospital Company, LLC, Triad Healthcare Corporation, Triad Holdings III, LLC, Triad Holdings IV, LLC, Triad Holdings V, LLC, Triad Nevada Holdings, LLC, Triad of Alabama, LLC, Triad of Oregon, LLC, Triad-ARMC, LLC, Triad-Navarro Regional Hospital Subsidiary, LLC, Tunkhannock Hospital Company, LLC, VHC Medical, LLC, Vicksburg Healthcare, LLC, Victoria Hospital, LLC, Victoria of Texas, L.P., Warren Ohio Hospital Company, LLC, Warren Ohio Rehab Hospital Company, LLC, Watsonville Hospital Corporation, Webb Hospital Corporation, Webb Hospital Holdings, LLC, Wesley Health System LLC, West Grove Hospital Company, LLC, WHMC, LLC, Wilkes-Barre Behavioral Hospital Company, LLC, Wilkes-Barre Holdings, LLC, Wilkes-Barre Hospital Company, LLC, Women & Children’s Hospital, LLC, Woodland Heights Medical Center, LLC, Woodward Health System, LLC, York Pennsylvania Holdings, LLC, York Pennsylvania Hospital Company, LLC and Youngstown Ohio Hospital Company, LLC are all incorporated or organized under the laws of the State of Delaware.
Section 17-108 of the Delaware Revised Uniform Limited Partnership Act provides that a partnership may, and shall have the power to, indemnify and hold harmless any partner or other person from and against any and all claims and demands whatsoever.
Section 18-108 of the Delaware Limited Liability Company Act provides that a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever.
Section 145 of the Delaware General Corporation Law, or the DGCL, provides that a corporation may indemnify any person, including an officer or director, who was or is, or is threatened to be made, a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of such corporation, and, with respect to any criminal actions and proceedings, had no reasonable cause to believe that his conduct was unlawful. A Delaware corporation may indemnify any person, including an officer or director, who was or is, or is threatened to be made, a party to any threatened, pending or contemplated action or suit by or in the right of such corporation, under the same conditions, except that such indemnification is limited to expenses (including attorneys’ fees) actually and reasonably incurred by such person, and except that no indemnification is permitted without judicial approval if such person is adjudged to be liable to such corporation. Where an officer or director of a corporation is successful, on the merits or otherwise, in the defense of any action, suit or proceeding referred to above, or any claim, issue or matter therein, the corporation must indemnify that person against the expenses (including attorneys’ fees) which such officer or director actually and reasonably incurred in connection therewith.
The Limited Partnership Agreements of each of Brownwood Hospital, L.P., College Station Hospital, L.P., Longview Medical Center, L.P., Navarro Hospital, L.P., and Victoria of Texas, L.P. provide, to the fullest extent authorized by the Delaware Revised Uniform Limited Partnership Act, for the indemnification of the General Partner of the companies from and against any and all claims
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and demands arising by reason of the fact that such person is, or was, General Partner of the companies. The Limited Partnership Agreement of Longview Medical Center, L.P. provides for the indemnification of the General Partner from any liability or damage incurred or suffered by the General Partner in connection with any act or omission in connection with the partnership’s business, except for any act or omission constituting willful misconduct or gross negligence. The Limited Partnership Agreements of Carolinas JV Holdings, L.P., Health Management Associates, LP, HMA Hospitals Holdings, LP and Tennessee HMA Holdings, LP are silent as to indemnification.
The Limited Liability Company Agreements of each of Abilene Hospital, LLC, Abilene Merger, LLC, Affinity Hospital, LLC, Birmingham Holdings, LLC, Bluffton Health System LLC, Brownwood Medical Center, LLC, Carlsbad Medical Center, LLC, Clarksville Holdings, LLC, College Station Medical Center, LLC, College Station Merger, LLC, CP Hospital GP, LLC, CPLP, LLC, Crestwood Hospital, LLC, Crestwood Hospital LP, LLC, CSMC, LLC, CSRA Holdings, LLC, Deaconess Holdings, LLC, Deaconess Hospital Holdings, LLC, Desert Hospital Holdings, LLC, Detar Hospital, LLC, DHSC, LLC, Dukes Health System, LLC, Gadsden Regional Medical Center, LLC, GRMC Holdings, LLC, Hobbs Medco, LLC, Las Cruces Medical Center, LLC, Lea Regional Hospital, LLC, Longview Merger, LLC, LRH, LLC, Lutheran Health Network of Indiana, LLC, Massillon Health System LLC, Medical Center of Brownwood, LLC, MMC of Nevada, LLC, Navarro Regional, LLC, Northwest Hospital, LLC, NOV Holdings, LLC, NRH, LLC, Oro Valley Hospital, LLC, Palmer-Wasilla Health System, LLC, Regional Hospital of Longview, LLC, Ruston Louisiana Hospital Company, LLC, SACMC, LLC, San Angelo Community Medical Center, LLC, San Angelo Medical, LLC, Southern Texas Medical Center, LLC, Triad Holdings III, LLC, Triad Holdings IV, LLC, Triad Holdings V, LLC, Triad of Alabama, LLC, Triad of Oregon, LLC, Triad-ARMC, LLC, Triad-Navarro Regional Hospital Subsidiary, LLC, VHC Medical, LLC, Vicksburg Healthcare, LLC, Victoria Hospital, LLC, Wesley Health System LLC, WHMC, LLC, Women & Children’s Hospital, LLC, Woodland Heights Medical Center, LLC and Woodward Health System, LLC, provide, to the fullest extent authorized by the Delaware Limited Liability Company Act, for the indemnification of any member, manager, director, officer or employee of the companies, as applicable, from and against any and all claims and demands arising by reason of the fact that such person is, or was, a member, manager, officer, director or employee of the companies, as applicable.
The Limited Liability Company Agreements of each of Affinity Health Systems, LLC, Berwick Hospital Company, LLC, Birmingham Holdings II, LLC, Bluefield Holdings, LLC, Bluefield Hospital Company, LLC, Blue Island Hospital Company, LLC, Blue Island Illinois Holdings, LLC, Carolinas JV Holdings General, LLC, Central Florida HMA Holdings, LLC, Central States HMA Holdings, LLC, CHHS Holdings, LLC, CHS Kentucky Holdings, LLC, CHS Pennsylvania Holdings, LLC, CHS Virginia Holdings, LLC, CHS Washington Holdings, LLC, Clarksville Holdings II, LLC, Cleveland Tennessee Hospital Company, LLC, Community Health Investment Company, LLC, DHFW Holdings, LLC, Florida HMA Holdings, LLC Hallmark Healthcare Company, LLC, Health Management General Partner I, LLC, Health Management General Partner, LLC, HMA Services GP, LLC, Kirksville Hospital Company, LLC, Longview Clinic Operations Company, LLC, Massillon Community Health System LLC, Massillon Holdings, LLC, McKenzie Tennessee Hospital Company, LLC, Merger Legacy Holdings, LLC, Mesquite HMA General, LLC, Mississippi HMA Holdings I, LLC, Mississippi HMA Holdings II, LLC, Moberly Hospital Company, LLC, MWMC Holdings, LLC, Natchez Hospital Company, LLC, Northampton Hospital Company, LLC, Northwest Arkansas Hospitals, LLC, Pennsylvania Hospital Company, LLC, Phoenixville Hospital Company, LLC, Pottstown Hospital Company, LLC, QHG Georgia Holdings II, LLC, QHG of Bluffton Company, LLC, QHG of Fort Wayne Company, LLC, Quorum Health Resources, LLC, Scranton Holdings, LLC, Scranton Hospital Company, LLC, Scranton Quincy Holdings, LLC, Scranton Quincy Hospital Company, LLC, Sharon Pennsylvania Holdings, LLC, Sharon Pennsylvania Hospital Company, LLC, Siloam Springs Arkansas Hospital Company, LLC, Siloam Springs Holdings, LLC, Southeast HMA Holdings, LLC, Southwest Florida HMA Holdings, LLC, Spokane Valley Washington Hospital Company, LLC, Spokane Washington Hospital Company, LLC, Tennyson Holdings, LLC, Tomball Texas Holdings, LLC, Tomball Texas Hospital Company, LLC, Triad Nevada Holdings, LLC, Tunkhannock Hospital Company, LLC, Warren Ohio Hospital Company, LLC, Warren Ohio Rehab Hospital Company, LLC, Webb Hospital Holdings, LLC, West Grove Hospital Company, LLC, Wilkes-Barre Behavioral Hospital Company, LLC, Wilkes-Barre Holdings, LLC, Wilkes-Barre Hospital Company, LLC, York Pennsylvania Holdings, LLC, York Pennsylvania Hospital Company, LLC, and Youngstown Ohio Hospital Company, LLC provide for the indemnification of any officer or director of the companies from and against any and all claims and demands arising by reason of the fact that such person is or was a director or officer of the company, or is or was serving at the request of the company, provided the director or officer has acted in good faith, in a manner reasonably believed by them to be in the best interests of the Company, and has no reasonable cause to believe their conduct was unlawful.
The Bylaws and/or Certificate of Incorporation of Community Health Systems, Inc., CHS/Community Health Systems, Inc., Bullhead City Hospital Investment Corporation, Community GP Corp., Community LP Corp., Fallbrook Hospital Corporation, Health Management Associates, Inc., Hospital of Barstow, Inc., Lancaster Hospital Corporation, National Healthcare of Leesville, Inc., National Healthcare of Mt. Vernon, Inc., Ruston Hospital Corporation, Triad Healthcare Corporation, Watsonville Hospital Corporation, and Webb Hospital Corporation provide for the indemnification of all current and former directors and officers to the fullest extent permitted by the DGCL.
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Florida Registrants
Bartow HMA, LLC, Brevard HMA Holdings, LLC, Brevard HMA Hospitals, LLC, Citrus HMA, LLC, HMA Santa Rosa Medical Center, LLC, Hospital Management Associates, LLC, Hospital Management Services of Florida, LP, Key West HMA, LLC, Lehigh HMA, LLC, Melbourne HMA, LLC, Naples, HMA, LLC, Port Charlotte HMA, LLC, Punta Gorda HMA, LLC, Rockledge HMA, LLC, Sebastian Hospital, LLC, Sebring Hospital Management Associates, LLC and Venice HMA, LLC are incorporated or organized under the laws of the State of Florida.
Section 620.1406 of the Florida Revised Uniform Limited Partnership Act of 2005 (“FRULPA”) states that a limited partnership shall reimburse a general partner for payments made and indemnify a general partner for liabilities incurred by the general partner in the ordinary course of activities of the partnership or for the preservation of its activities or property if such payments were made or such liabilities were incurred in good faith and either in the furtherance of the limited partnership’s purposes or the ordinary scope of its activities.
Section 605.0408 of the Florida Revised Limited Liability Act permits a limited liability company to indemnify and hold harmless a person with respect to a claim or demand against the person and a debt, obligation, or other liability incurred by the person by reason of the person’s former or present capacity as a member or manager if the claim, demand, debt, obligation, or other liability does not arise from the person’s breach of Sections 605.0405 (limitations on distributions), 605.0407 (management of limited liability company), 605.04071 (delegation of rights and powers to manage), 605.04072 (selection and terms of managers in a manager-managed limited liability company), 605.04073 (voting rights of members and managers), 605.04074 (agency rights of members and managers), or 605.04091 (standards of conduct for members and managers). Pursuant to Section 605.0105(3) of the Florida Revised Limited Liability Company Act, a limited liability company’s operating agreement may not provide for indemnification for a member or manager under Section 605.0408 for any of the following: (i) conduct involving bad faith, willful or intentional misconduct, or a knowing violation of law; (ii) a transaction from which the member or manager derived an improper personal benefit; (iii) a circumstance under which the liability provisions of s. 605.0406 are applicable; (iv) a breach of duties or obligations under Section 605.04091, taking into account a variation of such duties and obligations provided for in the operating agreement to the extent allowed by Section 605.0105(4).
The Limited Partnership Agreement of Hospital Management Services of Florida, LP is silent with respect to indemnification.
The Operating Agreements of each of Bartow HMA, LLC, Brevard HMA Holdings, LLC, Brevard HMA Hospitals, LLC, Citrus HMA, LLC, HMA Santa Rosa Medical Center, LLC, Hospital Management Associates, LLC, Key West HMA, LLC, Lehigh HMA, LLC, Melbourne HMA, LLC, Naples, HMA, LLC, Port Charlotte HMA, LLC, Punta Gorda HMA, LLC, Rockledge HMA, LLC, Sebastian Hospital, LLC, Sebring Hospital Management Associates, LLC and Venice HMA, LLC provide for the indemnification of any officer or manager of the companies from and against any and all claims and demands arising by reason of the fact that such person is or was a manager or officer of the company, or is or was serving at the request of the company, provided (i) the manager or officer has acted in good faith, with the care a manager or officer of a Florida limited liability company of like position would exercise under similar circumstances, in a manner reasonably believed by such manager or officer to be in the best interests of the Company, and, with respect to any criminal proceeding, had no reasonable cause to believe such manager’s or officer’s conduct was unlawful, and (ii) such indemnification does not violate the provisions of Section 605.0105, Florida Statutes.
Georgia Registrants
Monroe HMA, LLC, QHG Georgia Holdings, Inc., QHG Georgia, LP and Winder HMA, LLC are incorporated or organized under the laws of the State of Georgia.
Section 14-9-108 of the Georgia Revised Uniform Limited Partnership Act provides for the indemnification of partners by the partnership from and against any and all claims and demands whatsoever, except for (1) intentional misconduct or a knowing violation of law; or (2) any transaction for which the Indemnitee received a personal benefit in violation or breach of any provision of the partnership agreement.
Section 14-11-306 of the Georgia Limited Liability Company Act provides that a limited liability company may, and has the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever arising in connection with the limited liability company, subject to such standards and restrictions, if any, as set forth in the articles of organization or a written operating agreement. However, no limited liability company has the power to indemnify any member or manager for the liability of a member or manager for intentional misconduct or a knowing violation of law or for any transaction for which the person received a personal benefit in violation or breach of any provision of a written operating agreement, nor may any such liability be eliminated or limited by articles of organization or a written operating agreement.
Sections 14-2-850 through 14-2-859 of the Georgia Business Corporation Code provides for the indemnification of officers and directors by the corporation under certain circumstances against expenses and liabilities incurred in legal proceedings involving such
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persons because of their being or having been an officer or director of the corporation. Under the Georgia Business Corporation Code, a corporation may purchase insurance on behalf of an officer or director of the corporation incurred in his or her capacity as an officer or director regardless of whether the person could be indemnified under the Georgia Business Corporation Code.
The Agreement of Limited Partnership of QHG Georgia, LP provides for the indemnification of the general partner to the fullest extent permitted by the Georgia Revised Uniform Limited Partnership Act.
The Operating Agreements of Monroe HMA, LLC and Winder HMA, LLC provide for the indemnification of any officer or director of the company from and against any and all claims and demands arising by reason of the fact that such person is or was a manager or officer of the company, or is or was serving at the request of the company, provided the manager or officer has acted in good faith with the care an officer of a Georgia corporation of like position would exercise under similar circumstances, in a manner reasonably believed by them to be in the best interests of the company, and has no reasonable cause to believe their conduct was unlawful.
The bylaws of QHG Georgia Holdings, Inc. provide for the indemnification of directors and officers to the extent permitted by the Georgia Business Corporation Code.
Illinois Registrants
Anna Hospital Corporation, Galesburg Hospital Corporation, Granite City Hospital Corporation, Granite City Illinois Hospital Company, LLC, Marion Hospital Corporation, Red Bud Hospital Corporation, Red Bud Illinois Hospital Company, LLC, Waukegan Hospital Corporation and Waukegan Illinois Hospital Company, LLC are incorporated or organized under the laws of the State of Illinois.
Section 15-7 of the Illinois Limited Liability Company Act states that a limited liability company shall reimburse a member or manager for payments made and indemnify a member or manager for liabilities incurred by the member or manager in the ordinary course of the business of the company or for the preservation of its business or property.
Section 8.75 of the Illinois Business Corporation Act of 1983 provides that a corporation may indemnify any person, including an officer or director, who was or is, or is threatened to be made, a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of such corporation, and, with respect to any criminal actions and proceedings, had no reasonable cause to believe that his conduct was unlawful. An Illinois corporation may indemnify any person, including an officer or director, who was or is, or is threatened to be made, a party to any threatened, pending or contemplated action or suit by or in the right of such corporation, under the same conditions, except that such indemnification is limited to expenses (including attorneys’ fees) actually and reasonably incurred by such person, and except that no indemnification is permitted without judicial approval if such person is adjudged to be liable to such corporation. Where an officer or director of a corporation is successful, on the merits or otherwise, in the defense of any action, suit or proceeding referred to above, or any claim, issue or matter therein, the corporation must indemnify that person against the expenses (including attorneys’ fees) which such officer or director actually and reasonably incurred in connection therewith.
The Limited Liability Company Agreement of each of Granite City Illinois Hospital Company, LLC, Red Bud Illinois Hospital Company, LLC and Waukegan Illinois Hospital Company, LLC, provide, to the fullest extent authorized by the Illinois Limited Liability Company Act, for the indemnification of any member of the company from and against any and all claims and demands arising by reason of the fact that such person is, or was, a member of the company.
The bylaws of each of Anna Hospital Corporation, Galesburg Hospital Corporation, Granite City Hospital Corporation, Marion Hospital Corporation, Red Bud Hospital Corporation and Waukegan Hospital Corporation provide for the indemnification of directors and officers to the fullest extent permitted by the Illinois Business Corporation Act of 1983.
Indiana Registrants
Frankfort Health Partner, Inc. and QHG of Clinton County, Inc. are incorporated under the laws of the State of Indiana.
Under Section 23-1-37-8 of the Indiana Business Corporation Law, a corporation may indemnify an individual made a party to a proceeding because the individual is or was a director against liability incurred in the proceeding if: (1) the individual’s conduct was in good faith; and (2) the individual reasonably believed: (A) in the case of conduct in the individual’s official capacity with the corporation, that the individual’s conduct was in its best interests; and (B) in all other cases, that the individual’s conduct was at least not
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opposed to its best interests; and (3) in the case of any criminal proceeding, the individual either: (A) had reasonable cause to believe the individual’s conduct was lawful; or (B) had no reasonable cause to believe the individual’s conduct was unlawful. A director’s conduct with respect to an employee benefit plan for a purpose the director reasonably believed to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of subsection (a)(2)(B).
The bylaws of Frankfort Health Partner, Inc. and QHG of Clinton County, Inc. provide for the indemnification of directors and officers to the fullest extent permitted by the Indiana Business Corporation Law.
Kentucky Registrants
Hospital of Fulton, Inc., Hospital of Louisa, Inc. and Jackson Hospital Corporation (KY) are incorporated under the laws of the Commonwealth of Kentucky.
Section 271B.8-510 of the Kentucky Business Corporation Act permits a corporation to indemnify an individual who is a party to a proceeding because he is a director against liability incurred in the proceeding if: (1) (a) he conducted himself in good faith; (b) he reasonably believed (i) in the case of conduct in his official capacity, that his conduct was in the best interests of the corporation; and (ii) in all other cases, that his conduct was at least not opposed to the best interests of the corporation; and (c) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. A director’s conduct with respect to an employee benefit plan for a purpose he reasonably believed to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of subsection (1)(b)2 of this section.
The bylaws of each of Hospital of Fulton, Inc., Hospital of Louisa, Inc. and Jackson Hospital Corporation (KY) provide for the indemnification of directors and officers to the fullest extent permitted by the Kentucky Business Corporation Act.
Missouri Registrants
Kennett HMA, LLC and Poplar Bluff Regional Medical Center, LLC are organized under the laws of the State of Missouri,
Section 347.057 of the Missouri Limited Liability Company Act provides that a person who is a member, manager, or both, of a limited liability company is not liable, solely by reason of being a member or manager, or both, under a judgment, decree or order of a court, or in any other manner, for a debt, obligation or liability of the limited liability company, whether arising in contract, tort or otherwise or for the acts or omissions of any other member, manager, agent or employee of the limited liability company. The Missouri Limited Liability Company Act provides in Section 347.088.1, that except as otherwise provided in the operating agreement an authorized person shall discharge his or her duty under the Missouri Limited Liability Company Act and the operating agreement in good faith, with the care a corporate officer of like position would exercise under similar circumstances, in the manner a reasonable person would believe to be in the best interest of the limited liability company, and shall not be liable for any such action so taken or any failure to take such action, if he or she performs such duties in compliance with such subsection.
The Missouri Limited Liability Company Act provides in Section 347.088.2 that to the extent that, at law or equity, a member or manager or other person has duties, including fiduciary duties, and liabilities relating to those duties to the limited liability company or to another member, manager, or other person that is party to or otherwise bound by an operating agreement: (1) any such member, manager, or other person acting under the operating agreement shall not be liable to the limited liability company or to any such other member, manager, or other person for the member’s, manager’s, or other person’s good faith reliance on the provisions of the operating agreement; and (2) the member’s, manager’s or other person’s duties and liabilities may be expanded or restricted by provision in the operating agreement.
The Limited Liability Company Agreements of Kennett HMA, LLC and Poplar Bluff Regional Medical Center, LLC each provide for the indemnification of any officer or director of the company from and against any and all claims and demands arising by reason of the fact that such person is or was a director or officer of the company, or is or was serving at the request of the company, provided the director or officer has acted in good faith with the care an officer of a Missouri corporation of like position would exercise under similar circumstances, in a manner reasonably believed by them to be in the best interests of the company, and has no reasonable cause to believe their conduct was unlawful.
Mississippi Registrants
Amory HMA, LLC, Biloxi H.M.A., LLC, Brandon HMA, LLC, Clarksdale HMA, LLC, Jackson HMA, LLC, Madison HMA, LLC, QHG of Forrest County, Inc., QHG of Hattiesburg, Inc., River Oaks Hospital, LLC, River Region Medical Corporation and ROH, LLC are incorporated or organized under the laws of the State of Mississippi.
Section 79-29-123 of the Revised Mississippi Limited Liability Company Act provides that the certificate of formation or operating agreement may provide for the limitation or elimination of any and all liabilities of any manager, member, officer or other person who is a party to or is otherwise bound by the operating agreement for any action taken, or failure to take any action, as a manager
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or member or other person, including, for breach of contract and for breach of duties, including all or any fiduciary duties, of a member, manager, officer or other person to a limited liability company or to its members or to another member or manager or officer or to another person; provided, that the certificate of formation or operating agreement may not limit or eliminate liability for (a) the amount of a financial benefit by a member or manager to which the member or manager is not entitled, (b) an intentional infliction of harm on the limited liability company or the members, (c) an intentional violation of criminal law, (d) a wrongful distribution, including distributions made in the course of winding up the company, or (e) any act or omission that constitutes a bad faith violation of the implied contractual covenant of good faith and fair dealing. A limited liability company may indemnify any member, manager, officer or other person from and against all claims and demands whatsoever, except a limited liability company cannot indemnify any member, manager, officer or other person in connection with a proceeding where such person was (i) found to have engaged in acts or omissions that constitute fraudulent conduct and was adjudged liable for claims based on such conduct, or (ii) was found to have engaged in any actions described in the preceding sentence and was adjudged liable for claims based on such actions. A limited liability company shall indemnify a member, manager, officer or other person who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the person was a party because the person is or was a member, manager, officer or agent of the limited liability company against reasonable expenses incurred by the member, manager, officer or agent in connection with the proceeding.
Sections 79-4-8.51 and 79-4-8.56 of the Mississippi Business Corporation Act provide that a corporation may indemnify an individual who is a party to a proceeding because he is a director or officer against liability incurred in the proceeding if the person’s conduct was in good faith; the person reasonably believed (A) in the case of conduct in the person’s official capacity, that the conduct was in the best interests of the corporation; and (B) in all other cases, that the person’s conduct was at least not opposed to the best interests of the corporation; and in the case of any criminal action, that the person had no reasonable cause to believe the person’s conduct was unlawful. A corporation may not indemnify a director or officer (1) in connection with a proceeding by or in the right of the corporation, except for reasonable expenses incurred in connection with the proceeding if it is determined that the director or officer has met the relevant standard of conduct described in the preceding sentence or (2) in connection with any proceeding with respect to conduct for which the person was adjudged liable on the basis that he received an improper financial benefit.
Sections 79-4-8.52 and 79-4-8.56 of the Mississippi Business Corporation Act provide that a corporation must indemnify a director or officer who was wholly successful in the defense of any proceeding to which he was a party because he was a director or officer of the corporation against reasonable expenses incurred by him in connection with the proceeding.
The Operating Agreements of each of Amory HMA, LLC, Biloxi H.M.A., LLC, Brandon HMA, LLC, Clarksdale HMA, LLC, Jackson HMA, LLC, Madison HMA, LLC, River Oaks Hospital, LLC and ROH, LLC provide for the indemnification of any officer or director of the company from and against liabilities incurred in connection with any actions, suits or proceedings arising by reason of the fact that such person is or was a director or officer of the company, or is or was serving at the request of the company, provided the director or officer has acted in good faith with the care of a prudent person in a like position and in a manner reasonably believed by them to be in the best interests of the company.
The bylaws of both QHG of Forrest County, Inc. and QHG of Hattiesburg, Inc. provide for the indemnification of directors and officers to the fullest extent permitted by the law of the state in which indemnification is sought.
The bylaws of River Region Medical Corporation provide for the indemnification of directors and officers to the fullest extent permitted by applicable law.
Nevada Registrants
NC-DSH, LLC is organized under the laws of the State of Nevada.
Under Sections 86.411 through 86.441 of Nevada’s Limited Liability Company Act, a limited liability company may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a manager, member, employee or agent of the company, or is or was serving at the request of the company as a manager, member, employee or agent of another limited liability company, corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorney’s fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with the action, suit or proceeding if he acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, does not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the limited liability company, and that, with respect to any criminal action or proceeding, he had reasonable cause to believe that his conduct was unlawful. To the extent that a manager, member, employee or agent of a limited liability company has been successful on the merits or otherwise in defense of any action, suit or proceeding or in defense of any claim, issue or matter therein, the company shall indemnify him against expenses, including attorney’s fees, actually and reasonably incurred by him in connection with the defense.
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If unsuccessful in defense of a third-party civil suit or a criminal suit, or if such a suit is settled, an Indemnitee may be indemnified under Nevada law against both (i) expenses, including attorneys’ fees, and (ii) judgments, fines, and amounts paid in settlement if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the registrant, and, with respect to any criminal action, had no reasonable cause to believe his or her conduct was unlawful.
If unsuccessful in defense of a suit brought by or in the right of the registrant, where the suit is settled, an Indemnitee may be indemnified under Nevada law only against expenses (including attorneys’ fees) actually and reasonably incurred in the defense or settlement of the suit if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the registrant except that if the Indemnitee is adjudged to be liable for a breach of fiduciary duty or misconduct, fraud, or a knowing violation of law in the performance of his or her duty to the registrant, he or she cannot be made whole even for expenses unless a court determines that he or she is fully and reasonably entitled to indemnification for such expenses.
Also under Nevada law, expenses incurred by an officer or director in defending a civil or criminal action, suit, or proceeding may be paid by the registrant in advance of the final disposition of the suit, action, or proceeding upon receipt of an undertaking by or on behalf of the officer or director to repay such amount if it is ultimately determined that he or she is not entitled to be indemnified by the registrant. The registrant may also advance expenses incurred by other employees and agents of the registrant upon such terms and conditions, if any, that the board of directors of the registrant deems appropriate.
The Operating Agreement of NC-DSH, LLC provides for the indemnification of directors and officers to the fullest extent permitted by the Nevada Limited Liability Company Act.
New Jersey Registrants
Salem Hospital Corporation is incorporated under the laws of the State of New Jersey.
Section 14A: 3-5 of the New Jersey Business Corporation Act provides that any corporation organized for any purpose under any general or special law of this State shall have the power to indemnify a corporate agent against his expenses and liabilities in connection with any proceeding involving the corporate agent by reason of his being or having been such a corporate agent, other than a proceeding by or in the right of the corporation, if: (a) such corporate agent acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation; and (b) with respect to any criminal proceeding, such corporate agent had no reasonable cause to believe his conduct was unlawful. Any corporation organized for any purpose under any general or special law of this New Jersey shall have the power to indemnify a corporate agent against his expenses in connection with any proceeding by or in the right of the corporation to procure a judgment in its favor which involves the corporate agent by reason of his being or having been such corporate agent, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation.
The Articles of Incorporation and the Bylaws of Salem Hospital Corporation provide for the indemnification of directors and officers to the fullest extent permitted by the New Jersey Business Corporation Act.
New Mexico Registrants
Deming Hospital Corporation, Roswell Hospital Corporation and San Miguel Hospital Corporation are incorporated under the laws of the State of New Mexico.
Section 53-11-4.1 of the New Mexico Business Corporation Act permits a corporation to indemnify any person made a part to any proceeding by reason of the fact that the person is or was a director, officer, or employer if the person acted in good faith and reasonably believed the person’s conduct was, in the case of conduct in the person’s official capacity, in the best interests of the corporation or, otherwise, at least not opposed to its best interests; and in the case of any criminal proceeding, the person had no reasonable cause to believe the person’s conduct was unlawful. Indemnification may be made against judgments, penalties, fines, settlements and reasonable expenses, actually incurred by the person in connection with the proceeding; except that if the proceeding was by or in the right of the corporation, indemnification may be made only against such reasonable expenses and shall not be made in respect of any proceeding in which the person shall have been adjudged to be liable to the corporation. The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, be determinative that the person did not meet the requisite standard of conduct set forth in this subsection.
The articles of incorporation and bylaws of each of Deming Hospital Corporation, Roswell Hospital Corporation and San Miguel Hospital Corporation provide for the indemnification of directors and officers to the fullest extent permitted by the New Mexico Business Corporation Act.
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North Carolina Registrants
Hamlet H.M.A., LLC, Statesville HMA, LLC and Williamston Hospital Corporation are organized or incorporated under the laws of the State of North Carolina.
Section 57D-3-31 of the North Carolina Limited Liability Company Act (the “NCLLCA”) provides that a limited liability corporation must indemnify a person who is wholly successful on the merits or otherwise in the defense of any proceeding to which the person was a party because the person is or was a member, a manager, or other company official if the person also is or was an interest owner at the time to which the claim relates, acting within the person’s scope of authority as a manager, member, or other company official against expenses incurred by the person in connection with the proceeding. A North Carolina limited liability company is required to reimburse a person who is or was a member for any payment made and indemnify the person for any obligation, including any judgment, settlement, penalty, fine, or other cost, incurred or borne in the authorized conduct of the business or preservation of the business or property, whether acting in the capacity of a manager, member, or other company official if, in making the payment or incurring the obligation, the person complied with the duties and standards of conduct (i) under G.S.57D-3-21 (relating to duties and standards of conduct of managers), as modified or eliminated by the operating agreement or (ii) otherwise imposed by applicable law.
Sections 55-8-50 through 55-8-58 of the North Carolina Business Corporation Act permit indemnification of directors and officers in a variety of circumstances.
For example, Sections 55-8-51 and 55-8-56 of the North Carolina Business Corporation Act allow corporations to indemnify an individual made a party to a proceeding because he or she is or was a director, officer, employee or agent against liability incurred in the proceeding if: (i) the individual conducted himself or herself in good faith; (ii) the individual reasonably believed, in the case of conduct in official capacity with the corporation, that the conduct was in its best interests and in all other cases, that the conduct was at least not opposed to its best interests; and (iii) in the case of any criminal proceeding, the individual had no reasonable cause to believe his or her conduct was unlawful. A corporation may not indemnify a director, officer, employee or agent if, in connection with a proceeding by or in the right of the corporation, the individual was adjudged liable to the corporation or, in connection with any other proceeding charging improper personal benefit, the individual was adjudged liable on the basis that personal benefit was improperly received by him or her.
In addition, Sections 55-8-52 and 55-8-56 of the North Carolina Business Corporation Act require corporations, unless limited by its articles of incorporation, to indemnify a director or officer who was wholly successful in the defense of any proceeding, or any claim to which he or she was a party because he or she is or was a director or officer of the corporation, against reasonable expenses incurred in connection therewith.
A corporation may purchase insurance under the law of North Carolina on behalf of directors, officers, employees or agents.
The Operating Agreements of Hamlet H.M.A., LLC and Statesville HMA, LLC each provide for the indemnification of any officer or director of the company from and against any and all claims and demands arising by reason of the fact that such person is or was a director or officer of the company, or is or was serving at the request of the company, provided the director or officer in good faith with the care an ordinary prudent person in a like position would exercise under similar circumstances and in a manner reasonably believed by them to be in the best interests of the Company.
The Articles of Incorporation of Williamston Hospital Corporation provide for the indemnification of directors and officers, as well as agents and employees if authorized by the Board of Directors, to the fullest extent permitted by the North Carolina Business Corporation Act.
The bylaws of Williamston Hospital Corporation provide for the indemnification of directors and officers and agents to the fullest extent permitted by the North Carolina Business Corporation Act.
Ohio Registrants
QHG of Massillon, Inc. is incorporated under the laws of the State of Ohio.
Under Section 1701.13(E) of the Ohio General Corporation Law, generally, a corporation may indemnify any current or former director, officer, employee or agent for reasonable expenses incurred in connection with the defense or settlement of any threatened, pending or completed litigation related to the person’s position with the corporation or related to the person’s service (as a director, trustee, officer, employee, member, manager, or agent) to another corporation at the request of the indemnifying corporation, if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation. If the litigation involved a criminal action or proceeding, the person must also have had no reasonable cause to believe his or her conduct was unlawful. Ohio law requires indemnification for reasonable expenses incurred if the person was successful in the defense of the litigation.
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The bylaws of QHG of Massillon, Inc. provide for the indemnification of directors and officers to the fullest extent permitted by the Ohio General Corporation Law.
Oklahoma Registrants
Blackwell HMA, LLC, Clinton HMA, LLC, Kay County Hospital Corporation, Kay County Oklahoma Hospital Company, LLC, Marshall County HMA, LLC, Mayes County HMA, LLC, and Seminole HMA, LLC were formed under the laws of the State of Oklahoma.
Section 2003 of the Oklahoma Limited Liability Company Act provides that a limited liability company may indemnify and hold harmless any member, agent, or employee from and against any and all claims and demands whatsoever, except in the case of action or failure to act by the member, agent, or employee which constitutes willful misconduct or recklessness, and subject to the standards and restrictions, if any, set forth in the articles of organization or operating agreement. Section 2017(B) of the Oklahoma Limited Liability Company Act provides, however, that a company may not limit or eliminate a manager’s liability for (a) any breach of the manager’s duty of loyalty to the limited liability company or its members; (b) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; or (c) any transaction from which the manager derived an improper personal benefit.
Section 1031 of the Oklahoma General Corporation Act gives a corporation the power to indemnify certain persons under certain circumstances. The Oklahoma General Corporation Act gives a corporation the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, other than an action by or in the right of the corporation, by reason of the fact that the person is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, against expenses, including attorneys’ fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by the person in connection with the action, suit, or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful.
Section 1031 of the Oklahoma General Corporation Act also gives a corporation the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses, including attorneys’ fees, actually and reasonably incurred by the person in connection with the defense or settlement of an action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which the person shall have been adjudged to be liable to the corporation unless and only to the extent that the court in which the action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for expenses which the court shall deem proper.
The bylaws of Kay County Hospital Corporation provide for the indemnification of directors and officers and to the fullest extent permitted by the Oklahoma General Corporation Act.
The operating agreement of Kay County Oklahoma Hospital Company, LLC provides for the indemnification of the member relating to any liability incurred by reason of interest ownership and any act performed or omitted to be performed by member in connection with the business of Kay County Oklahoma Hospital Company, LLC. The operating agreements of Blackwell HMA, LLC, Clinton HMA, LLC, Marshall County HMA, LLC, Mayes County HMA, LLC, and Seminole HMA, LLC provide for indemnification of the members and directors and officers.
Pennsylvania Registrants
Carlisle HMA, LLC, Clinton Hospital Corporation and Coatesville Hospital Corporation are organized or incorporated under the laws of the Commonwealth of Pennsylvania.
Under Section 8945 of the Pennsylvania Limited Liability Company Law of 1994, a limited liability company may and shall have the power to indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever, provided, however, that a limited liability company may not indemnify a manager, member or other person for an act that is determined by a court to constitute willful misconduct or recklessness. Further, subsection (d) provides that a limited liability may pay expenses incurred by a member, manager or other person in advance of disposition of any claim if such person makes an undertaking to repay the company if it is determined that such person is not entitled to indemnification. Finally, under subsection (f), a limited liability company must indemnify its members and managers for payments made, and personal liabilities reasonably incurred, in the ordinary and proper conduct of its business or for the preservation of its business or property.
Pursuant to Sections 1741-1743 of the Pennsylvania Business Corporation Law (“PABCL”), a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding (i) if such person acted in good faith and in a manner that person reasonably believed to
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be in or not opposed to the best interests of the corporation and (ii) with respect to any criminal action or proceeding, if he or she had no reasonable cause to believe such conduct was unlawful. In actions brought by or in the right of the corporation, a corporation may indemnify such person against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner that person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made in respect of any claim, issue or matter as to which that person shall have been adjudged to be liable for negligence or misconduct in performance of his duty to the corporation unless, and only to the extent that, the court of common pleas or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person in fairly and reasonably entitled to indemnification for such expenses which the court of common pleas or such other court shall deem proper. A Pennsylvania corporation is required to indemnify a director or officer against expenses actually and reasonably incurred to the extent that the director or officer is successful in defending a lawsuit brought against him or her by reason of the fact that the director or officer is or was a director or officer of the corporation.
Section 1746 of the PABCL provides that the foregoing provisions shall not be deemed exclusive of any other rights to which a person seeking indemnification may be entitled under, among other things, any bylaw provision or agreement, provided that no indemnification may be made in any case where the act or failure to act giving rise to the claim for indemnification is determined by a court to have constituted willful misconduct or recklessness.
The Third Amended and Restated Limited Liability Company Agreement of Carlisle HMA, LLC provides for the indemnification of any officer or director of the companies from and against any and all claims and demands arising by reason of the fact that such person is or was a director or officer of the company, or is or was serving at the request of the company, provided the director or officer has acted in good faith, in a manner reasonably believed by them to be in the best interests of the company, and has no reasonable cause to believe their conduct was unlawful.
The Articles of Incorporation and the Bylaws of each of Clinton Hospital Corporation and Coatesville Hospital Corporation provide for the indemnification of directors and officers to the fullest extent permitted by the Pennsylvania Business Corporation Law of 1988.
South Carolina Registrants
Chester HMA, LLC, QHG of South Carolina, Inc. and QHG of Spartanburg, Inc. are organized or incorporated under the laws of the State of South Carolina.
Under Section 33-44-403 of the South Carolina Limited Liability Company Act, a limited liability company shall reimburse a member or manager for payments made and indemnify a member or manager for liabilities incurred by the member or manager in the ordinary course of the business of the company or for the preservation of its business or property.
Under Sections 33-8-510 and 33-8-520 of the South Carolina Business Corporation Act, a corporation may indemnify an individual made a party to a proceeding because he is or was a director against liability incurred in the proceeding if: (1) he conducted himself in good faith; and (2) he reasonably believed: (i) in the case of conduct in his official capacity with the corporation, that his conduct was in its best interest; and (ii) in all other cases, that his conduct was at least not opposed to its best interest; and (3) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. A corporation may not indemnify a director under this section in connection with a proceeding by or in right of the corporation in which the director was adjudged liable to the corporation or in connection with any other proceeding charging improper personal benefit to him, whether or not involving action in his official capacity, in which he was adjudged liable on the basis that personal benefit was improperly received by him. Unless limited by its articles of incorporation, a corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which he was a party because he is or was a director of the corporation against reasonable expenses incurred by him in connection with the proceeding.
The Amended and Restated Limited Liability Company Agreement of Chester HMA, LLC provides for the indemnification of any officer or director of the companies from and against any and all claims and demands arising by reason of the fact that such person is or was a director or officer of the company, or is or was serving at the request of the company, provided the director or officer has acted in good faith and has not violated the duty of care and duty of loyalty set forth in Section 33-44-409 of the South Carolina Limited Liability Act.
The bylaws of QHG of South Carolina, Inc. and QHG of Spartanburg, Inc. provide for the indemnification of directors and officers to the fullest extent permitted by the 1976 Code of Laws of South Carolina as amended.
Tennessee Registrants
Campbell County HMA, LLC, Cleveland Hospital Corporation, Cocke County HMA, LLC, Dyersburg Hospital Corporation, HMA Fentress County General Hospital, LLC, Hospital of Morristown, Inc., Jackson Hospital Corporation (TN), Jefferson County
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HMA, LLC, Knoxville HMA Holdings, LLC, Lakeway Hospital Corporation, Lexington Hospital Corporation, Martin Hospital Corporation, McNairy Hospital Corporation, Metro Knoxville HMA, LLC, and Shelbyville Hospital Corporation are incorporated under the laws of the State of Tennessee.
Section 48-249-115 of the Tennessee Revised Limited Liability Company Act permits a limited liability company, or LLC, to indemnify an individual made a party to a proceeding because such individual is or was a responsible person against liability incurred in the proceeding if the individual acted in good faith and reasonably believed that such individual’s conduct was in the best interest of the LLC or at least not opposed to its best interests, and in the case of any criminal proceeding, had no reasonable cause to believe such conduct was unlawful. Unless ordered by a court, a limited liability company may not indemnify a responsible person in connection with a proceeding by or in the right of the LLC in which the responsible person was adjudged liable to the LLC, or in connection with any other proceeding charging improper personal benefit to such responsible person, whether or not involving action in such person’s official capacity, in which such person was adjudged liable on the basis that personal benefit was improperly received by such person. Unless limited by its articles, an LLC shall indemnify a responsible person or manager who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the person was a party because the person is or was a responsible person or manager of the LLC against reasonable expenses incurred by the person in connection with the proceeding.
Section 48-18-507 of the Tennessee Business Corporation Act (“TBCA”) provides that a corporation may indemnify an individual made a party to a proceeding because the individual is or was a director against liability incurred in the proceeding if: (a) the individual conducted himself or herself in good faith; (b) the individual reasonably believed (i) in the case of conduct in the individual’s official capacity with the corporation, that the individual’s conduct was in its best interest; and (ii) in all other cases, that the individual’s conduct was at least not opposed to its best interests, and (c) in the case of any criminal proceeding, the individual had no reasonable cause to believe the individual’s conduct was unlawful. Section 48-18-507 of the Tennessee Business Corporation Act provides that, unless the corporation’s charter provides otherwise: (1) an officer of the corporation who is not a director is entitled to mandatory indemnification and is entitled to apply for court-ordered indemnification, in each case to the same extent as a director; (2) the corporation may indemnify and advance expenses under this part to an officer, employee, or agent of the corporation who is not a director to the same extent as to a director; and (3) a corporation may also indemnify and advance expenses to an officer, employee, or agent who is not a director to the extent, consistent with public policy, that may be provided by its charter, bylaws, general or specific action of its board of directors, or contract.
The Operating Agreements of each of Campbell County HMA, LLC, Cocke County HMA, LLC, HMA Fentress County General Hospital, LLC, Jefferson County HMA, LLC, Knoxville HMA Holdings, LLC and Metro Knoxville HMA, LLC provide for the indemnification of any officer or director of the company from and against any and all claims and demands arising by reason of the fact that such person is or was a director or officer of the company, or is or was serving at the request of the company, provided the director or officer has acted in good faith, in a manner reasonably believed by them to be in the best interests of the company, and has no reasonable cause to believe their conduct was unlawful.
The bylaws and charters of each of each of Cleveland Hospital Corporation, Dyersburg Hospital Corporation, Hospital of Morristown, Inc., Jackson Hospital Corporation (TN), Lakeway Hospital Corporation, Lexington Hospital Corporation, Martin Hospital Corporation, McNairy Hospital Corporation and Shelbyville Hospital Corporation provide for the indemnification of directors and officers to the fullest extent permitted by the Tennessee Business Corporation Act.
Texas Registrants
Big Bend Hospital Corporation, Big Spring Hospital Corporation, Granbury Hospital Corporation, Jourdanton Hospital Corporation, Weatherford Hospital Corporation and Weatherford Texas Hospital Company, LLC are incorporated or organized under the laws of the State of Texas.
Chapter 101 of the Texas Business Organizations Code (“TBOC”) relates specifically to limited liability companies.
Section 101.402 of the TBOC permits a limited liability company to indemnify members, managers, officers or assignees of membership interests in the company and to purchase or procure or establish and maintain liability insurance or another arrangement for such members, managers, officers and assignees of membership interests in the company, subject to such standards, and restrictions, if any, as are set forth in its articles of organization or in its company agreement.
Section 101.401 of the TBOC provides that the company agreement of a limited liability company may expand or restrict any duties, including fiduciary duties, and related liabilities that a member, manager, officer, or other person has to the company or to a member or manager of the company.
Chapter 8 of the TBOC applies to each form of entity in Texas except for general partnerships or limited liability companies.
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Section 8.051 of the TBOC states that (a) An enterprise shall indemnify a governing person, former governing person, or delegate against reasonable expenses actually incurred by the person in connection with a proceeding in which the person is a respondent because the person is or was a governing person or delegate if the person is wholly successful, on the merits or otherwise, in the defense of the proceeding. (b) A court that determines, in a suit for indemnification, that a governing person, former governing person, or delegate is entitled to indemnification under this section shall order indemnification and award to the person the expenses incurred in securing the indemnification.
Section 8.052 of the TBOC states that (a) On application of a governing person, former governing person, or delegate and after notice is provided as required by the court, a court may order an enterprise to indemnify the person to the extent the court determines that the person is fairly and reasonably entitled to indemnification in view of all the relevant circumstances. (b) This section applies without regard to whether the governing person, former governing person, or delegate applying to the court satisfies the requirements of Section 8.101 or has been found liable: (1) to the enterprise; or (2) because the person improperly received a personal benefit, without regard to whether the benefit resulted from an action taken in the person’s official capacity. (c) The indemnification ordered by the court under this section is limited to reasonable expenses if the governing person, former governing person, or delegate is found liable: (1) to the enterprise; or (2) because the person improperly received a personal benefit, without regard to whether the benefit resulted from an action taken in the person’s official capacity.
Section 8.101 of the TBOC states that (a) An enterprise may indemnify a governing person, former governing person, or delegate who was, is, or is threatened to be made a respondent in a proceeding to the extent permitted by Section 8.102 if it is determined in accordance with Section 8.103 that: (1) the person: (A) acted in good faith; (B) reasonably believed: (i) in the case of conduct in the person’s official capacity, that the person’s conduct was in the enterprise’s best interests; and (ii) in any other case, that the person’s conduct was not opposed to the enterprise’s best interests; and (C) in the case of a criminal proceeding, did not have a reasonable cause to believe the person’s conduct was unlawful; (2) with respect to expenses, the amount of expenses other than a judgment is reasonable; and (3) indemnification should be paid. (b) Action taken or omitted by a governing person or delegate with respect to an employee benefit plan in the performance of the person’s duties for a purpose reasonably believed by the person to be in the interest of the participants and beneficiaries of the plan is for a purpose that is not opposed to the best interests of the enterprise. (c) Action taken or omitted by a delegate to another enterprise for a purpose reasonably believed by the delegate to be in the interest of the other enterprise or its owners or members is for a purpose that is not opposed to the best interests of the enterprise. (d) A person does not fail to meet the standard under Subsection (a)(1) solely because of the termination of a proceeding by: (1) judgment; (2) order; (3) settlement; (4) conviction; or (5) a plea of nolo contendere or its equivalent.
Section 8.102 of the TBOC states that (a) Subject to Subsection (b), an enterprise may indemnify a governing person, former governing person, or delegate against: (1) a judgment; and (2) expenses, other than a judgment, that are reasonable and actually incurred by the person in connection with a proceeding. (b) Indemnification under this subchapter of a person who is found liable to the enterprise or is found liable because the person improperly received a personal benefit: (1) is limited to reasonable expenses actually incurred by the person in connection with the proceeding; (2) does not include a judgment, a penalty, a fine, and an excise or similar tax, including an excise tax assessed against the person with respect to an employee benefit plan; and (3) may not be made in relation to a proceeding in which the person has been found liable for: (A) willful or intentional misconduct in the performance of the person’s duty to the enterprise; (B) breach of the person’s duty of loyalty owed to the enterprise; or (C) an act or omission not committed in good faith that constitutes a breach of a duty owed by the person to the enterprise. (c) A governing person, former governing person, or delegate is considered to have been found liable in relation to a claim, issue, or matter only if the liability is established by an order, including a judgment or decree of a court, and all appeals of the order are exhausted or foreclosed by law.
The Limited Liability Company Agreement of Weatherford Texas Hospital Company, LLC provides for the indemnification of any member.
The bylaws of Big Bend Hospital Corporation, Big Spring Hospital Corporation, Granbury Hospital Corporation, Jourdanton Hospital Corporation and Weatherford Hospital Corporation provide for the indemnification of directors and officers to the fullest extent permitted by the TBOC.
Utah Registrants
Tooele Hospital Corporation is incorporated under the laws of the State of Utah.
Section 16-10a-902 of the Utah Revised Business Corporation Act (the “Revised Act”) provides that a corporation may indemnify any individual who was, is, or is threatened to be made a named defendant or respondent (a “Party”) in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal (a “Proceeding”), because he or she is or was a director of the corporation or, while a director of the corporation, is or was serving at its request as a director, officer, partner, trustee, employee, fiduciary or agent of another corporation or other person or of an employee benefit plan (an “Indemnifiable Director”), against any obligation incurred with respect to a Proceeding, including any judgment, settlement, penalty, fine or reasonable expenses (including attorneys’ fees), incurred in the Proceeding if his or her conduct was in good
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faith, he or she reasonably believed that his or her conduct was in, or not opposed to, the best interests of the corporation, and, in the case of any criminal Proceeding, had no reasonable cause to believe such conduct was unlawful; provided, however, that pursuant to Subsection 902(4): (i) indemnification under Section 902 in connection with a Proceeding by or in the right of the corporation is limited to payment of reasonable expenses (including attorneys’ fees) incurred in connection with the Proceeding and (ii) the corporation may not indemnify an Indemnifiable Director in connection with a Proceeding by or in the right of the corporation in which the Indemnifiable Director was adjudged liable to the corporation, or in connection with any other Proceeding charging that the Indemnifiable Director derived an improper personal benefit, whether or not involving action in his or her official capacity, in which Proceeding he or she was adjudged liable on the basis that he or she derived an improper personal benefit.
Section 16-10a-903 of the Revised Act provides that, unless limited by its articles of incorporation, a corporation shall indemnify an Indemnifiable Director who was successful, on the merits or otherwise, in the defense of any Proceeding, or in the defense of any claim, issue or matter in the Proceeding, to which he or she was a Party because he or she is or was an Indemnifiable Director of the corporation, against reasonable expenses (including attorneys’ fees) incurred in connection with the Proceeding or claim with respect to which he or she has been successful.
The Articles of Incorporation and the Bylaws of Tooele Hospital Corporation, provides, to the fullest extent authorized by the Utah Revised Business Corporation Act, for the indemnification of any member, manager, officer or employee of the company from and against any and all claims and demands arising by reason of the fact that such person is, or was, a member, manager, officer or employee of the company.
Virginia Registrants
Emporia Hospital Corporation and Franklin Hospital Corporation are incorporated under the laws of Virginia.
Article 10 of Chapter 9 of Title 13.1 of the Code of Virginia, as amended, permits a Virginia corporation to indemnify any director or officer for reasonable expenses incurred in any legal proceeding in advance of final disposition of the proceeding, if the director or officer furnishes the corporation with a written statement of his or her good faith belief that he or she has met the standard of conduct prescribed by the Code of Virginia and furnishes the corporation with a written undertaking to repay any funds advanced if it is ultimately determined that he or she did not meet the relevant standard of conduct. In addition, a corporation is permitted to indemnify a director or officer against liability incurred in a proceeding if a determination has been made by the disinterested members of the board of directors, special legal counsel or shareholders that the director or officer conducted himself or herself in good faith and otherwise met the required standard of conduct. In a proceeding by or in the right of the corporation, no indemnification shall be made in respect of any matter as to which a director or officer is adjudged to be liable to the corporation, except (i) pursuant to a lawful court order, or (ii) for reasonable expenses incurred in connection with the proceeding if it is determined that the director or officer has met the relevant standard of conduct. In any other proceeding, no indemnification shall be made, unless lawfully ordered by a court, if the director or officer is adjudged liable to the corporation on the basis that he or she improperly received a personal benefit. Corporations are given the power to make any further indemnity, including advance of expenses, to any director or officer that may be authorized by the articles of incorporation or any bylaw made by the shareholders or any resolution adopted, before or after the event, by the shareholders, except an indemnity against willful misconduct or a knowing violation of the criminal law. Any such provision that obligates the corporation to provide indemnification to the fullest extent permitted by law shall be deemed, unless the articles of incorporation or any such bylaw or resolution expressly provides otherwise, also to obligate the corporation to advance funds to pay for or reimburse expenses to the fullest extent permitted by law in accordance with the first sentence of this paragraph, except that the applicable standard shall be conduct that does not constitute willful misconduct or a knowing violation of criminal law. Unless limited by its articles of incorporation, indemnification against the reasonable expenses incurred by a director or officer is mandatory when he or she entirely prevails in the defense of any proceeding to which he or she is a party because he or she is or was a director or officer.
The Articles of Incorporation and the Bylaws of each of Emporia Hospital Corporation and Franklin Hospital Corporation provide for the indemnification of directors and officers to the fullest extent authorized by the Code of Virginia
Virginia Hospital Company, LLC is organized under the laws of Virginia.
Section 13.1-1009 of the Virginia Limited Liability Company Act permits a limited liability company to indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever, and to pay for or reimburse any member or manager or other person for reasonable expenses incurred by such a person who is a party to a proceeding in advance of final disposition of the proceeding.
The Limited Liability Company Agreement of Virginia Hospital Company, LLC provides to the fullest extent authorized by the Virginia Limited Liability Company Act, for the indemnification of any member, manager, officer or employee of the company from and against any and all claims and demands arising by reason of the fact that such person is, or was, a member, manager, officer or employee of the company.
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Washington Registrants
Yakima HMA, LLC is organized under the laws of the State of Washington.
Section 25.15.040 of the Washington Limited Liability Company Act provides that a limited liability company agreement may contain provisions not inconsistent with the law that indemnify any member or manager from and against any judgments, settlements, penalties, fines or expenses incurred in a proceeding to which an individual is a party because he or she is, or was, a member or manager. However, no provision may indemnify a member or a manager from or on account of acts or omissions of the member or manager finally adjudged to be intentional misconduct or a knowing violation of law by the member or manager, or any transaction with respect to which it was finally adjudged that such member or manager received a benefit in money, property, or services to which such member or manager was not legally entitled.
The Third Amended and Restated Limited Liability Company Act of Yakima HMA, LLC provides for the indemnification of any officer or director of the company from and against any and all claims and demands arising by reason of the fact that such person is or was a director or officer of the company, or is or was serving at the request of the company, provided the director or officer has acted in good faith, in a manner reasonably believed by them to be in the best interests of the company, and has no reasonable cause to believe their conduct was unlawful.
West Virginia Registrants
Oak Hill Hospital Corporation is incorporated under the laws of the State of West Virginia.
Sections 31D-8-851and 31D-8-856 permits a corporation to indemnify an individual who is a party to a proceeding because he or she is a director or officer, respectively, against liability incurred in the proceeding if he or she conducted himself or herself in good faith and reasonably believed that his or her conduct was in the best interests of the corporation or at least not opposed to the best interests of the corporation; and in the case of any criminal proceeding, he or she had no reasonable cause to believe his or her conduct was unlawful; or engaged in conduct for which broader indemnification has been made permissible or obligatory under a provision of the articles of incorporation.
The bylaws of Oak Hill Hospital Corporation provide for the indemnification of directors and officers to the fullest extent permitted by the West Virginia Business Corporation Act.
Wyoming Registrants
Evanston Hospital Corporation is incorporated under the laws of the State of Wyoming.
Section 17-16-851 of the Wyoming Business Corporation Act permits a corporation to indemnify an individual who is a party to a proceeding because he is a director or officer against liability incurred in the proceeding if he conducted himself in good faith and reasonably believed that his conduct was in or at least not opposed to the corporation’s best interests; and in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful; or engaged in conduct for which broader indemnification has been made permissible or obligatory under a provision of the articles of incorporation; provided, however, unless otherwise ordered by a court, a corporation may not indemnify a director or officer in connection with any proceeding with respect to conduct for which he was adjudged liable on the basis that he received a financial benefit to which he was not entitled.
The bylaws of Evanston Hospital Corporation provide for the indemnification of directors and officers to the fullest extent permitted by the Wyoming Business Corporation Act.
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| Item 16. | Exhibits |
| Exhibit |
Description | |
| 1.1* | Form of Underwriting Agreement | |
| 3.1 | Form of Restated Certificate of Incorporation of Community Health Systems, Inc. (incorporated by reference to Exhibit 3.1 to Amendment No. 4 to Community Health Systems, Inc.’s Registration Statement on Form S-1/A filed June 8, 2000 (No. 333-31790)) | |
| 3.2 | Certificate of Amendment to the Restated Certificate of Incorporation of Community Health Systems, Inc., dated May 18, 2010 (incorporated by reference to Exhibit 3.2 to Community Health Systems, Inc.’s Current Report on Form 8-K filed May 20, 2010 (No. 001-15925)) | |
| 3.3 | Amended and Restated By-laws of Community Health Systems, Inc. (as of May 20, 2014) (incorporated by reference to Exhibit 3.1 to Community Health Systems, Inc.’s Current Report on Form 8-K filed May 22, 2014 (No. 001-15925)) | |
| 4.1 | Form of Indenture, by and between Community Health Systems, Inc. and Regions Bank, as trustee, relating to Senior Debt Securities | |
| 4.2 | Form of Indenture, by and between Community Health Systems, Inc. and Regions Bank, as trustee, relating to the Subordinated Debt Securities | |
| 4.3 | Form of Indenture, by and between CHS/Community Health Systems, Inc. and Regions Bank, as trustee, relating to the Senior Debt Securities | |
| 4.4 | Form of Indenture, by and between CHS/Community Health Systems, Inc. and Regions Bank, as trustee, relating to the Subordinated Debt Securities | |
| 4.5 | Form of Senior Debt Security of Community Health Systems, Inc. (included in Exhibit 4.1) | |
| 4.6 | Form of Subordinated Debt Security of Community Health Systems, Inc. (included in Exhibit 4.2) | |
| 4.7 | Form of Senior Debt Security of CHS/Community Health Systems, Inc. (included in Exhibit 4.3) | |
| 4.8 | Form of Subordinated Debt Security of CHS/Community Health Systems, Inc. (included in Exhibit 4.4) | |
| 4.5* | Form of Certificate of Designation | |
| 4.6* | Form of Depositary Agreement | |
| 4.7* | Form of Depositary Receipt | |
| 4.8* | Form of Warrant | |
| 4.9 | Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to Community Health Systems, Inc.’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2014 filed May 7, 2014 (No. 001-15925)) | |
| 4.10* | Form of Preferred Stock Certificate of Community Health Systems, Inc. | |
| 5.1 | Opinion of Hodgson Russ LLP | |
| 5.2 | Opinion of Bradley Arant Boult Cummings LLP | |
| 5.3 | Opinion of Kutak Rock LLP | |
| 5.4 | Opinion of Snell & Wilmer L.L.P. | |
| 5.5 | Opinion of Bass, Berry & Sims PLC | |
| 5.6 | Opinion of Buchanan Ingersoll & Rooney PC | Fowler White Boggs | |
| 5.7 | Opinion of King & Spalding LLP | |
| 5.8 | Opinion of McGuireWoods LLP | |
| 5.9 | Opinion of Bingham Greenebaum Doll LLP | |
| 5.10 | Opinion of Husch Blackwell LLP | |
| 5.11 | Opinion of Ballard Spahr LLP | |
| 5.12 | Opinion of Montgomery & Andrews, P.A. | |
| 5.13 | Opinion of Bailey Kennedy, LLP | |
| 5.14 | Opinion of McAfee & Taft A Professional Corporation | |
| 5.15 | Opinion of Parker Poe Adams & Bernstein LLP | |
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| Exhibit |
Description | |
| 5.16 | Opinion of Liechty & McGinnis, LLP | |
| 5.17 | Opinion of Hancock, Daniel, Johnson & Nagle, P.C. | |
| 5.18 | Opinion of Witherspoon, Kelley, Davenport & Toole, P.S. | |
| 5.19 | Opinion of Steptoe & Johnson PLLC | |
| 5.20 | Opinion of Crowley Fleck PLLP | |
| 12.1 | Computation of Ratio of Earnings to Fixed Charges | |
| 23.1 | Consent of Hodgson Russ LLP (included as part of its opinion filed as Exhibit 5.1 hereto) | |
| 23.2 | Consent of Bradley Arant Boult Cummings LLP (included as part of its opinion filed as Exhibit 5.2 hereto) | |
| 23.3 | Consent of Kutak Rock LLP (included as part of its opinion filed as Exhibit 5.3 hereto) | |
| 23.4 | Consent of Snell & Wilmer L.L.P. (included as part of its opinion filed as Exhibit 5.4 hereto) | |
| 23.5 | Consent of Bass, Berry & Sims PLC (included as part of its opinion filed as Exhibit 5.5 hereto) | |
| 23.6 | Consent of Buchanan Ingersoll & Rooney PC | Fowler White Boggs. (included as part of its opinion filed as Exhibit 5.6 hereto) | |
| 23.7 | Consent of King & Spalding LLP (included as part of its opinion filed as Exhibit 5.7 hereto) | |
| 23.8 | Consent of McGuireWoods LLP (included as part of its opinion filed as Exhibit 5.8 hereto) | |
| 23.9 | Consent of Bingham Greenebaum Doll LLP (included as part of its opinion filed as Exhibit 5.9 hereto) | |
| 23.10 | Consent of Husch Blackwell LLP (included as part of its opinion filed as Exhibit 5.10 hereto) | |
| 23.11 | Consent of Ballard Spahr LLP (included as part of its opinion filed as Exhibit 5.11 hereto) | |
| 23.12 | Consent of Montgomery & Andrews, P.A. (included as part of its opinion filed as Exhibit 5.12 hereto) | |
| 23.13 | Consent of Bailey Kennedy, LLP (included as part of its opinion filed as Exhibit 5.13 hereto) | |
| 23.14 | Consent of McAfee & Taft A Professional Corporation (included as part of its opinion filed as Exhibit 5.14 hereto) | |
| 23.15 | Consent of Parker Poe Adams & Bernstein LLP (included as part of its opinion filed as Exhibit 5.15 hereto) | |
| 23.16 | Consent of Liechty & McGinnis, LLP (included as part of its opinion filed as Exhibit 5.16 hereto) | |
| 23.17 | Consent of Hancock, Daniel, Johnson & Nagle, P.C. (included as part of its opinion filed as Exhibit 5.17 hereto) | |
| 23.18 | Consent of Witherspoon, Kelley, Davenport & Toole, P.S. (included as part of its opinion filed as Exhibit 5.18 hereto) | |
| 23.19 | Consent of Steptoe & Johnson PLLC (included as part of its opinion filed as Exhibit 5.19 hereto) | |
| 23.20 | Consent of Crowley Fleck PLLP (included as part of its opinion filed as Exhibit 5.20 hereto) | |
| 23.21 | Consent of Deloitte & Touche LLP | |
| 24.1 | Powers of Attorney (included on the signature pages of this registration statement) | |
| 25.1 | Statement of Eligibility of Trustee on Form T-1 relating to Senior Debt Securities of Community Health Systems, Inc. | |
| 25.2 | Statement of Eligibility of Trustee on Form T-1 relating to Subordinated Debt Securities of Community Health Systems, Inc. | |
| 25.3 | Statement of Eligibility of Trustee on Form T-1 relating to Senior Debt Securities of CHS/Community Health Systems, Inc. | |
| 25.4 | Statement of Eligibility of Trustee on Form T-1 relating to Subordinated Debt Securities of CHS/Community Health Systems, Inc. | |
| * | To be filed as an exhibit to a Current Report on Form 8-K or other document incorporated by reference herein or to a post-effective amendment hereto, if applicable. |
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| Item 17. | Undertakings |
Each undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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(b) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the relevant trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under section 305(b)(2) of the Act.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Franklin, State of Tennessee, on May 6, 2015.
| CHS/COMMUNITY HEALTH SYSTEMS, INC. (Registrant) | ||
| By: | /s/ Wayne T. Smith | |
| Wayne T. Smith | ||
| Chairman of the Board and Chief Executive Officer | ||
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Wayne T. Smith, W. Larry Cash and Rachel A. Seifert and each of them singly, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all (i) amendments (including post-effective amendments) and additions to this registration statement and (ii) any and all additional registration statements pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agents full power and authority to do and perform each and every act in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Name |
Title |
Date | ||
| /s/ Wayne T. Smith Wayne T. Smith |
Chairman of the Board and Chief Executive Officer (Principal Executive Officer) |
May 6, 2015 | ||
| /s/ W. Larry Cash W. Larry Cash |
President of Financial Services, (Principal Financial Officer) |
May 6, 2015 | ||
| /s/ Kevin J. Hammons Kevin J. Hammons |
Senior Vice President and Chief Accounting (Principal Accounting Officer) |
May 6, 2015 | ||
| /s/ Rachel A. Seifert Rachel A. Seifert |
Executive Vice President, Secretary, General Counsel and Director |
May 6, 2015 | ||
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Franklin, State of Tennessee, on May 6, 2015.
| COMMUNITY HEALTH SYSTEMS, INC. (Registrant) | ||
| By: | /s/ Wayne T. Smith | |
| Wayne T. Smith | ||
| Chairman of the Board and Chief Executive Officer | ||
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Wayne T. Smith, W. Larry Cash and Rachel A. Seifert and each of them singly, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all (i) amendments (including post-effective amendments) and additions to this registration statement and (ii) any and all additional registration statements pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agents full power and authority to do and perform each and every act in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Name |
Title |
Date | ||
| /s/ Wayne T. Smith Wayne T. Smith |
Chairman of the Board (Principal Executive Officer) |
May 6, 2015 | ||
| /s/ W. Larry Cash W. Larry Cash |
President of Financial Services, (Principal Financial Officer) |
May 6, 2015 | ||
| /s/ Kevin J. Hammons Kevin J. Hammons |
Senior Vice President and Chief (Principal Accounting Officer) |
May 6, 2015 | ||
| /s/ John A. Clerico John A. Clerico |
Director | May 6, 2015 | ||
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| Name |
Title |
Date | ||
| /s/ James S. Ely III James S. Ely III |
Director | May 6, 2015 | ||
| /s/ John A. Fry John A. Fry |
Director | May 6, 2015 | ||
| /s/ William Norris Jennings, M.D. William Norris Jennings, M.D. |
Director | May 6, 2015 | ||
| /s/ Julia B. North Julia B. North |
Director | May 6, 2015 | ||
| /s/ H. Mitchell Watson H. Mitchell Watson |
Director | May 6, 2015 | ||
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Franklin, State of Tennessee, on May 6, 2015.
| Each of the Registrants Named on Schedule A-1 Hereto | ||
| By: | /s/ W. Larry Cash | |
| W. Larry Cash | ||
| President | ||
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints W. Larry Cash and Rachel A. Seifert and each of them singly, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all (i) amendments (including post-effective amendments) and additions to this registration statement and (ii) any and all additional registration statements pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agents full power and authority to do and perform each and every act in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Name |
Title |
Date | ||
| /s/ W. Larry Cash W. Larry Cash |
President and Director (Principal Executive Officer and Principal Financial Officer) |
May 6, 2015 | ||
| /s/ Martin G. Schweinhart Martin G. Schweinhart |
Executive Vice President and Director |
May 6, 2015 | ||
| /s/ Kevin J. Hammons Kevin J. Hammons |
Senior Vice President (Principal Accounting Officer) |
May 6, 2015 | ||
| /s/ Rachel A. Seifert Rachel A. Seifert |
Executive Vice President, Secretary and Director |
May 6, 2015 | ||
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Schedule A-1
Registrants
Exact Name of Additional Registrants
Abilene Hospital, LLC
Abilene Merger, LLC
Affinity Health Systems, LLC
Affinity Hospital, LLC
Amory HMA, LLC
Anna Hospital Corporation
Anniston HMA, LLC
Bartow HMA, LLC
Berwick Hospital Company, LLC
Big Bend Hospital Corporation
Big Spring Hospital Corporation
Biloxi H.M.A., LLC
Birmingham Holdings II, LLC
Birmingham Holdings, LLC
Blackwell HMA, LLC
Blue Island Hospital Company, LLC
Blue Island Illinois Holdings, LLC
Bluefield Holdings, LLC
Bluefield Hospital Company, LLC
Bluffton Health System LLC
Brandon HMA, LLC
Brevard HMA Holdings, LLC
Brevard HMA Hospitals, LLC
Brownwood Medical Center, LLC
Bullhead City Hospital Corporation
Bullhead City Hospital Investment Corporation
Campbell County HMA, LLC
Carlisle HMA, LLC
Carlsbad Medical Center, LLC
Carolinas JV Holdings General, LLC
Central Florida HMA Holdings, LLC
Central States HMA Holdings, LLC
Centre Hospital Corporation
Chester HMA, LLC
CHHS Holdings, LLC
CHS Kentucky Holdings, LLC
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Exact Name of Additional Registrants
CHS Pennsylvania Holdings, LLC
CHS Virginia Holdings, LLC
CHS Washington Holdings, LLC
Citrus HMA, LLC
Clarksdale HMA, LLC
Clarksville Holdings, LLC
Clarksville Holdings II, LLC
Cleveland Hospital Corporation
Cleveland Tennessee Hospital Company, LLC
Clinton, HMA, LLC
Clinton Hospital Corporation
Coatesville Hospital Corporation
Cocke County HMA, LLC
College Station Medical Center, LLC
College Station Merger, LLC
Community GP Corp.
Community Health Investment Company, LLC
Community LP Corp.
CP Hospital GP, LLC
CPLP, LLC
Crestwood Hospital, LLC
Crestwood Hospital LP, LLC
CSMC, LLC
CSRA Holdings, LLC
Deaconess Holdings, LLC
Deaconess Hospital Holdings, LLC
Deming Hospital Corporation
Desert Hospital Holdings, LLC
Detar Hospital, LLC
DHFW Holdings, LLC
DHSC, LLC
Dukes Health System, LLC
Dyersburg Hospital Corporation
Emporia Hospital Corporation
Evanston Hospital Corporation
Fallbrook Hospital Corporation
Florida HMA Holdings, LLC
Foley Hospital Corporation
Forrest City Arkansas Hospital Company, LLC
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Exact Name of Additional Registrants
Forrest City Hospital Corporation
Fort Payne Hospital Corporation
Fort Smith HMA, LLC
Frankfort Health Partner, Inc.
Franklin Hospital Corporation
Gadsden Regional Medical Center, LLC
Galesburg Hospital Corporation
Granbury Hospital Corporation
Granite City Hospital Corporation
Granite City Illinois Hospital Company, LLC
Greenville Hospital Corporation
GRMC Holdings, LLC
Hallmark Healthcare Company, LLC
Hamlet H.M.A., LLC
Health Management Associates, Inc.
Health Management General Partner, LLC
Health Management General Partner I, LLC
HMA Fentress County General Hospital, LLC
HMA Santa Rosa Medical Center, LLC
HMA Services GP, LLC
Hobbs Medco, LLC
Hospital Management Associates, LLC
Hospital of Barstow, Inc.
Hospital of Fulton, Inc.
Hospital of Louisa, Inc.
Hospital of Morristown, Inc.
Jackson HMA, LLC
Jackson Hospital Corporation (KY)
Jackson Hospital Corporation (TN)
Jefferson County HMA, LLC
Jourdanton Hospital Corporation
Kay County Hospital Corporation
Kay County Oklahoma Hospital Company, LLC
Kennett HMA, LLC
Key West HMA, LLC
Kirksville Hospital Company, LLC
Knoxville HMA Holdings, LLC
Lakeway Hospital Corporation
Lancaster Hospital Corporation
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Exact Name of Additional Registrants
Las Cruces Medical Center, LLC
Lea Regional Hospital, LLC
Lehigh HMA, LLC
Lexington Hospital Corporation
Longview Clinic Operations Company, LLC
Longview Merger, LLC
LRH, LLC
Lutheran Health Network of Indiana, LLC
Madison HMA, LLC
Marion Hospital Corporation
Marshall County HMA, LLC
Martin Hospital Corporation
Massillon Community Health System LLC
Massillon Health System LLC
Massillon Holdings, LLC
Mayes County HMA, LLC
McKenzie Tennessee Hospital Company, LLC
McNairy Hospital Corporation
MCSA, L.L.C.
Medical Center of Brownwood, LLC
Melbourne HMA, LLC
Merger Legacy Holdings, LLC
Mesquite HMA General, LLC
Metro Knoxville HMA, LLC
MMC of Nevada, LLC
Mississippi HMA Holdings I, LLC
Mississippi HMA Holdings II, LLC
Moberly Hospital Company, LLC
Monroe HMA, LLC
MWMC Holdings, LLC
Naples HMA, LLC
Natchez Hospital Company, LLC
National Healthcare of Leesville, Inc.
National Healthcare of Mt. Vernon, Inc.
Navarro Regional, LLC
NC-DSH, LLC
Northwest Arkansas Hospitals, LLC
Northampton Hospital Company, LLC
Northwest Hospital, LLC
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Table of Contents
Exact Name of Additional Registrants
NOV Holdings, LLC
NRH, LLC
Oak Hill Hospital Corporation
Oro Valley Hospital, LLC
Palmer-Wasilla Health System, LLC
Payson Hospital Corporation
Pennsylvania Hospital Company, LLC
Phillips Hospital Corporation
Phoenixville Hospital Company, LLC
Poplar Bluff Regional Medical Center, LLC
Port Charlotte HMA, LLC
Pottstown Hospital Company, LLC
Punta Gorda HMA, LLC
QHG Georgia Holdings II, LLC
QHG Georgia Holdings, Inc.
QHG of Bluffton Company, LLC
QHG of Clinton County, Inc.
QHG of Enterprise, Inc.
QHG of Forrest County, Inc.
QHG of Fort Wayne Company, LLC
QHG of Hattiesburg, Inc.
QHG of Massillon, Inc.
QHG of South Carolina, Inc.
QHG of Spartanburg, Inc.
QHG of Springdale, Inc.
Quorum Health Resources, LLC
Red Bud Hospital Corporation
Red Bud Illinois Hospital Company, LLC
Regional Hospital of Longview, LLC
River Oaks Hospital, LLC
River Region Medical Corporation
Rockledge HMA, LLC
ROH, LLC
Roswell Hospital Corporation
Ruston Hospital Corporation
Ruston Louisiana Hospital Company, LLC
SACMC, LLC
Salem Hospital Corporation
San Angelo Community Medical Center, LLC
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Table of Contents
Exact Name of Additional Registrants
San Angelo Medical, LLC
San Miguel Hospital Corporation
Scranton Holdings, LLC
Scranton Hospital Company, LLC
Scranton Quincy Holdings, LLC
Scranton Quincy Hospital Company, LLC
Sebastian Hospital, LLC
Sebring Hospital Management Associates, LLC
Seminole HMA, LLC
Sharon Pennsylvania Holdings, LLC
Sharon Pennsylvania Hospital Company, LLC
Shelbyville Hospital Corporation
Siloam Springs Arkansas Hospital Company, LLC
Siloam Springs Holdings, LLC
Southeast HMA Holdings, LLC
Southern Texas Medical Center, LLC
Southwest Florida HMA Holdings, LLC
Spokane Valley Washington Hospital Company, LLC
Spokane Washington Hospital Company, LLC
Statesville HMA, LLC
Tennyson Holdings, LLC
Tomball Texas Holdings, LLC
Tomball Texas Hospital Company, LLC
Tooele Hospital Corporation
Triad Healthcare Corporation
Triad Holdings III, LLC
Triad Holdings IV, LLC
Triad Holdings V, LLC
Triad Nevada Holdings, LLC
Triad of Alabama, LLC
Triad of Oregon, LLC
Triad-ARMC, LLC
Triad-El Dorado, Inc.
Triad-Navarro Regional Hospital Subsidiary, LLC
Tunkhannock Hospital Company, LLC
VHC Medical, LLC
Van Buren H.M.A., LLC
Venice HMA, LLC
Vicksburg Healthcare, LLC
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Table of Contents
Exact Name of Additional Registrants
Victoria Hospital, LLC
Virginia Hospital Company, LLC
Warren Ohio Hospital Company, LLC
Warren Ohio Rehab Hospital Company, LLC
Watsonville Hospital Corporation
Waukegan Hospital Corporation
Waukegan Illinois Hospital Company, LLC
Weatherford Hospital Corporation
Weatherford Texas Hospital Company, LLC
Webb Hospital Corporation
Webb Hospital Holdings, LLC
Wesley Health System LLC
West Grove Hospital Company, LLC
WHMC, LLC
Wilkes-Barre Behavioral Hospital Company, LLC
Wilkes-Barre Holdings, LLC
Wilkes-Barre Hospital Company, LLC
Williamston Hospital Corporation
Winder HMA, LLC
Women & Children’s Hospital, LLC
Woodland Heights Medical Center, LLC
Woodward Health System, LLC
Yakima HMA, LLC
York Pennsylvania Holdings, LLC
York Pennsylvania Hospital Company, LLC
Youngstown Ohio Hospital Company, LLC
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Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Franklin, State of Tennessee, on May 6, 2015.
| Brownwood Hospital, L.P. | ||||
| By: | Brownwood Medical Center, LLC | |||
| Its: | General Partner | |||
| College Station Hospital, L.P. | ||||
| By: | College Station Medical Center, LLC | |||
| Its: | General Partner | |||
| Navarro Hospital, L.P. | ||||
| By: | Navarro Regional, LLC | |||
| Its: | General Partner | |||
| Victoria of Texas, L.P. | ||||
| By: | Detar Hospital, LLC | |||
| Its: | General Partner | |||
| QHG Georgia, LP | ||||
| By: | QHG Georgia Holdings II, LLC | |||
| Its: | General Partner | |||
| Carolinas JV Holdings, L.P. | ||||
| By: | Carolinas JV Holdings General, LLC | |||
| Its: | General Partner | |||
| Health Management Associates, LP | ||||
| By: | Health Management General Partner, LLC | |||
| Its: | General Partner | |||
| HMA Hospitals Holdings, LP | ||||
| By: | Health Management General Partner, LLC | |||
| Its: | General Partner | |||
| Hospital Management Services of Florida, LP | ||||
| By: | HMA Services GP, LLC | |||
| Its: | General Partner | |||
| Longview Medical Center, L.P. | ||||
| By: | Regional Hospital of Longview, LLC | |||
| Its: | General Partner | |||
| Tennessee HMA Holdings, L.P. | ||||
| By: | Health Management General Partner I, LLC | |||
| Its: | General Partner | |||
| By: | /s/ W. Larry Cash | |||
| W. Larry Cash | ||||
| President | ||||
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints W. Larry Cash and Rachel A. Seifert and each of them singly, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all (i) amendments (including post-effective amendments) and additions to this registration statement and (ii) any and all additional registration statements pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and
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Exchange Commission, granting unto each said attorney-in-fact and agents full power and authority to do and perform each and every act in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them or their or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Name |
Title |
Date | ||
| /s/ W. Larry Cash W. Larry Cash |
President and Director (Principal Executive Officer and Principal Financial Officer) |
May 6, 2015 | ||
| /s/ Martin G. Schweinhart Martin G. Schweinhart |
Executive Vice President and Director |
May 6, 2015 | ||
| /s/ Kevin J. Hammons Kevin J. Hammons |
Senior Vice President (Principal Accounting Officer) |
May 6, 2015 | ||
| /s/ Rachel A. Seifert Rachel A. Seifert |
Executive Vice President, Secretary and Director |
May 6, 2015 | ||
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Exhibit 4.1
COMMUNITY HEALTH SYSTEMS, INC.,
Issuer
REGIONS BANK,
Trustee
INDENTURE
Dated as of ●
Senior Debt Securities
CROSS-REFERENCE TABLE*
Reconciliation and tie showing the location in the Indenture dated as of ● of the provisions inserted pursuant to Sections 310 to 318(a), inclusive, of the Trust Indenture Act of 1939, as amended.
| Trust Indenture Act Section |
Indenture Section | |||||
| Section 310 |
(a) (1) | 609 | ||||
| (a) (2) | 609 | |||||
| (a) (3) | Not Applicable | |||||
| (a) (4) | Not Applicable | |||||
| (a) (5) | 609 | |||||
| (b) | 608 and 610(d) | |||||
| (c) | Not Applicable | |||||
| Section 311 |
(a) | 613 | ||||
| (b) | 613 | |||||
| (c) | Not Applicable | |||||
| Section 312 |
(a) | 701 and 702(a) | ||||
| (b) | 702(b) | |||||
| (c) | 702(c) | |||||
| Section 313 |
(a) | 703(a) | ||||
| (b) | 703(b) | |||||
| (c) | 703(a) and 703(b) | |||||
| (d) | 703(a) | |||||
| Section 314 |
(a) | 704 | ||||
| (b) | Not Applicable | |||||
| (c) | 102 | |||||
| (c) (1) | 102 | |||||
| (c) (2) | 102 | |||||
| (c) (3) | Not Applicable | |||||
| (d) | Not Applicable | |||||
| (e) | 102 | |||||
| Section 315 |
(a) | 601(a) | ||||
| (b) | 602 and 703(a) (7) | |||||
| (c) | 601(b) | |||||
| (d) | 601(c) | |||||
| (d) (1) | 601(a)(1) | |||||
| (d) (2) | 601(c)(2) | |||||
| (d) (3) | 601(c)(3) | |||||
| (e) | 514 | |||||
| Section 316 |
(a) (1) (A) | 502 and 512 | ||||
| (a) (1) (B) | 513 | |||||
| (a) (2) | Not Applicable | |||||
| (b) | 508 | |||||
| Section 317 |
(a) (1) | 503 | ||||
| (a) (2) | 504 | |||||
| (b) | 1003 | |||||
| Section 318 |
(a) | 107 | ||||
| (b) | Not Applicable | |||||
| (c) | 107 | |||||
| * | NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. |
TABLE OF CONTENTS
| PARTIES |
1 | |||||||
| RECITALS |
1 | |||||||
| ARTICLE 1 Definitions and Other Provisions of General Application |
1 | |||||||
| Section 101. | Definitions. |
1 | ||||||
| Section 102. | Compliance Certificates and Opinions. |
11 | ||||||
| Section 103. | Form of Documents Delivered to Trustee. |
11 | ||||||
| Section 104. | Acts of Holders. |
12 | ||||||
| Section 105. | Notices, Etc., to Trustee and the Company. |
14 | ||||||
| Section 106. | Notice to Holders; Waiver. |
14 | ||||||
| Section 107. | Conflict with Trust Indenture Act. |
15 | ||||||
| Section 108. | Effect of Headings and Table of Contents. |
15 | ||||||
| Section 109. | Successors and Assigns. |
15 | ||||||
| Section 110. | Separability Clause. |
15 | ||||||
| Section 111. | Benefits of Indenture. |
15 | ||||||
| Section 112. | Governing Law. |
16 | ||||||
| Section 113. | Non-Business Day. |
16 | ||||||
| Section 114. | Immunity of Incorporators, Stockholders, Directors and Officers. |
16 | ||||||
| Section 115. | Certain Matters Relating to Currencies. |
17 | ||||||
| Section 116. | Language of Notices, Etc. |
17 | ||||||
| ARTICLE 2 Security Forms |
17 | |||||||
| Section 201. | Forms of Securities. |
17 | ||||||
| Section 202. | Form of Trustee’s Certificate of Authentication. |
18 | ||||||
| Section 203. | Securities in Global Form. |
18 | ||||||
| Section 204. | CUSIP Numbers. |
18 | ||||||
| ARTICLE 3 The Securities |
19 | |||||||
| Section 301. | Title; Payment and Terms. |
19 | ||||||
| Section 302. | Denominations and Currencies. |
23 | ||||||
| Section 303. | Execution, Authentication, Delivery and Dating. |
23 | ||||||
| Section 304. | Temporary Securities and Exchange of Securities. |
24 | ||||||
| Section 305. | Registration, Registration of Transfer and Exchange. |
28 | ||||||
| Section 306. | Mutilated, Destroyed, Lost and Stolen Securities and Coupons. |
31 | ||||||
| Section 307. | Payment of Interest; Interest Rights Preserved. |
32 | ||||||
| Section 308. | Persons Deemed Owners. |
34 | ||||||
| Section 309. | Cancellation. |
34 | ||||||
| Section 310. | Computation of Interest. |
35 | ||||||
| Section 311. | Currency and Manner of Payments in Respect of Securities. |
35 | ||||||
| Section 312. | Appointment and Resignation of Currency Determination Agent. |
38 | ||||||
| Section 313. | Ranking. |
38 | ||||||
| ARTICLE 4 Satisfaction and Discharge |
38 | |||||||
| Section 401. | Option to Effect Legal Defeasance or Covenant Defeasance. |
38 | ||||||
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| Section 402. | Legal Defeasance and Discharge. |
39 | ||||||
| Section 403. | Covenant Defeasance. |
39 | ||||||
| Section 404. | Conditions to Legal or Covenant Defeasance. |
40 | ||||||
| Section 405. | Satisfaction and Discharge of Indenture. |
41 | ||||||
| Section 406. | Survival of Certain Obligations. |
42 | ||||||
| Section 407. | Acknowledgment of Discharge by Trustee. |
42 | ||||||
| Section 408. | Application of Trust Moneys. |
42 | ||||||
| Section 409. | Repayment to the Company; Unclaimed Money. |
43 | ||||||
| Section 410. | Reinstatement. |
43 | ||||||
| ARTICLE 5 Remedies |
44 | |||||||
| Section 501. | Events of Default. |
44 | ||||||
| Section 502. | Acceleration of Maturity; Rescission and Annulment. |
45 | ||||||
| Section 503. | Collection of Indebtedness and Suits for Enforcement by Trustee. |
46 | ||||||
| Section 504. | Trustee May File Proofs of Claim. |
47 | ||||||
| Section 505. | Trustee May Enforce Claims Without Possession of Securities or Coupons. |
48 | ||||||
| Section 506. | Application of Money Collected. |
48 | ||||||
| Section 507. | Limitation on Suits. |
49 | ||||||
| Section 508. | Unconditional Right of Holders to Receive Principal (and Premium, if any) and Interest, if any. |
49 | ||||||
| Section 509. | Restoration of Rights and Remedies. |
50 | ||||||
| Section 510. | Rights and Remedies Cumulative. |
50 | ||||||
| Section 511. | Delay or Omission Not Waiver. |
50 | ||||||
| Section 512. | Control by Holders. |
50 | ||||||
| Section 513. | Waiver of Past Defaults. |
51 | ||||||
| Section 514. | Undertaking for Costs. |
51 | ||||||
| Section 515. | Waiver of Stay or Extension Laws. |
51 | ||||||
| Section 516. | Judgment Currency. |
52 | ||||||
| ARTICLE 6 The Trustee |
52 | |||||||
| Section 601. | Certain Duties and Responsibilities. |
52 | ||||||
| Section 602. | Notice of Defaults. |
53 | ||||||
| Section 603. | Certain Rights of Trustee. |
54 | ||||||
| Section 604. | Not Responsible for Recitals or Issuance of Securities. |
55 | ||||||
| Section 605. | May Hold Securities. |
55 | ||||||
| Section 606. | Money Held in Trust. |
55 | ||||||
| Section 607. | Compensation and Reimbursement. |
56 | ||||||
| Section 608. | Disqualification; Conflicting Interests. |
56 | ||||||
| Section 609. | Corporate Trustee Required; Eligibility. |
57 | ||||||
| Section 610. | Resignation and Removal; Appointment of Successor. |
57 | ||||||
| Section 611. | Acceptance of Appointment by Successor. |
58 | ||||||
| Section 612. | Merger, Conversion, Consolidation or Succession to Business. |
59 | ||||||
| Section 613. | Preferential Collection of Claims Against Company. |
60 | ||||||
| Section 614. | Authenticating Agents. |
60 | ||||||
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| ARTICLE 7 Holders’ Lists and Reports by Trustee and the Company |
61 | |||||||
| Section 701. | Company to Furnish Trustee Names and Addresses of Holders. |
61 | ||||||
| Section 702. | Preservation of Information; Communications to Holders. |
62 | ||||||
| Section 703. | Reports by Trustee. |
63 | ||||||
| Section 704. | Reports by Company. |
63 | ||||||
| ARTICLE 8 Consolidation, Merger, Conveyance or Transfer |
64 | |||||||
| Section 801. | Company May Consolidate, Etc., Only on Certain Terms. |
64 | ||||||
| Section 802. | Successor Person Substituted. |
65 | ||||||
| ARTICLE 9 Supplemental Indentures |
65 | |||||||
| Section 901. | Supplemental Indentures without Consent of Holders. |
65 | ||||||
| Section 902. | Supplemental Indentures with Consent of Holders. |
67 | ||||||
| Section 903. | Execution of Supplemental Indentures. |
68 | ||||||
| Section 904. | Effect of Supplemental Indentures. |
69 | ||||||
| Section 905. | Conformity with Trust Indenture Act. |
69 | ||||||
| Section 906. | Reference in Securities to Supplemental Indentures. |
69 | ||||||
| ARTICLE 10 Covenants |
69 | |||||||
| Section 1001. | Payment of Principal (and Premium, if any) and Interest, if any. |
69 | ||||||
| Section 1002. | Maintenance of Office or Agency. |
70 | ||||||
| Section 1003. | Money for Securities Payments to be Held in Trust. |
71 | ||||||
| Section 1004. | Statements as to Compliance. |
72 | ||||||
| Section 1005. | Corporate Existence. |
73 | ||||||
| Section 1006. | Waiver of Certain Covenants. |
73 | ||||||
| Section 1007. | Calculation of Original Issue Discount. |
73 | ||||||
| Section 1008. | Statement by Officers as to Default. |
73 | ||||||
| ARTICLE 11 Redemption of Securities |
73 | |||||||
| Section 1101. | Applicability of this Article. |
73 | ||||||
| Section 1102. | Election to Redeem; Notice to Trustee. |
74 | ||||||
| Section 1103. | Selection by Trustee of Securities to be Redeemed. |
74 | ||||||
| Section 1104. | Notice of Redemption. |
74 | ||||||
| Section 1105. | Deposit of Redemption Price. |
75 | ||||||
| Section 1106. | Securities Payable on Redemption Date. |
76 | ||||||
| Section 1107. | Securities Redeemed in Part. |
77 | ||||||
| ARTICLE 12 Sinking Funds |
77 | |||||||
| Section 1201. | Applicability of this Article. |
77 | ||||||
| Section 1202. | Satisfaction of Sinking Fund Payments with Securities. |
77 | ||||||
| Section 1203. | Redemption of Securities for Sinking Fund. |
78 | ||||||
| ARTICLE 13 Meetings of Holders of Securities |
78 | |||||||
| Section 1301. | Purposes for which Meetings May Be Called. |
78 | ||||||
| Section 1302. | Call, Notice and Place of Meetings. |
78 | ||||||
| Section 1303. | Persons Entitled to Vote at Meetings. |
79 | ||||||
| Section 1304. | Quorum; Action. |
79 | ||||||
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| Section 1305. | Determination of Voting Rights; Conduct and Adjournment of Meetings. |
80 | ||||||
| Section 1306. | Counting Votes and Recording Action of Meetings. |
80 | ||||||
| ARTICLE 14 Note Guarantees |
81 | |||||||
| Section 1401. | Guarantee. |
81 | ||||||
| Section 1402. | Limitation on Guarantor Liability. |
82 | ||||||
| Section 1403. | Execution and Delivery of Note Guarantee. |
82 | ||||||
| Section 1404. | Guarantors May Consolidate, etc., on Certain Terms. |
83 | ||||||
| Section 1405. | Releases. |
84 | ||||||
EXHIBITS
| EXHIBIT A. |
Form of Securities. | |
| EXHIBIT B. |
Form of Certificate To Be Delivered to Euroclear or Clearstream Banking by a Beneficial Owner of Securities in Order to Receive a Definitive Bearer Security in Exchange for an Interest in a Temporary Global Security or to Exchange an Interest in a Temporary Global Security for an Interest in a Permanent Global Security. | |
| EXHIBIT C. |
Form of Certificate To Be Given to the Appropriate Trustee by Euroclear or Clearstream Banking Regarding the Exchange of a Temporary Global Security for Definitive Securities or for a Portion of a Permanent Global Security. | |
| EXHIBIT D. |
Form of Certificate To Be Delivered to Euroclear or Clearstream Banking by a Beneficial Owner of Securities in Order to Receive Payment on a Temporary Global Security. | |
| EXHIBIT E. |
Form of Certificate To Be Given to the Appropriate Trustee by Euroclear or Clearstream Banking Regarding Payment on a Temporary Global Security. | |
| EXHIBIT F. |
Form of Notation of Note Guarantee. | |
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INDENTURE dated as of ●, between COMMUNITY HEALTH SYSTEMS, INC., a corporation duly incorporated and existing under the laws of Delaware and having its principal executive office at 4000 Meridian Boulevard, Franklin, Tennessee 37067 (hereinafter called “the Company”), and REGIONS BANK, an Alabama banking corporation, as Trustee (hereinafter called the “Trustee”).
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its lawful purposes securities (hereinafter called the “Securities”) evidencing its senior indebtedness and has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of the Securities, unlimited as to principal amount, to have such titles, to bear such rates of interest, to mature at such time or times and to have such other provisions as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done, and the Company proposes to do all things necessary to make the Securities, when executed by the Company and authenticated and delivered by the Trustee hereunder and duly issued by the Company, the valid obligations of the Company as hereinafter provided.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or series thereof, as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 101. Definitions.
For all purposes of this Indenture and all Securities issued hereunder, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States, and the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States at the date or time of such computation; and
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(4) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Three and Article Six, are defined in those Articles.
“Act”, when used with respect to any Holder, has the meaning specified in Section 104.
“Affiliate” means, with respect to a specified Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control”, when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Authenticating Agent” means any Person authorized to authenticate and deliver Securities on behalf of the Trustee for the Securities of any series pursuant to Section 614.
“Authorized Newspaper” means a newspaper customarily published at least once a day for at least five days in each calendar week and of general circulation in the City of New York, in London and, to the extent the Securities are listed on the Luxembourg Stock Exchange and the Luxembourg Stock Exchange shall so require, in Luxembourg or, if it shall be impracticable in the opinion of the Company to make such publication, in another capital city in Western Europe. Such publication (which may be in different newspapers) is expected to be made in the Eastern edition of The Wall Street Journal, in the London edition of the Financial Times and, if applicable, in the Luxemburger Wort.
“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
“Bearer Security” means any Security established pursuant to Section 201 which is payable to bearer.
“Board of Directors” means:
(1) with respect to the Company, either the board of directors or any duly authorized committee of that board or any director or directors and/or officer or officers to whom that board or committee shall have duly delegated its authority, of the Company;
(2) with respect to any other corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;
(3) with respect to a partnership, the board of directors of the general partner of the partnership;
(4) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and
-2-
(5) with respect to any other Person, the board or committee of such Person serving a similar function.
“Board Resolution” means, when used with reference to any Person, (1) a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person, as the case may be, to have been duly adopted by its Board of Directors or the managing member(s) or the managing partner(s) of such Person and to be in full force and effect on the date of such certification, or (2) a certificate signed by the director or directors or officer or officers or managing member(s) or managing partners(s) to whom the Board of Directors shall have duly delegated its authority, and delivered to the Trustee for the Securities of any series.
“Business Day” means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which commercial banks are authorized or required by law, regulation or executive order to close in The City of New York or in the city in which the Corporate Trust Office is located; provided, however, that, with respect to Securities not denominated in Dollars, the day is also not a day on which commercial banks are authorized or required by law, regulation or executive order to close in the Principal Financial Center of the country issuing the Foreign Currency or currency unit or, if the Foreign Currency or currency unit is euro, the day is also a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) System is open; provided, further, that, with respect to LIBOR Securities, the day is also a London Business Day.
“Capital Stock” means, with respect to any Person, shares, interests, rights to purchase, warrants, options, participation or other equivalents of or interests in (however designated) equity of such Person, including any preferred stock, but excluding any debt securities convertible into such equity.
“Certificate of a Firm of Independent Public Accountants” means a certificate signed by any firm of independent public accountants of recognized standing selected by the Company. The term “independent” when used with respect to any specified firm of public accountants means such a firm which (1) is in fact independent, (2) does not have any direct financial interest or any material indirect financial interest in the Company or in any other obligor upon the Securities of any series or in any affiliate of the Company or of such other obligor, and (3) is not connected with the Company or such other obligor or any affiliate of the Company or of such other obligor, as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions, but such firm may be the regular auditors employed by the Company. Whenever it is herein provided that any Certificate of a Firm of Independent Public Accountants shall be furnished to the Trustee for Securities of any series, such Certificate shall state that the signer has read this definition and that the signer is independent within the meaning hereof.
“Code” means the Internal Revenue Code of 1986, as amended, and the regulations thereunder.
“Clearstream Banking” means Clearstream Banking S.A. or its successor.
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“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on such date.
“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor corporation.
“Company Request” and “Company Order” mean a written request or order signed in the name of the Company, as the case may be by (1) the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company, as the case may be, or (2) by any two Persons designated in a Company Order previously delivered to the Trustee for Securities of any series by any two of the foregoing officers and delivered to the Trustee for Securities of any series.
“Component Currency” has the meaning specified in Section 311(e).
“Conversion Event” means the unavailability of any Foreign Currency or currency unit due to the imposition of exchange controls or other circumstances beyond the Company’s control.
“Corporate Trust Office” means the office of the Trustee for Securities of any series at which at any particular time its corporate trust business shall be principally administered, which office of Regions Bank, at the date of the execution of this Indenture, is located at 150 4th Avenue North, Suite 900, Nashville, Tennessee 37219, Attention: Corporate Trust Services, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
“corporation” includes corporations, limited liability companies, associations, companies and business trusts.
“coupon” means any interest coupon appertaining to a Bearer Security.
“Currency Determination Agent” means, with respect to Securities of any series, unless otherwise specified in the Securities of any series, a New York Clearing House bank designated pursuant to Section 301 or Section 312.
“Defaulted Interest” has the meaning specified in Section 307.
“Depositary” means, with respect to the Securities of any series issuable or issued in the form of a Global Security, the Person designated as Depositary by the Company pursuant to Section 301 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as used with respect to the Securities of any such series shall mean the Depositary with respect to the Securities of that series.
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“Dollars” and the sign “$” mean the currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
“Election Date” has the meaning specified in Section 311(e).
“Euroclear” means Euroclear Bank S.A./N.V. or its successor.
“Event of Default” has the meaning specified in Section 501.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, as in force at the date as of which this Indenture is executed; provided, however, that in the event the Securities Exchange Act of 1934 is amended after such date, “Exchange Act” means, to the extent required by any such amendment, the Securities Exchange Act of 1934 as so amended.
“Exchange Date” has the meaning specified in Section 304.
“Foreign Currency” means a currency issued and actively maintained as a country’s recognized unit of domestic exchange by the government of any country other than the United States or by any recognized confederation or association of such governments, and such term shall include, without limitation, the euro.
“Global Exchange Agent” has the meaning specified in Section 304.
“Global Securities” means Securities in global form.
“Government Obligations” means securities which are (i) direct obligations of the government which issued the currency in which the Securities of a particular series are payable (except as provided in Sections 311(b) and 311(d), in which case with respect to Securities for which an election has occurred pursuant to Section 311(b), or a Conversion Event has occurred as provided in Section 311(d), such obligations shall be issued in the currency or currency unit in which such Securities are payable as a result of such election or Conversion Event) or (ii) obligations of a Person controlled or supervised by or acting as an agency or instrumentality of the government which issued the currency in which the Securities of such series are payable (except as provided in Sections 311(b) and 311(d), in which case with respect to Securities for which an election has occurred pursuant to Section 311(b), or a Conversion Event has occurred as provided in Section 311(d)), such obligations shall be issued in the currency or currency unit in which such Securities are payable as a result of such election or Conversion Event), the payment of which is unconditionally guaranteed by such government, which, in either case, are full faith and credit obligations of such government payable in such currency and are not callable or redeemable at the option of the issuer thereof.
“Guarantors” means any Subsidiary of the Company and any other Affiliate of the Company who specified in a Board Resolution of the Company establishing a series of Securities pursuant to Section 301 hereof, for the purpose of providing a Note Guarantee of Securities pursuant to this Indenture until (a) a successor Person shall have become such pursuant to the
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applicable provisions of this Indenture, and thereafter “Guarantors” shall mean such successor Person or (b) such Person shall have been released from its Note Guarantee pursuant to the provisions of this Indenture.
“Holder” means, when used with respect to any Security, in the case of a Registered Security, the Person in whose name a Security is registered in the Security Register, and in the case of a Bearer Security, the bearer thereof and, when used with respect to any coupon, means any bearer thereof.
“Identifying Numbers” has the meaning specified in Section 204.
“Incur” means issue, create, assume, guarantee, incur or otherwise become liable for; and the terms “Incurred” and “Incurrence” have meanings correlative to the foregoing.
“Indenture” means this instrument as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of a particular series of Securities established as contemplated by Section 301.
“Indexed Security” means any Security as to which the amount of payments of principal (and premium, if any) and/or interest, if any, due thereon is determined with reference to the rate of exchange between the currency or currency unit in which the Security is denominated and any other specified currency or currency unit, to the relationship between two or more currencies or currency units, to the price of one or more specified securities or commodities, to one or more securities or commodities exchange indices or other indices or by other similar methods or formulas, all as specified in accordance with Section 301.
“interest” means, when used with respect to an OID Security which by its terms bears interest only after Maturity, interest payable after Maturity.
“Interest Payment Date” means, when used with respect to any Security, the Stated Maturity of an installment of interest on such Security.
“Issue Date” means the date on which the Securities of a particular series are originally issued under this Indenture.
“Judgment Date” has the meaning specified in Section 516.
“LIBOR” means, with respect to any series of Securities, the rate specified as LIBOR for such Securities in accordance with Section 301.
“LIBOR Currency” means the currency specified pursuant to Section 301 as to which LIBOR will be calculated or, if no currency is specified pursuant to Section 301, Dollars.
“LIBOR Security” means any Security which bears interest at a floating rate calculated with reference to LIBOR.
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“London Business Day” means, with respect to any LIBOR Security, a day on which commercial banks are open for business, including dealings in the LIBOR Currency, in London.
“Luxembourg Stock Exchange” means, unless specified with respect to any particular series of Securities, the Luxembourg Stock Exchange.
“Market Exchange Rate” means, with respect to any Foreign Currency or currency unit on any date, unless otherwise specified in accordance with Section 301, the noon buying rate in The City of New York for cable transfers in such Foreign Currency or currency unit as certified for customs purposes by the Federal Reserve Bank of New York for such Foreign Currency or currency unit.
“Maturity” means, when used with respect to any Security, the date on which the principal (or, if the context so requires, in the case of an OID Security, a lesser amount or, in the case of an Indexed Security, an amount determined in accordance with the specified terms of that Security) of that Security becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, request for redemption, repayment at the option of the holder, pursuant to any sinking fund or otherwise.
“Note Guarantee” has the meaning stated in Section 1401.
“Notice of Default” has the meaning specified in Section 501(3).
“Officers’ Certificate” means, when used with reference to the Company, a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the Chief Executive Officer, the President or a Vice President (any reference herein to a Vice President of the Company, as the case may be, shall be deemed to include any Vice President of the Company, as the case may be, whether or not designated by a number or a word or words added before or after the title “Vice President”), and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company, as the case may be, and delivered to the Trustee for the Securities of any series.
“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel to the Company or any Subsidiary of the Company.
“OID Security” means a Security which provides for an amount (excluding any amounts attributable to accrued but unpaid interest thereon) less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.
“Outstanding” means, when used with respect to Securities, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee for such Securities or delivered to such Trustee for cancellation;
(2) Securities or portions thereof for whose payment or redemption money in the necessary amount and in the required currency or currency unit has been theretofore
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deposited with the Trustee for such Securities or any Paying Agent (other than the Company or any Guarantor (if any) or other obligor upon the Securities) in trust or set aside and segregated in trust by the Company or any Guarantor (if any) or other obligor upon the Securities (if the Company or any Guarantor (if any) or other obligor upon the Securities shall act as its own Paying Agent) for the Holders of such Securities; provided, however, that, if such Securities or portions thereof are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture, or provision therefor satisfactory to such Trustee has been made; and
(3) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented proof satisfactory to the Trustee for such Securities that any such Securities are held by a bona fide holder in due course;
provided, however, that in determining whether the Holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, (a) Securities owned by the Company, the Guarantors (if any) or any other obligor upon the Securities or any Affiliate of the Company, the Guarantors (if any) or such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee for such Securities shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of such Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of such Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company, the Guarantors (if any) or any other obligor upon the Securities or any Affiliate of the Company, the Guarantors (if any) or of such other obligor, (b) the principal amount of an OID Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration pursuant to Section 502 and (c) the principal amount of a Security denominated in a Foreign Currency or currency unit that shall be deemed to be outstanding for such purposes shall be determined in accordance with Section 115.
“Paying Agent” means Regions Bank, or any other Person authorized by the Company to pay the principal of (and premium, if any) or interest, if any, on any Securities of any series on behalf of the Company.
“Person” means any individual, firm, corporation, partnership, association, joint venture, tribunal, limited liability company, trust, government or political subdivision or agency or instrumentality thereof, or any other entity or organization.
“Place of Payment” means, when used with respect to the Securities of any particular series, the place or places where the principal of (and premium, if any) and interest, if any, on the Securities of that series are payable, as contemplated by Section 301 and 1002.
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“Predecessor Security” means, with respect to any particular Security, every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security, and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a mutilated, destroyed, lost or stolen coupon appertains shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Security or the Security to which the mutilated, destroyed, lost or stolen coupon appertains, as the case may be.
“Principal Financial Center” means, unless otherwise specified in accordance with Section 301:
(1) the capital city of the country issuing the Foreign Currency or currency unit, except that with respect to Dollars, Australian dollars, Canadian dollars, South African rand and Swiss francs, the “Principal Financial Center” will be The City of New York, Sydney and Melbourne, Toronto, Johannesburg and Zurich, respectively, and with respect to Euros, the “Principal Financial Center” will be London; or
(2) the capital city of the country to which the LIBOR Currency relates, except that with respect to Dollars, Canadian dollars, South African rand and Swiss francs, the “Principal Financial Center” will be The City of New York, Toronto, Johannesburg and Zurich, respectively, and with respect to Euros, the “Principal Financial Center” will be London.
“Property” means any asset, revenue or any other property, including Capital Stock, whether tangible or intangible, real or personal, including, without limitation, any right to receive income.
“Redemption Date” means, when used with respect to any Security to be redeemed in whole or in part, the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price” means, when used with respect to any Security to be redeemed, the price at which it is to be redeemed pursuant to the terms of this Indenture or in any Security issued hereunder.
“Registered Security” means any Security established pursuant to this Indenture which is registered in the Security Register.
“Regular Record Date” means, with respect to the interest payable on any Interest Payment Date on the Registered Securities of any series, the date, if any, specified for that purpose as contemplated by Section 301 whether or not a Business Day.
“Responsible Officer” means, when used with respect to the Trustee for any series of Securities, (i) any vice president, assistant vice president, treasurer, assistant treasurer or any trust officer of the Trustee who shall have direct responsibility for the administration of the trust created by this Indenture or (ii) any other officer of the Corporate Trust Department of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject and who is charged with the administration of this Indenture.
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“Securities” means securities evidencing indebtedness of the Company authenticated and delivered under this Indenture.
“Security Register” and “Security Registrar” have the respective meanings specified in Section 305.
“series” of Securities means all Securities denoted as part of the same series authorized by or pursuant to a particular Board Resolution.
“Special Record Date” means, with respect to the payment of any Defaulted Interest on the Registered Securities of any series, a date fixed by the Trustee for such series pursuant to Section 307.
“Stated Maturity” means, when used with respect to any Security or any installment of principal thereof or interest thereon, the date specified in such Security or a coupon representing such installment of interest as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of capital stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person, (ii) such Person and one or more Subsidiaries of such Person or (iii) one or more Subsidiaries of such Person.
“Substitute Date” has the meaning specified in Section 516.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, as in force at the date as of which this Indenture was executed; provided, however, that in the event the Trust Indenture Act is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument and, subject to the provisions of Article Six hereof, shall also include its successors and assigns as Trustee hereunder. If there shall be at one time more than one Trustee hereunder, “Trustee” shall mean each such Trustee and shall apply to each such Trustee only with respect to those series of Securities with respect to which it is serving as Trustee.
“United States” means, unless otherwise specified with respect to Securities of any series, the United States of America (including the states and the District of Columbia), its territories, its possessions (which include, at the date of this Indenture, Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands) and other areas subject to its jurisdiction.
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“Yield to Maturity” means, when used with respect to any OID Security, the yield to maturity, if any, set forth on the face thereof.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee for any series of Securities to take any action under any provision of this Indenture or any supplement hereto, the Company shall furnish to such Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with, and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate (other than certificates provided pursuant to Section 1004) or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, or a certificate or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the opinion, certificate or representations with respect to matters upon which his certificate or opinion is based are erroneous.
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Any such Opinion of Counsel or certificate or representations may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing. If Securities of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of such series may, alternatively, be embodied in and evidenced by the record of Holders of Securities of such series voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly called and held in accordance with the provisions of Article Thirteen, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee for the appropriate series of Securities and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee for the appropriate series of Securities and the Company and any agent of such Trustee or the Company, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 1306.
The Company may at its discretion set a record date for purposes of determining the identity of Holders of Registered Securities entitled to vote or consent to any action by vote or consent authorized or permitted under this Indenture, but the Company shall have no obligation to do so. If not set by the Company prior to the first solicitation of Holders of Registered Securities of a particular series made by any Person in respect of any such action, or, in the case of any such vote, prior to such vote, the record date for any such action or vote shall be 30 days prior to the first solicitation of such vote or consent. Upon the fixing of such a record date, those persons who were Holders of Registered Securities at such record date (or their duly designated proxies), and only those persons, shall be entitled with respect to such Registered Securities to take such action by vote or consent or to revoke any vote or consent previously given, whether or not such persons continue to be Holders after such record date.
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(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by an officer of a corporation or association or a member of a partnership, or an official of a public or governmental body, on behalf of such corporation, association, partnership or public or governmental body or by a fiduciary, such certificate or affidavit shall also constitute sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee for the appropriate series of Securities deems reasonably sufficient.
(d) The principal amount and serial numbers of Registered Securities held by any Person, and the date of holding the same, shall be proved by the Security Register.
(e) The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may be proved by the production of such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary, wherever situated, if such certificate shall be deemed by the Trustee for such Securities to be satisfactory, showing that at the date therein mentioned such Person had on deposit with such depositary, or exhibited to it, the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by such Trustee to be satisfactory. The Trustee for such Securities and the Company may assume that such ownership of any Bearer Security continues until (1) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, (2) such Bearer Security is produced to such Trustee by some other Person, (3) such Bearer Security is surrendered in exchange for a Registered Security, or (4) such Bearer Security is no longer Outstanding. The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may also be proved in any other manner which the Company and the Trustee for such Securities deem sufficient.
(f) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee for such Securities, the Security Registrar, any Paying Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
(g) For purposes of this Indenture, any action by the Holders which may be taken in writing may be taken by electronic means or as otherwise reasonably acceptable to the Trustee for the appropriate series of Securities.
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Section 105. Notices, Etc., to Trustee and the Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other documents provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee for a series of Securities by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with such Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration, Re: Community Health Systems, Inc., or if sent by facsimile transmission, to a facsimile number provided by the Trustee, with a copy mailed, first class postage prepaid to the Trustee addressed to it as provided above, or
(2) the Company or any of the Guarantors (if any) by such Trustee or by any Holder shall be sufficient for every purpose hereunder (except as provided in paragraph (3) of Section 501) if furnished in writing and mailed, first class postage prepaid, addressed in the case of the Company to it, to the attention of the General Counsel, at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to such Trustee by the Company, or if sent by facsimile transmission, to a facsimile number provided to the Trustee by the Company, with a copy mailed, first class postage prepaid, to the Company, and the Guarantors (if any), as the case may be, addressed to it or them as provided above.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, (1) such notice shall be sufficiently given (unless otherwise herein expressly provided) to Holders of Registered Securities if in writing and mailed, first class postage prepaid, to each Holder affected by such event, at his or her address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice or as otherwise permitted by the Trustee; and (2) such notice shall be sufficiently given (unless otherwise herein expressly provided) to Holders of Bearer Securities if published in (a) an Authorized Newspaper on a Business Day or (b) an electronic medium easily accessible by the Holders as may be specified by the Company to such Holders, such publication to be not earlier than the earliest date, and not later than the latest date, prescribed herein for the giving of such notice. Any such notice by publication shall be deemed to have been given on the date of such publication or, if published more than once, on the date of the first publication.
In any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Registered Security shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein. Any notice mailed in the manner prescribed by this Indenture shall be conclusively deemed to have been given whether or not received by any particular Holder. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders of Registered Securities by mail, then such notification as shall be made with the reasonable approval of the Trustee for such Securities shall constitute a sufficient notification for every purpose hereunder.
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In case by reason of the suspension of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be made with the reasonable approval of the Trustee for such Securities shall constitute sufficient notice to such Holders for every purpose hereunder. Neither the failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any notice to Holders of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee for such Securities, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture Act through the operation of Section 318(c) thereof, such imposed duties shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the provision shall be deemed to apply to this Indenture as so modified or excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities or coupons shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities or in any coupons appertaining thereto, expressed or implied, shall give to any Person, other than the parties hereto, any Paying Agent, any Security Registrar, an Authenticating Agent and their successors hereunder and the Holders of Securities or coupons, any benefit or any legal or equitable right, remedy or claim under this Indenture.
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Section 112. Governing Law.
This Indenture and the Securities shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 113. Non-Business Day.
Unless otherwise stated with respect to Securities of any series, in any case where any Interest Payment Date, Redemption Date or Stated Maturity of a Security of any particular series shall not be a Business Day at any Place of Payment with respect to Securities of that series, then (notwithstanding any other provision of this Indenture or of the Securities or coupons) payment of principal of (and premium, if any) and interest, if any, with respect to such Security need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
Section 114. Immunity of Incorporators, Stockholders, Directors and Officers.
No recourse shall be had for the payment of the principal of (and premium, if any), or the interest, if any, on any Security or coupon of any series, or for any claim based thereon, or upon any obligation, covenant or agreement of this Indenture, against any incorporator, stockholder, director, officer or employee, as such, past, present or future, of the Company or of any successor of the Company, either directly or indirectly through the Company or any successor of the Company or any Guarantor (if any) or any successor of any Guarantor (if any), whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment of penalty or otherwise; it being expressly agreed and understood that this Indenture and all the Securities and coupons of each series and any related Note Guarantees are solely corporate obligations, and that no personal liability whatever shall attach to, or is incurred by, any incorporator, stockholder, director, officer or employee, past, present or future, of the Company or any successor of the Company or any Guarantor (if any) of any successor of any Guarantor (if any), either directly or indirectly through the Company or any successor of the Company or any Guarantor (if any) or any successor of any Guarantor (if any), because of the incurring of the indebtedness hereby authorized or under or by reason of any of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or coupons of any series or any Note Guarantees related thereto, or to be implied herefrom or therefrom; and that all such personal liability is hereby expressly released and waived as a condition of, and as part of the consideration for, the execution of this Indenture and the issuance of the Securities and coupons of each series and the Note Guarantees related thereto.
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Section 115. Certain Matters Relating to Currencies.
Subject to Section 311, each reference to any currency or currency unit in any Security, or in the Board Resolution or supplemental indenture relating thereto, shall mean only the referenced currency or currency unit and no other currency or currency unit.
The Trustee shall segregate moneys, funds and accounts held by the Trustee in one currency or currency unit from any moneys, funds or accounts held in any other currencies or currency units, notwithstanding any provision herein which would otherwise permit the Trustee to commingle such amounts.
Whenever any action or Act is to be taken hereunder by the Holders of Securities denominated in a Foreign Currency or currency unit, then for purposes of determining the principal amount of Securities held by such Holders, the aggregate principal amount of the Securities denominated in a Foreign Currency or currency unit shall be deemed to be that amount of Dollars that could be obtained for such principal amount on the basis of a spot rate of exchange specified to the Trustee for such series in an Officers’ Certificate for such Foreign Currency or currency unit into Dollars as of the date the taking of such action or Act by the Holders of the requisite percentage in principal amount of the Securities is evidenced to such Trustee.
Section 116. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, and any published notice may also be in an official language of the country of publication.
ARTICLE 2
Security Forms
Section 201. Forms of Securities.
The Registered Securities, if any, of each series and the Bearer Securities, if any, of each series and related coupons shall be substantially in the form (including global form) of Exhibit A to this Indenture or in such other form as shall be established by or pursuant to a Board Resolution of the Company, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or any indenture supplemental hereto and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as the Company may reasonably deem appropriate and as may be required to comply with any law, with any rule or regulation made pursuant thereto, with any rules of any securities exchange, automated quotation system or clearing agency or to conform to usage, as may, consistently herewith, be determined by the officers executing such Securities or coupons, as evidenced by their execution of such Securities or coupons. If temporary Securities of any series are issued in global form as permitted by Section 304, the form thereof shall be established as provided in the preceding sentence.
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Unless otherwise specified as contemplated by Section 301, Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed, lithographed or engraved or produced by any combination of these methods on a steel engraved border or steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities or coupons, as evidenced by their execution thereof.
Section 202. Form of Trustee’s Certificate of Authentication.
Subject to Section 614, the Certificate of Authentication on all Securities shall be in substantially the following form:
This is one of the Securities of the series designated therein described in the within-mentioned Indenture.
| REGIONS BANK, as Trustee | ||
| By: | ||
| Authorized Signatory | ||
Section 203. Securities in Global Form.
If any Security of a series is issuable in global form, such Security may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be increased or reduced to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee and in such manner as shall be specified in such Security. Any instructions by the Company with respect to a Security in global form, after its initial issuance, shall be in writing but need not comply with Section 102.
Global Securities may be issued in either registered or bearer form and in either temporary or permanent form.
Any Security issued in global form shall bear legends as set forth in Exhibit A to this Indenture.
Section 204. CUSIP Numbers.
The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use) or other identifying numbers (“Identifying Numbers”) and, if so, the Trustee shall use such Identifying Numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such Identifying Numbers either as printed on the Securities or as contained in any notice of a redemption and
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that reliance may be placed only on the other identifying numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the Identifying Numbers.
ARTICLE 3
The Securities
Section 301. Title; Payment and Terms.
The aggregate principal amount of Securities which may be authenticated and delivered and Outstanding under this Indenture is unlimited. The Securities may be issued up to the aggregate principal amount of Securities from time to time authorized by or pursuant to Board Resolutions of the Company.
The Securities may be issued in one or more series, each of which shall be issued pursuant to Board Resolutions of the Company. There shall be established in one or more Board Resolutions or pursuant to one or more Board Resolutions of the Company and, subject to Section 303, set forth in, or determined in the manner provided in, an Officer’s Certificate of the Company, or established in one or more supplemental indentures hereto, prior to the issuance of Securities of any series all or any of the following, as applicable (each of which, if so provided, may be determined from time to time by the Company with respect to unissued Securities of that series and set forth in the Securities of that series when issued from time to time):
(1) the title of the Securities of that series (which shall distinguish the Securities of that series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of that series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series pursuant to Section 304, 305, 306, 906 or 1107) and whether that series may be reopened for additional Securities of that series; in the event that such series of Securities may be reopened from time to time for issuance of additional Securities of such series, the terms thereof shall indicate whether any such additional Securities shall have the same terms as the prior Securities of such series or whether the Company may establish additional or different terms with respect to such additional Securities;
(3) whether Securities of that series are to be issuable as Registered Securities, Bearer Securities or both and any restrictions on the exchange of one form of Securities for another and on the offer, sale and delivery of the Securities in either form;
(4) the date or dates (or manner of determining the same) on which the principal of the Securities of that series is payable (which, if so provided in such Board Resolutions, may be determined by the Company from time to time and set forth in the Securities of the series issued from time to time);
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(5) the rate or rates (or the manner of calculation thereof) at which the Securities of that series shall bear interest (if any), the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable (or manner of determining the same) and the Regular Record Date for the interest payable on any Registered Securities on any Interest Payment Date and the extent to which, or the manner in which, any interest payable on a temporary Global Security on an Interest Payment Date will be paid if other than in the manner provided in Section 307;
(6) the place or places where, subject to the provisions of Section 1002, the principal of (and premium, if any) and interest, if any, on Securities of that series shall be payable, any Registered Securities of that series may be surrendered for registration of transfer, any Securities of that series may be surrendered for exchange, and notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served;
(7) the period or periods within which (or manner of determining the same), the price or prices at which (or manner of determining the same), the currency or currency unit in which, and the terms and conditions upon which Securities of that series may be redeemed, in whole or in part, at the option of the Company, and any remarketing arrangements with respect to the Securities of that series;
(8) the obligation, if any, of the Company to redeem, repay or purchase Securities of that series pursuant to any sinking fund or analogous provisions, upon a change of control or at the option of a Holder thereof, and the period or periods within which (or manner of determining the same), the price or prices at which (or manner of determining the same), the currency or currency unit in which, and the terms and conditions upon which, Securities of that series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) if the currency in which the Securities of that series shall be issuable is Dollars, the denominations in which any Registered Securities of that series shall be issuable, if other than denominations of $1,000 and any integral multiple thereof, and the denominations in which any Bearer Securities of that series shall be issuable, if other than the denomination of $5,000;
(10) if other than the principal amount thereof, the portion of the principal amount of Securities of that series which shall be payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502;
(11) if a Person other than Regions Bank is to act as Trustee for the Securities of that series, the name and location of the Corporate Trust Office of such Trustee;
(12) if other than Dollars, the currency or currency unit in which payment of the principal of (and premium, if any) or interest, if any, on the Securities of that series shall be made or in which the Securities of that series shall be denominated and the particular provisions applicable thereto in accordance with, in addition to or in lieu of the provisions of Section 311;
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(13) the inapplicability of any Event of Default or covenant set forth in Article 10 hereof to the Securities of that series, or the applicability of any other Events of Defaults or covenants in addition to the Events of Default or covenants set forth herein to Securities of that series;
(14) if the principal of (and premium, if any) and interest, if any, on the Securities of that series are to be payable, at the election of the Company or a Holder thereof, in a currency or currency unit other than that in which such Securities are denominated or stated to be payable, in accordance with provisions in addition to or in lieu of, or in accordance with the provisions of, Section 311, the period or periods within which (including the Election Date), and the terms and conditions upon which, such election may be made, and the time and manner of determining the exchange rate between the currency or currency unit in which such Securities are denominated or stated to be payable and the currency or currency unit in which such Securities are to be so payable;
(15) the designation of the original Currency Determination Agent, if any;
(16) if the Securities of such series are issuable as Indexed Securities, the manner in which the amount of payments of principal of (and premium, if any) and interest, if any, on that series shall be determined;
(17) if the Securities of that series do not bear interest, the applicable dates for purposes of Section 701;
(18) if other than as set forth in Article Four, provisions for the satisfaction and discharge of this Indenture with respect to the Securities of that series;
(19) the date as of which any Bearer Securities of that series and any Global Security representing Outstanding Securities of that series shall be dated if other than the date of original issuance of the first Security of that series to be issued;
(20) whether the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities and, in such case, the Depositary and Global Exchange Agent, if any, for such Global Security or Securities, whether such global form shall be permanent or temporary and, if applicable, the Exchange Date;
(21) if Securities of the series are to be issuable initially in the form of a temporary Global Security, the circumstances under which the temporary Global Security can be exchanged for definitive Securities and whether the definitive Securities will be Registered Securities and/or Bearer Securities and will be in global form and whether interest in respect of any portion of such Global Security payable in respect of an Interest Payment Date prior to the Exchange Date shall be paid to any clearing organization with respect to a portion of such Global Security held for its account and, in such event, the terms and conditions (including any certification requirements) upon which any such interest payment received by a clearing organization will be credited to the Persons entitled to interest payable on such Interest Payment Date if other than as provided in this Article Three;
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(22) whether payment of any amount due under such Securities will be entitled to the benefits of any Note Guarantee of any Guarantors, pursuant to the Indenture;
(23) the terms, if any, upon which such Securities of any series may be converted or exchanged into or for common stock, preferred stock or other securities or property of the Company;
(24) the forms of the Securities of that series; and
(25) any other terms of that series (which terms shall not be inconsistent with the requirements of the Trust Indenture Act).
All Securities of any particular series and the coupons appertaining to any Bearer Securities of such series shall be substantially identical except as to denomination, rate of interest, Stated Maturity and the date from which interest, if any, shall accrue, and except as may otherwise be provided in or pursuant to such Board Resolutions of the Company and set forth in such Officer’s Certificate relating thereto or provided in or pursuant to any supplemental indenture hereto. The terms of such Securities, as set forth above, may be determined by the Company from time to time if so provided in or established pursuant to the authority granted in its Board Resolutions. All Securities of any one series need not be issued at the same time, and unless otherwise provided, a series may be reopened for issuance of additional Securities of such series.
Prior to the delivery of a Security of any series in any such form to the Trustee for the Securities of such series for authentication, the Company shall deliver to such Trustee the following:
(1) The Board Resolutions of the Company by or pursuant to which such form of Security have been approved and, if applicable, the supplemental indenture by or pursuant to which such form of Security has been approved;
(2) An Officers’ Certificate of the Company dated the date such Certificate is delivered to such Trustee satisfying the requirements of Sections 102 and 103, and stating that all conditions precedent provided for in this Indenture relating to the authentication and delivery of Securities in such forms have been complied with; and
(3) An Opinion of Counsel satisfying the requirements of Sections 102 and 103 substantially to the effect that Securities in such forms, together with any coupons appertaining thereto, when (a) completed by appropriate insertions and executed and delivered by the Company to such Trustee for authentication in accordance with this Indenture, (b) authenticated and delivered by such Trustee in accordance with this Indenture, and (c) issued by the Company in the manner and subject to the conditions specified in such Opinion of Counsel, will constitute the legal, valid and binding obligations of the Company, subject to the effects of applicable bankruptcy, reorganization, fraudulent conveyance, moratorium, insolvency and other similar laws generally affecting creditors’ rights, to general equitable principles, to an implied covenant of good faith and fair dealing and to such other qualifications as such counsel shall conclude do not materially affect the rights of Holders of such Securities.
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Section 302. Denominations and Currencies.
Unless otherwise provided with respect to any series of Securities as contemplated by Section 301, any Registered Securities of a series other than Registered Securities issued in global form (which may be of any denomination) shall be issuable in denominations of $1,000 and any integral multiple thereof, and any Bearer Securities of a series other than Bearer Securities issued in global for (which may be of any denomination) shall be issuable in the denomination of $5,000, or the equivalent amounts thereof in the case of Registered Securities and Bearer Securities denominated in a Foreign Currency or currency unit.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities and any related coupons shall be executed on behalf of the Company by its Chairman of the Board, a Vice Chairman of the Board, or its President, Chief Executive Officer or one of its Vice Presidents. The Securities shall be so executed under the corporate seal of the Company reproduced thereon and attested to by its Secretary or any one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile.
Securities and coupons bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series together with any coupons appertaining thereto, executed by the Company (and, if applicable, having endorsed thereon the Note Guarantees executed as provided in Section 1403 hereof), to the Trustee for the Securities of such series for authentication, together with a Company Order for the authentication and delivery of such Securities, and such Trustee, in accordance with the Company Order, shall authenticate and deliver such Securities; provided, however, that, during the “restricted period” (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations), no Bearer Security shall be mailed or otherwise delivered to any location in the United States; and provided, further, that a Bearer Security may be delivered outside the United States in connection with its original issuance only if the Person entitled to receive such Bearer Security shall have furnished to the Trustee for the Securities of such series a certificate substantially in the form set forth in Exhibit B to this Indenture. If any Security shall be represented by a permanent Global Security, then, for purposes of this Section and Section 304, the notation of a beneficial owner’s interest therein upon original issuance of such Security or upon exchange of a portion of a temporary Global Security shall be deemed to be delivery in connection with the original issuance of such beneficial owner’s interest in such permanent Global Security. Except as permitted by Section 306 or 307, the Trustee for the Securities of a series shall not authenticate and deliver any Bearer Security unless all appurtenant coupons for interest then matured other than matured coupons in default have been detached and cancelled. If all the Securities of any one series are not to be issued at one time and if a Board Resolution relating to such Securities shall so permit, such Company Order may set forth procedures acceptable to the Trustee for the issuance of such Securities, including, without limitation, procedures with respect to interest rate, Stated Maturity, date of issuance and date from which interest, if any, shall accrue.
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Notwithstanding any contrary provision herein, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Board Resolution, Officers’ Certificate and Opinion of Counsel otherwise required pursuant to Sections 102 and 301 at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Registered Security shall be dated the date of its authentication, and, unless otherwise specified as contemplated by Section 301, each Bearer Security shall be dated as of the date of original issuance of the first Security of such series to be issued.
No Security or coupon appertaining thereto or Note Guarantee endorsed thereon shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for herein manually executed by the Trustee for such Security or on its behalf pursuant to Section 614, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder.
In case any Securities shall have been authenticated, but not delivered, by the Trustee or the Authenticating Agent for such series then in office, any successor by merger, conversion or consolidation to such Trustee, or any successor Authenticating Agent, as the case may be, may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee or successor Authenticating Agent had itself authenticated such Securities.
Each Depositary designated pursuant to Section 301 for a Global Security in registered form must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders.
Section 304. Temporary Securities and Exchange of Securities.
Pending the preparation of definitive Securities of any particular series, the Company may execute, and upon Company Order the Trustee for the Securities of such series shall authenticate and deliver, in the manner specified in Section 303, temporary Securities which are printed, lithographed, typewritten, photocopied or otherwise produced, in any denomination, with like terms and conditions as the definitive Securities of like series in lieu of which they are issued in registered form or, if authorized, in bearer form with one or more coupons or without coupons, and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities. Any such temporary Securities may be in global form, representing such of the Outstanding Securities of such series as shall be specified therein.
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Except in the case of temporary Securities in global form (which shall be exchanged only in accordance with the provisions of the following paragraphs or as otherwise provided in or pursuant to a Board Resolution or a Supplemental Indenture), if temporary Securities of any particular series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of such definitive Securities, the temporary Securities of such series shall be exchangeable for such definitive Securities of a like Stated Maturity and with like terms and provisions upon surrender of the temporary Securities of such series, together with all unmatured coupons and matured coupons in default, if any, at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any particular series, the Company shall execute and (in accordance with a Company Order delivered at or prior to the authentication of the first definitive Security of such series) the Trustee for the Securities of such series or the Global Exchange Agent shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of authorized denominations of the same series and of a like Stated Maturity and with like terms and provisions; provided, however, unless otherwise specified pursuant to Section 301, no definitive Bearer Security shall be delivered in exchange for a temporary Registered Security; and provided, further, that a definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth in Section 303. Until exchanged as hereinabove provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and with like terms and conditions, except as to payment of interest, if any, authenticated and delivered hereunder.
Any temporary Global Security and any permanent Global Security shall, unless otherwise provided therein, be delivered to a Depositary designated pursuant to Section 301.
Without unnecessary delay but in any event not later than the date specified in or determined pursuant to the terms of any such temporary Global Security (the “Exchange Date”), the Securities represented by any temporary Global Security of a series of Securities issuable in bearer form may be exchanged for definitive Securities (subject to the second succeeding paragraph) or Securities to be represented thereafter by one or more permanent Global Securities, without interest coupons. On or after the Exchange Date such temporary Global Security shall be surrendered by the Depositary to the Trustee for such Security, as the Company’s agent for such purpose, or the agent appointed by the Company pursuant to Section 301 to effect the exchange of the temporary Global Security for definitive Securities (the “Global Exchange Agent”), and following such surrender, such Trustee or the Global Exchange Agent (as authorized by the Trustee as an Authenticating Agent pursuant to Section 614) shall (1) endorse the temporary Global Security to reflect the reduction of its principal amount by an equal aggregate principal amount of such Security, (2) endorse the applicable permanent Global Security, if any, to reflect the initial amount, or an increase in the amount of Securities represented thereby, (3) manually authenticate such definitive Securities or such permanent Global Security, as the case may be, (4) subject to Section 303, deliver such definitive Securities to the Holder thereof or, as the case may be, deliver such permanent Global Security to the Depositary to be held outside the United States for the accounts of Euroclear and Clearstream Banking, for credit to the respective accounts at Euroclear and Clearstream Banking, designated by or on behalf of the beneficial owners of such Securities (or to such other accounts as they may direct) and (5) redeliver such temporary Global Security to the Depositary, unless such temporary Global Security shall have
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been cancelled in accordance with Section 309 hereof; provided, however, that, unless otherwise specified in such temporary Global Security, upon such presentation by the Depositary, such temporary Global Security shall be accompanied by a certificate dated the Exchange Date or a subsequent date and signed by Euroclear as to the portion of such temporary Global Security held for its account then to be exchanged for definitive Securities or one or more permanent Global Securities, as the case may be, and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream Banking, as to the portion of such temporary Global Security held for its account then to be exchanged for definitive Securities or one or more permanent Global Securities, as the case may be, each substantially in the form set forth in Exhibit C to this Indenture. Each certificate substantially in the form of Exhibit C hereto of Euroclear or Clearstream Banking, as the case may be, shall be based on certificates of the account holders listed in the records of Euroclear or Clearstream Banking, as the case may be, as being entitled to all or any portion of the applicable temporary Global Security. An account holder of Euroclear or Clearstream Banking, as the case may be, desiring to effect the exchange of interest in a temporary Global Security for an interest in definitive Securities or one or more permanent Global Securities shall instruct Euroclear or Clearstream Banking, as the case may be, to request such exchange on its behalf and shall deliver to Euroclear or Clearstream Banking, as the case may be, a certificate substantially in the form of Exhibit B hereto and dated no earlier than 15 days prior to the Exchange Date. Until so exchanged, temporary Global Securities shall in all respects be entitled to the same benefits under this Indenture as definitive Securities and permanent Global Securities of the same series authenticated and delivered hereunder, except as provided in the fourth succeeding paragraph.
The delivery to the Trustee for the Securities of the appropriate series or the Global Exchange Agent by Euroclear or Clearstream Banking of any certificate substantially in the form of Exhibit C hereto may be relied upon by the Company and such Trustee or the Global Exchange Agent as conclusive evidence that a corresponding certificate or certificates has or have been delivered to Euroclear or to Clearstream Banking, as the case may be, pursuant to the terms of this Indenture.
On or prior to the Exchange Date, the Company shall deliver to the Trustee for the Securities of the appropriate series or the Global Exchange Agent definitive Securities or one or more permanent Global Securities in aggregate principal amount equal to the principal amount of such temporary Global Security, executed by the Company in the case of the Securities. At any time, on or after the Exchange Date, upon 30 days’ notice to the Trustee for the Securities of the appropriate series or the Global Exchange Agent by Euroclear or Clearstream Banking, as the case may be, acting at the request of or on behalf of the beneficial owner, a Security represented by a temporary Global Security or a permanent Global Security, as the case may be, may be exchanged, in whole or from time to time in part, for definitive Securities without charge and such Trustee or the Global Exchange Agent shall authenticate and deliver, in exchange for each portion of such temporary Global Security or such permanent Global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and with like terms and provisions as the portion of such temporary Global Security or such permanent Global Security to be exchanged, which, unless the Securities of the series are not issuable both as Bearer Securities and as Registered Securities, as contemplated by Section 301, shall be in the form of Bearer Securities or Registered Securities, or any combination thereof, as shall be specified by the beneficial owner thereof; provided, however,
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that definitive Bearer Securities shall be delivered in exchange for a portion of the temporary Global Security or the permanent Global Security only in compliance with the requirements of the second preceding paragraph. On or prior to the thirtieth day following receipt by the Trustee for the Securities of the appropriate series or the Global Exchange Agent of such notice with respect to a Security, or, if such day is not a Business Day, the next succeeding Business Day, the temporary Global Security or the permanent Global Security, as the case may be, shall be surrendered by the Depositary to such Trustee, as the Company’s agent for such purpose, or the Global Exchange Agent to be exchanged in whole, or from time to time in part, for definitive Securities without charge following such surrender, upon the request of Euroclear or Clearstream Banking, as the case may be, and such Trustee or the Global Exchange Agent shall (1) endorse the applicable temporary Global Security or the permanent Global Security to reflect the reduction of its principal amount by the aggregate principal amount of such Security, (2) in accordance with procedures acceptable to the Trustee cause the terms of such Security and coupons, if any, to be entered on a definitive Security, (3) manually authenticate such definitive Security and (4) if a Bearer Security is to be delivered, deliver such definitive Security outside the United States to Euroclear or Clearstream Banking, as the case may be, for or on behalf of the beneficial owner thereof, in exchange for a portion of such permanent Global Security.
Unless otherwise specified in such temporary Global Security or permanent Global Security, any such exchange shall be made free of charge to the beneficial owners of such temporary Global Security or permanent Global Security, except that a Person receiving definitive Securities must bear the cost of any taxes, insurance, postage, transportation and the like in the event that such Person does not take delivery of such definitive Securities in person at the offices of Euroclear or Clearstream Banking. Definitive Securities in bearer form to be delivered in exchange for any portion of a temporary Global Security or a permanent Global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, any temporary Global Security or permanent Global Security shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and with like terms and conditions, except as to payment of interest, if any, authenticated and delivered hereunder. Unless otherwise specified as contemplated by Section 301, interest payable on such temporary Global Security on an Interest Payment Date for Securities of such series shall be payable to Euroclear and Clearstream Banking on such Interest Payment Date upon delivery by Euroclear and Clearstream Banking to the Trustee for the Securities of the appropriate series or the Global Exchange Agent in the case of payment of interest on a temporary Global Security with respect to an Interest Payment Date occurring prior to the applicable Exchange Date of a certificate or certificates substantially in the form set forth in Exhibit D to this Indenture, for credit without further interest on or after such Interest Payment Date to the respective accounts of the Persons who are the beneficial owners of such Global Security on such Interest Payment Date and who have, in the case of payment of interest on a temporary Global Security with respect to an Interest Payment Date occurring prior to the applicable Exchange Date, each delivered to Euroclear or Clearstream Banking, as the case may be, a certificate substantially in the form set forth in Exhibit E to this Indenture.
Any definitive Bearer Security authenticated and delivered by the Trustee for the Securities of the appropriate series or the Global Exchange Agent in exchange for a portion of a temporary Global Security or a permanent Global Security shall not bear a coupon for any
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interest which shall theretofore have been duly paid by such Trustee to Euroclear or Clearstream Banking or by the Company to such Trustee in accordance with the provisions of this Section 304.
With respect to Exhibits A, B, C D, E, and F to this Indenture, the Company may, in its discretion and if required or desirable under applicable law, substitute one or more other forms of such exhibits for such exhibits, eliminate the requirement that any or all certificates be provided, or change the time that any certificate may be required, provided that such substitute form or forms or notice of elimination or change of such certification requirement have theretofore been delivered to the Trustee with a Company Request and such form or forms, elimination or change is reasonably acceptable to the Trustee.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee for the Securities of each series a register (the register maintained in such office being herein sometimes referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and of transfers of Registered Securities. The Trustee for the Securities of each series is hereby initially appointed “Security Registrar” for the purpose of registering Registered Securities and transfers of Registered Securities of such series as herein provided.
Upon surrender for registration of transfer of any Registered Security of any particular series at the office or agency of the Company in a Place of Payment for that series, the Company shall execute, and the Trustee for the Securities of each series shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of any authorized denominations, and of a like Stated Maturity and of a like series and aggregate principal amount and with like terms and conditions.
Except as set forth below, at the option of the Holder, Registered Securities of any particular series may be exchanged for other Registered Securities of any authorized denominations, and of a like Stated Maturity and of a like series and aggregate principal amount and with like terms and conditions upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee for such Securities shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive. Except as otherwise specified pursuant to Section 301, Registered Securities may not be exchanged for Bearer Securities.
Notwithstanding any other provision of this Section or Section 304, unless and until it is exchanged in whole or in part for Registered Securities in definitive form, a Global Security representing all or a portion of the Registered Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
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If (but not only if) permitted by the applicable Board Resolution and (subject to Section 308) set forth in the applicable Officer’s Certificate, at the option of the Holder, Bearer Securities of any series may be exchanged for Registered Securities of the same series of any authorized denominations and of a like aggregate principal amount and with like terms and provisions upon surrender of the Bearer Securities to be exchanged at any office or agency of the Company in a Place of Payment for that series, with all unmatured coupons and all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default, such exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Company (or to the Trustee for the Security in case of matured coupons in default) in an amount equal to the face amount of such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and such Trustee if there is furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 1002, interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency of the Company in a Place of Payment for that series located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in exchange for a Registered Security of the same series and with like terms and conditions after the close of business at such office or agency on or after (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date for payment, as the case may be (or, if such coupon is so surrendered with such Bearer Security, such coupon shall be returned to the person so surrendering the Bearer Security), and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee for such Securities shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for Securities of a series in registered form notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series or if at any time the Depositary for the Securities of such series shall no longer be eligible under Section 303, the Company shall appoint a successor Depositary with respect to the Securities for such series. If (i) a successor Depositary for the Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, (ii) the Company delivers to the Trustee for Securities of such series in registered form a Company Order stating that the Securities of such series shall be exchangeable, or (iii) an Event of Default under Section 501 hereof has occurred and is continuing with respect to the Securities of such series, the Company’s election pursuant to Section 301 shall no longer be
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effective with respect to the Securities for such series and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver Securities of such series in definitive form in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the Registered Securities of any series issued in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Registered Securities of such series, will authenticate and deliver, Registered Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities.
If specified in a Board Resolution adopted by the Company pursuant to Section 301 with respect to a series of Securities in registered form, the Depositary for such series of Securities may surrender a Global Security for such series of Securities in exchange in whole or in part for Securities of such series of like tenor and terms and in definitive form on such terms as are acceptable to the Company and such Depositary. Thereupon the Company shall execute, and, upon receipt of a Company Order, the Trustee shall authenticate and deliver, without service charge, (i) to each Person specified by such Depositary a new Security or Securities of the same series, of like tenor and terms and of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Global Security; and (ii) to such Depositary a new Global Security of like tenor and terms and in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Securities delivered to Holders thereof.
Upon the exchange of a Global Security for Securities in definitive form representing the aggregate principal amount of such Global Security, such Global Security shall be cancelled by the Trustee. Registered Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee in writing. The Trustee shall deliver such Registered Securities to the persons in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or exchange shall (if so required by the Company or the Trustee for such Security) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar for such series duly executed, by the Holder thereof or his attorney duly authorized in writing.
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No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of that series selected for redemption under Section 1104 and ending at the close of business on (A) if Securities of the series are issuable only as Registered Securities, the day of the mailing of the relevant notice of redemption and (B) if Securities of the series are issuable as Bearer Securities, the day of the first publication of the relevant notice of redemption or, if Securities of the series are also issuable as Registered Securities and there is no publication, the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Registered Security so selected for redemption as a whole or in part, except the unredeemed portion of any Security being redeemed in part, or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of that series and like tenor; provided, however, that such Registered Security shall be simultaneously surrendered for redemption.
Furthermore, notwithstanding any other provision of this Section 305, the Company will not be required to exchange any Securities if, as a result of the exchange, the Company would suffer adverse consequences under any United States law or regulation.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If (i) any mutilated Security or a Security with a mutilated coupon appertaining thereto is surrendered to the Trustee for such Security or the Company and the Trustee for a Security receive evidence to their satisfaction of the destruction, loss or theft of any Security or coupon and (ii) there is delivered to the Company and such Trustee such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or such Trustee that such Security or coupon has been acquired by a bona fide or protected purchaser, the Company shall execute and upon its request such Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security or in exchange for such mutilated Security, or in exchange for the Security to which a mutilated, destroyed, lost or stolen coupon appertains (with all appurtenant coupons not mutilated, destroyed, lost or stolen) a new Security of the same series and in a like principal amount and of a like Stated Maturity and with like terms and conditions, and bearing a number not contemporaneously outstanding with coupons corresponding to the coupons, if any, appertaining to such mutilated, destroyed, lost or stolen Security or to the Security to which such mutilated, destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security or coupon (without surrender thereof except in the case of a mutilated Security or coupon) if the applicant for such payment shall furnish to the Company and the Trustee for such Security such security or indemnity as may be required by them to save each
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of them harmless, and in case of destruction, loss or theft, evidence satisfactory to the Company and such Trustee and any agent of any of them of the destruction, loss or theft of such Security and the ownership thereof; provided, however, that the principal of (and premium, if any) and interest, if any, on Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an office or agency located outside the United States and, unless otherwise specified as contemplated by Section 301, any interest on Bearer Securities shall be payable only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including all fees and expenses of the Trustee for such Security) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security or in exchange for any mutilated Security, or in exchange for a Security to which a mutilated, destroyed, lost or stolen coupon appertains shall constitute an original additional contractual obligation of the Company whether or not the destroyed, lost or stolen Security and its coupons, if any, or the destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and each such new Security shall be at any time enforceable by anyone, and each such new Security shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall, if so provided in such Security, be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest payment.
Unless otherwise provided with respect to the Securities of any series, payment of interest may be made at the Corporate Trust Office or, at the option of the Company (i) in the case of Registered Securities, may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register, or (ii) in the case of Bearer Securities, upon presentation and surrender of the appropriate coupon appertaining thereto or by transfer to an account maintained by the payee with a bank located outside the United States. Notwithstanding the foregoing, a Holder of $5,000,000 or more in aggregate principal amount of Securities of any series in definitive form (other than Bearer Securities), whether having identical or different terms and provisions, having the same Interest Payment Dates will, at the option of the Company, be entitled to receive interest payments, other than at Maturity, by wire transfer of immediately available funds if appropriate wire transfer instructions have been received in writing by the Trustee for the Securities of such series at least 15 days prior to the applicable Interest Payment Date. Any wire instructions received by the Trustee for the Securities of such series shall remain in effect until revoked by the Holder.
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Unless otherwise provided or contemplated by Section 301, every permanent Global Security will provide that interest, if any, payable on any Interest Payment Date will be paid to each of Euroclear and Clearstream Banking with respect to that portion of such permanent Global Security held for its account by the Depositary. Each of Euroclear and Clearstream Banking will in such circumstances credit the interest received by it in respect of such permanent Global Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any particular series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of that series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee for the Registered Securities of such series in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of that series and the date of the proposed payment, and at the same time the Company shall deposit with such Trustee an amount of money in the currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d)), equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to such Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon such Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall not be more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by such Trustee of the notice of the proposed payment. Such Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Registered Securities of that series at his address as it appears in the Security Register not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names the Registered Securities of that series (or their respective Predecessor Securities) are registered on such Special Record Date and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on Registered Securities of any particular series in any other lawful manner not inconsistent with the
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requirements of any securities exchange on which the Registered Securities may be listed, and upon such notice as may be required by such exchange, if, after notice is given by the Company to the Trustee for the Securities of such series of the proposed manner of payment pursuant to this clause, such manner of payment shall be deemed practicable by such Trustee.
Subject to the foregoing provisions of this Section and Section 305, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee for such Security and any agent of the Company or such Trustee may treat the Person in whose name any such Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 307) interest, if any, on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and none of the Company, such Trustee or any agent of the Company or such Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall pass by delivery. The Company, the Trustee for such Security and any agent of the Company or such Trustee may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner of such Bearer Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Security or coupon be overdue, and none of the Company, such Trustee or any agent of the Company or such Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Section 309. Cancellation.
All Securities and coupons surrendered for payment, redemption, registration of transfer or exchange, or delivered in satisfaction of any sinking fund payment, shall, if surrendered to any Person other than the Trustee for such Securities, be delivered to such Trustee and, in the case of Registered Securities and matured coupons, shall be promptly cancelled by it. All Bearer Securities and unmatured coupons so delivered to the Trustee for such Securities shall be cancelled by such Trustee. The Company may at any time deliver to the Trustee for Securities of a series for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by such Trustee. Notwithstanding any other provision of this Indenture to the contrary, in the case of a series, all the Securities of which are not to be originally issued at one time, a Security of such series shall not be deemed to have been Outstanding at any time
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hereunder if and to the extent that, subsequent to the authentication and delivery thereof, such Security is delivered to the Trustee for such Security for cancellation by the Company or any agent thereof upon the failure of the original purchaser thereof to make payment therefor against delivery thereof, and any Security so delivered to such Trustee shall be promptly cancelled by it. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities and coupons held by the Trustee for such Securities shall be disposed of by such Trustee in accordance with its standard procedures and a certificate of disposition evidencing such disposition of Securities and coupons shall be provided to the Company by such Trustee. In the case of any temporary Global Security, which shall be disposed of if the entire aggregate principal amount of the Securities represented thereby has been exchanged, the certificate of disposition shall state that all certificates required pursuant to Section 304 hereof, substantially in the form of Exhibit C hereto (or in the form of any substitute exhibit as provided in the last paragraph of Section 304), to be given by Euroclear or Clearstream Banking, have been duly presented to the Trustee for such Securities by Euroclear or Clearstream Banking, as the case may be. Permanent Global Securities shall not be disposed of until exchanged in full for definitive Securities or until payment thereon is made in full.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any particular series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 311. Currency and Manner of Payments in Respect of Securities.
Unless otherwise specified in accordance with Section 301 with respect to any series of Securities, the following provisions shall apply:
(a) Except as provided in paragraphs (b) and (d) below, the principal of (and premium, if any) and interest on Securities of any series denominated in a Foreign Currency or currency unit will be payable by the Company in Dollars based on the equivalent of that Foreign Currency or currency unit converted into Dollars in the manner described in paragraph (c) below.
(b) It may be provided pursuant to Section 301 with respect to Registered Securities of any series denominated in a Foreign Currency or currency unit that Holders shall have the option, subject to paragraph (d) below, to receive payments of principal of (and premium, if any) and interest on such Registered Securities in such Foreign Currency or currency unit by delivering to the Trustee (or to any duly appointed Paying Agent) for the Registered Securities of that series a written election, to be in form and substance satisfactory to such Trustee (or to any such Paying Agent), not later than the close of business on the Election Date immediately preceding the applicable payment date. If a Holder so elects to receive such payments in such Foreign Currency or currency unit, such election will remain in effect for such Holder until changed by such Holder by written notice to the Trustee (or to any such Paying Agent) for the Registered Securities of that series; provided, however, that any such change must be made not later than the close of business on the Election Date immediately preceding the next payment date to be effective for the payment to be made on such payment date; and provided, further, that
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no such change or election may be made with respect to payments to be made on any Registered Security of such series with respect to which an Event of Default has occurred, the Company has exercised any defeasance, satisfaction or discharge options pursuant to Article Four or notice of redemption has been given by the Company pursuant to Article Eleven. If any Holder makes any such election, such election will not be effective as to any transferee of such Holder and such transferee shall be paid in Dollars unless such transferee makes an election as specified above; provided, however, that such election, if in effect while funds are on deposit with respect to the Registered Securities of such series as described in Section 404 or Section 405, will be effective as to any transferee of such Holder unless otherwise specified pursuant to Section 301 for such Registered Securities. Any Holder of any such Registered Security who shall not have delivered any such election to the Trustee (or to any duly appointed Paying Agent) for the Registered Securities of such series not later than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date in Dollars.
(c) With respect to any Registered Securities of any series denominated in a Foreign Currency or currency unit and payable in Dollars, the amount of Dollars so payable will be determined by the Currency Determination Agent based on the highest indicative quotation in The City of New York selected by the Currency Determination Agent (after consultation with the Company) at approximately 11:00 A.M., New York City time, on the second Business Day preceding the applicable payment date. Such selection shall be made from among the quotations appearing on the bank composite or multi-contributor pages of the Reuters Monitor Foreign Exchange Service or, if not available, the Telerate Monitor Foreign Exchange Service, for three (or two if three are not available) major banks in New York City. The first three (or two) such banks selected by the Currency Determination Agent which are offering quotes on the Reuters Foreign Exchange Service shall be used. If such quotations are unavailable from either such foreign exchange service, such selection shall be made from the quotations received by the Currency Determination Agent from no more than three nor less than two recognized foreign exchange dealers in The City of New York selected by the Currency Determination Agent and approved by the Company (one of which may be the Currency Determination Agent) for the purchase by the quoting dealer, for settlement on such payment date, of the aggregate amount of the Foreign Currency or currency unit payable on such payment date in respect of all Registered Securities denominated in such Foreign Currency or currency unit and for which the applicable dealer commits to execute a contract. If fewer than two such bid quotations are available at 11:00 a.m., New York City time, on the second Business Day preceding the applicable payment date, such payment will be based on the Market Exchange Rate as of the second Business Day preceding the applicable payment date. If the Market Exchange Rate for such date is not then available, payments shall be made in the Foreign Currency or currency unit. All currency exchange costs associated with any payment in Dollars on any such Registered Securities will be borne by the Holder thereof by deductions from such payment.
(d) If a Conversion Event occurs with respect to a Foreign Currency or currency unit in which Registered Securities of any series are payable, then with respect to each date for the payment of principal of (and premium, if any) and interest on the Registered Securities of that series occurring after the last date on which such Foreign Currency or currency unit was used, the Company may make such payment in Dollars. The Dollar amount to be paid by the Company to the Trustee for the Registered Securities of such series and by such Trustee or any Paying Agent for the Registered Securities of such series to the Holders of such Registered Securities
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with respect to such payment date shall be determined by the Currency Determination Agent on the basis of the Market Exchange Rate as of the second Business Day preceding the applicable payment date or, if such Market Exchange Rate is not then available, on the basis of the most recently available Market Exchange Rate, or as otherwise established pursuant to Section 301 with respect to such Securities. Any payment in respect of such Registered Security made under such circumstances in Dollars will not constitute an Event of Default hereunder.
(e) For purposes of this Indenture the following terms shall have the following meanings:
A “Component Currency” shall mean any currency which is a component currency of any currency unit.
“Election Date” shall mean, for the Registered Securities of any series, the date specified pursuant to Section 301(14).
(f) Notwithstanding any other provisions of this Section 311, the following shall apply: (i) if the official unit of any Component Currency is altered by way of combination or subdivision, the number of units of that currency as a component shall be divided or multiplied in the same proportion, (ii) if two or more Component Currencies are consolidated into a single currency, the amounts of those currencies as components shall be replaced by an amount in such single currency equal to the sum of the amounts of the consolidated Component Currencies expressed in such a single currency, (iii) if any Component Currency is divided into two or more currencies, the amount of that original Component Currency as a component shall be replaced by the amounts of such two or more currencies having an aggregate value on the date of division equal to the amount of the former Component Currency immediately before such division and (iv) in the event of an official redenomination of any currency (including, without limitation, a currency unit), the obligations of the Company to make payments in or with reference to such currency on the Registered Securities of any series shall, in all cases, be deemed immediately following such redenomination to be obligations to make payments in or with reference to that amount of redenominated currency representing the amount of such currency immediately before such redenomination.
(g) All determinations referred to in this Section 311 made by the Currency Determination Agent shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Holders of the applicable Securities. The Currency Determination Agent shall promptly give written notice to the Trustee of any such decision or determination. The Currency Determination Agent shall have no liability for any determinations referred to in this Section 311 made by it.
(h) The Trustee for the Securities of a particular series shall be fully justified and protected in relying and acting upon information received by it from the Company and the Currency Determination Agent with respect to any of the matters addressed in or contemplated by this Section 311 and shall not otherwise have any duty or obligation to determine such information independently.
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Section 312. Appointment and Resignation of Currency Determination Agent.
(a) If and so long as the Securities of any series (i) are denominated in a currency unit or a currency other than Dollars or (ii) may be payable in a currency unit or a currency other than Dollars, or so long as it is required under any other provision of this Indenture, then the Company shall maintain with respect to each such series of Securities, or as so required, a Currency Determination Agent. The Company shall cause the Currency Determination Agent to make the necessary foreign exchange determinations at the time and in the manner specified pursuant to Section 301 for the purpose of determining the applicable rate of exchange and for the purpose of converting the issued currency or currency unit into the applicable payment currency or currency unit for the payment of principal (and premium, if any) and interest, if any, pursuant to Section 311.
(b) No resignation of the Currency Determination Agent and no appointment of a successor Currency Determination Agent pursuant to this Section shall become effective until the acceptance of appointment by the successor Currency Determination Agent as evidenced by a written instrument delivered to the Company and the Trustee of the appropriate series of Securities accepting such appointment executed by the successor Currency Determination Agent.
(c) If the Currency Determination Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Currency Determination Agent for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Currency Determination Agent or Currency Determination Agents with respect to the Securities of that or those series (it being understood that any such successor Currency Determination Agent may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall only be one Currency Determination Agent with respect to the Securities of any particular series).
Section 313. Ranking.
The Securities shall constitute the senior indebtedness of the Company and shall rank pari passu in right of payment among themselves and with all of the other existing and future senior indebtedness of the Company.
ARTICLE 4
Satisfaction and Discharge
Section 401. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by a Board Resolution set forth in an Officers’ Certificate, at any time, with respect to the Securities of any series, elect to have either Section 402 or 403 be applied to all of the Outstanding Securities of that series upon compliance with the conditions set forth below in this Article Four.
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Section 402. Legal Defeasance and Discharge.
Upon the Company’s exercise under Section 401 of the option applicable to this Section 402, the Company shall be deemed to have been discharged from its obligations with respect to all Outstanding Securities of the particular series and any coupons appertaining thereto on the date the conditions set forth below in Section 404 are satisfied (hereinafter, “Legal Defeasance”). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged all the obligations relating to the Outstanding Securities of that series and the Securities of that series, including any coupons appertaining thereto, shall thereafter be deemed to be “Outstanding” only for the purposes of Section 406, Section 408 and the other Sections of this Indenture referred to below in this Section 402, and to have satisfied all of its other obligations under such Securities and any coupons appertaining thereto and this Indenture and cured all then existing Events of Default (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of Outstanding Securities of the particular series and coupons, if any, of such series to receive payments in respect of the principal of (and premium, if any) and interest, if any, on such Securities when such payments are due or on the Redemption Date solely out of the trust created pursuant to this Indenture; (b) the Company’s obligations with respect to such Securities concerning issuing temporary Securities of that series, or, where relevant, registration of such Securities, mutilated, destroyed, lost or stolen Securities of that series and the maintenance of an office or agency for payment and money for Securities payments held in trust; (c) the rights, powers, trusts, duties and immunities of the Trustee for the Securities of that series, and the Company’s obligations in connection therewith; and (d) this Article Four and the obligations set forth in Section 406 hereof.
Subject to compliance with this Article Four, the Company may exercise its option under Section 402 notwithstanding the prior exercise of its option under Section 403 with respect to the Securities of a particular series and any coupons appertaining thereto.
Section 403. Covenant Defeasance.
Upon the Company’s exercise under Section 401 of the option applicable to this Section 403, the Company shall be released from any obligations under the covenants contained in Sections 704 and 801 hereof (and any other covenant in addition to those set forth herein applicable to Securities of any series pursuant to Section 301 hereof specified to be released as provided under this Section 403) with respect to the Outstanding Securities of the particular series, along with any additional covenants or other provisions (including Events of Default) contained in such Security or any Supplemental Indenture in connection therewith, on and after the date the conditions set forth below in Section 404 are satisfied (hereinafter, “Covenant Defeasance”), and the Securities of that series and any coupons appertaining thereto shall thereafter be deemed not “Outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “Outstanding” for all other purposes hereunder (it being understood that such Securities shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the Outstanding Securities of that series and any coupons appertaining thereto, the Company may omit to comply
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with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a default or Event of Default under subsection 501 but, except as specified above, the remainder of this Indenture and the Securities of that series shall be unaffected thereby.
Section 404. Section 404. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section 402 or Section 403 to the Outstanding Securities of a particular series:
(a) the Company must irrevocably deposit, or cause to be irrevocably deposited, with the Trustee for the Securities of that series, in trust, for the benefit of the Holders of the Securities of that series, cash in the currency or currency unit in which the Securities of that series are payable (except as otherwise specified pursuant to Section 301 for the Securities of that series and except as provided in Sections 311(b) and 311(d), in which case the deposit to be made with respect to Securities for which an election has occurred pursuant to Section 311(b), or a Conversion Event has occurred as provided in Section 311(d), shall be made in the currency or currency unit in which the Securities of that series are payable as a result of such election or Conversion Event), Government Obligations or a combination thereof in such amounts as will be sufficient, in the opinion of an internationally recognized firm of independent public accountants, to pay the principal of (and premium, if any) and interest, if any, due on the outstanding Securities of that series and any related coupons at the Stated Maturity, or on the applicable Redemption Date, as the case may be, with respect to the outstanding Securities of that series and any related coupons;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee for the Securities of that series an Opinion of Counsel in the United States reasonably acceptable to such Trustee confirming that, subject to customary assumptions and exclusions, (1) the Company has received from, or there has been published by, the U.S. Internal Revenue Service a ruling or (2) since the Issue Date, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel in the United States shall confirm that, subject to customary assumptions and exclusions, the Holders of the Outstanding Securities of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee for the Securities of that series an Opinion of Counsel in the United States reasonably acceptable to such Trustee confirming that, subject to customary assumptions and exclusions, the Holders of the Outstanding Securities of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to such tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
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(d) no Event of Default or event which with the giving of notice or the lapse of time, or both, would become an Event of Default with respect to the Securities of that series shall have occurred and be continuing on the date of such deposit and no Event of Default under Section 501(4) or Section 501(5) shall have occurred and be continuing on the 123rd day after such date; and
(e) the Company shall have delivered to the Trustee for the Securities of that series an Officers’ Certificate and an Opinion of Counsel in the United States (which opinion of counsel may be subject to customary assumptions and exclusions) each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Section 405. Satisfaction and Discharge of Indenture.
This Indenture will be discharged and will cease to be of further effect as to all Securities of any particular series issued hereunder when either (i) all Securities of that series theretofore authenticated and delivered and all coupons, if any, appertaining thereto (except (A) coupons appertaining to Bearer Securities surrendered for exchange for Registered Securities and maturing after such exchange, whose surrender is not required or has been waived as provided in Section 305, (B) lost, stolen or destroyed Securities or coupons of such series which have been replaced or paid as provided in Section 306, (C) coupons appertaining to Securities called for redemption and maturing after the relevant Redemption Date, whose surrender is not required as provided in Section 1106 and (D) Securities and coupons of such series for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company or discharged from such trust, as provided in the last paragraph of Section 1003) have been delivered to the Trustee for the Securities of that series for cancellation or (ii) (A) all Securities of that series and any coupons appertaining thereto not theretofore delivered to Trustee for cancellation are due and payable by their terms within one year or have become due and payable by reason of the making of a notice of redemption and the Company has irrevocably deposited or caused to be deposited with such Trustee as trust funds in trust an amount of cash in any combination of currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d), in which case the deposit to be made with respect to Securities for which an election has occurred pursuant to Section 311(b) or a Conversion Event has occurred as provided in Section 311(d), shall be made in the currency or currency unit in which such Securities are payable as a result of such election or Conversion Event) sufficient to pay and discharge the entire indebtedness on such Securities and coupons not theretofore delivered to the Trustee for the Securities of that series for cancellation for principal (and premium, if any) and accrued and unpaid interest, if any, to the Stated Maturity or Redemption Date, as the case may be; (B) no Event of Default or event which with the giving of notice or the lapse of time, or both, would become an Event of Default shall have occurred and be continuing on the date of such deposit and no Event of Default under Section 501(4) or Section 501(5) shall have occurred and be continuing on the 123rd day after such date; (C) the Company has paid, or caused to be paid, all sums payable by it under this Indenture; and (D) the Company has delivered irrevocable instructions to the Trustee for the Securities of that series under this Indenture to apply the deposited money toward the payment of such Securities and coupons at the Stated Maturity or the Redemption Date, as the case may be. In addition, the
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Company must deliver an Officers’ Certificate and an Opinion of Counsel to the Trustee for the Securities of that series stating that all conditions precedent to satisfaction and discharge have been satisfied.
Section 406. Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this Indenture and of the Securities of a particular series referred to in Sections 401, 402, 404 or 405, the respective obligations of the Company and the Trustee for the Securities of a particular series under Sections 303, 304, 305, 309, 407, 408, 409, 410, and 508, Article Six, and Sections 701, 702, 1002, 1003, 1004 and 1005, shall survive with respect to Securities of that series until the Securities of that series are no longer outstanding, and thereafter the obligations of the Company and the Trustee for the Securities of a particular series with respect to that series under Sections 407, 408, 409, and 410 shall survive. Nothing contained in this Article Four shall abrogate any of the obligations or duties of the Trustee of any series of Securities under this Indenture.
Notwithstanding the satisfaction of the conditions set forth in Sections 404 or 405 with respect to all the Securities of any series not payable in Dollars, upon the happening of any Conversion Event the Company shall be obligated to make the payments in Dollars required by Section 311(d) to the extent that the Trustee is unable to convert any Foreign Currency or currency unit or currency unit in its possession pursuant to Sections 404 or 405 into the Dollar equivalent of such Foreign Currency or currency unit, as the case may be. If, after the deposits referred to in Sections 404 or 405 have been made, (x) the Holder of a Security is entitled to, and does, elect pursuant to Section 311(b) to receive payment in a currency or currency unit other than that in which the deposit pursuant to Sections 404 or 405 was made, or (y) a Conversion Event occurs as contemplated in Section 311(d), then the indebtedness represented by such Security shall be fully discharged to the extent that the deposit made with respect to such Security shall be converted into the currency or currency unit in which such Security is payable. The Trustee shall return to the Company any non-converted funds or securities in its possession after such payments have been made.
Section 407. Acknowledgment of Discharge by Trustee.
Subject to Section 410, after (i) the conditions of Sections 404 or 405 have been satisfied with respect to the Securities of a particular series, (ii) the Company has paid or caused to be paid all other sums payable hereunder by the Company and (iii) the Company has delivered to the Trustee for the Securities of that series an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent referred to in clause (i) above relating to the satisfaction and discharge of this Indenture have been complied with, the Trustee for the Securities of that series upon written request shall acknowledge in writing the discharge of all of the Company’s obligations under this Indenture except for those surviving obligations specified in this Article Four.
Section 408. Application of Trust Moneys.
All money and Government Obligations deposited with the Trustee for the Securities of a particular series pursuant to Sections 404 or 405 in respect of the Securities of that series shall be
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held in trust and applied by it, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of the Securities and all related coupons of all sums due and to become due thereon for principal (and premium, if any) and interest, if any, but such money need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee for the Securities of a particular series against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Sections 404 or 405 with respect to the Securities of that series or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of outstanding Securities of that series.
Section 409. Repayment to the Company; Unclaimed Money.
The Trustee and any Paying Agent for a series of Securities shall promptly pay or return to the Company upon Company Order any cash or Government Obligations held by them at any time that are not required for the payment of the principal of (and premium, if any) and interest, if any, on the Securities and all related coupons for Securities of that series for which cash or Government Obligations have been deposited pursuant to Sections 404 or 405.
Any money deposited with the Trustee or any Paying Agent for the Securities of any series, or then held by the Company, in trust for the payment of the principal of (and premium, if any) and interest, if any, on any Security of any particular series and all related coupons appertaining thereto and remaining unclaimed for two years after such principal (and premium, if any) and interest, if any, has become due and payable shall, unless otherwise required by mandatory provisions of applicable escheat, or abandoned or unclaimed property law, be paid to the Company on Company Request or (if then held by the Company) shall be discharged from such trusts; and the Holder of such Security and all related coupons shall, thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of such Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that such Trustee or such Paying Agent, before being required to make any such repayment may give written notice to the Holder of such Security in the manner set forth in Section 106, that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will, unless otherwise required by mandatory provisions of applicable escheat, or abandoned or unclaimed property law, be repaid to the Company, as the case may be.
Section 410. Reinstatement.
If the Trustee or Paying Agent for a series of Securities is unable to apply any cash or Government Obligations, as applicable, in accordance with Section 402, 403, 404 or 405 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture and the Securities of that series shall be revived and reinstated as though no deposit had occurred pursuant to Section 402, 403, 404 or 405 until such time as the Trustee or Paying Agent for that series is permitted to apply all such cash or
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Government Obligations in accordance with Section 402, 403, 404 or 405; provided, however, that if the Company has made any payment of principal (and premium, if any) and interest, if any, on any Securities and any related coupons because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities and such coupons to receive such payment from the cash or Government Obligations, as applicable, held by such Trustee or Paying Agent. In the event the Company’s obligations under this Indenture and the Securities are revived and reinstated pursuant to this Section 410, then the obligations of each Guarantor, if any, under its Note Guarantee and this Indenture that were released pursuant to Section 1405 as a result of the Company’s exercise of its rights under this Article Four shall be revived and reinstated as though such release had not occurred.
ARTICLE 5
Remedies
Section 501. Events of Default.
“Event of Default” wherever used herein with respect to any particular series of Securities means any one of the following events and such other events as may be established with respect to the Securities of such series as contemplated by Section 301 (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any installment of interest upon any Security of that series and any related coupon when it becomes due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity or default in the deposit of any sinking fund payment when and as due by the terms of any Security of that series; or
(3) default in the performance of, or breach of, any covenant or warranty of the Company or any Guarantor (if any) in respect of any Security of that series contained in this Indenture or in such Securities (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with) and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee for the Securities of such series or to the Company and such Trustee by the Holders of at least 30% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(4) the Company shall commence any case or proceeding seeking to have an order for relief entered on its behalf as debtor or to adjudicate it as bankrupt or insolvent or seeking reorganization, liquidation, dissolution, winding-up, arrangement, composition or readjustment of its debts or any other relief under any bankruptcy, insolvency,
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reorganization, liquidation, dissolution, arrangement, composition, readjustment of debt or other similar act or law of any jurisdiction, domestic or foreign, now or hereafter existing; or the Company shall apply for a receiver, custodian or trustee (other than any trustee appointed as a mortgagee or secured party in connection with the issuance of indebtedness for borrowed money of the Company) of it or for all or a substantial part of its property; or the Company shall make a general assignment for the benefit of creditors; or the Company shall take any corporate action in furtherance of any of the foregoing; or
(5) an involuntary case or other proceeding shall be commenced against the Company with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect seeking the appointment of a trustee, receiver, liquidator, custodian or similar official of the Company or any substantial part of its property; and such case or other proceeding (A) results in the entry of an order for relief or a similar order against the Company or (B) shall continue unstayed and in effect for a period of 60 consecutive days; or
(6) any other Event of Default provided in the Security or the Board Resolution with respect to Securities of that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any particular series of Securities and any related coupons occurs and is continuing (other than an Event of Default described in Section 501(4) or 501(5) with respect to the Company), then and in every such case either the Trustee for the Securities of such series or the Holders of not less than [30%] in principal amount of the Outstanding Securities of that series may declare the entire principal amount (or, in the case of (i) OID Securities, such lesser amount as may be provided for in the terms of that series or (ii) Indexed Securities, the amount determined in accordance with the specified terms of those Securities) of all the Securities of that series, to be due and payable immediately, by a notice in writing to the Company (and to such Trustee if given by Holders), and upon any such declaration of acceleration such principal or such lesser amount, as the case may be, together with accrued interest and all other amounts owing hereunder, shall become immediately due and payable, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived.
If any Event of Default specified in Section 501(4) or 501(5) occurs with respect to the Company, all of the unpaid principal amount (or, if the Securities of any series then outstanding are (i) OID Securities, such lesser amount as may be provided for in the terms of that series or (ii) Indexed Securities, the amount determined in accordance with the specified terms of those Securities) and accrued interest on all Securities of each series then outstanding shall ipso facto become and be immediately due and payable without any declaration or other act by the Trustee or any Holder.
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At any time after such a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee for the Securities of any series as hereinafter provided in this Article, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and such Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with such Trustee a sum sufficient to pay in the currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d)):
| (A) | all overdue interest on all Securities of that series and any related coupons; |
| (B) | the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and interest thereon from the date such principal became due at a rate per annum equal to the rate borne by the Securities of such series (or, in the case of (i) OID Securities, the Securities’ Yield to Maturity or (ii) Indexed Securities, the rate determined in accordance with the specified terms of those Securities), to the extent that the payment of such interest shall be legally enforceable; |
| (C) | to the extent that payment of such interest is lawful, interest upon overdue interest at a rate per annum equal to the rate borne by the Securities of such series (or, in the case of (i) OID Securities, the Securities’ Yield to Maturity or (ii) Indexed Securities, the rate determined in accordance with the specified terms of those Securities); and |
| (D) | all sums paid or advanced by such Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607; |
and
(2) all Events of Default with respect to the Securities of such series, other than the nonpayment of the principal of Securities of that series which has become due solely by such acceleration, have been cured or waived as provided in Section 513. No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest upon any Security of any series and any related coupons when such interest becomes due and payable and such default continues for a period of 30 days; or
(2) default is made in the payment of the principal of (or premium, if any, on) any Security of any series at its Maturity;
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the Company will, upon demand of the Trustee for the Securities of such series, pay to the Trustee, for the benefit of the Holders of such Securities and coupons, the whole amount then due and payable on such Securities and coupons for principal (and premium if any) and interest, if any, with interest upon the overdue principal (and premium, if any) and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installments of interest at a rate per annum equal to the rate borne by such Securities (or, in the case of (i) OID Securities, the Securities’ Yield to Maturity or (ii) Indexed Securities, the rate determined in accordance with the specified terms of those Securities); and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon such demand, such Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding against the Company for the collection of the sums so due and unpaid, and may prosecute such proceedings to judgment or final decree, and may enforce the same against the Company or any other obligor upon the Securities of such series and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any particular series occurs and is continuing, the Trustee for the Securities of such series may, in its discretion, proceed to protect and enforce its rights and the rights of the Holders of Securities of that series by such appropriate judicial proceedings as such Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relating to the Company or any other obligor upon the Securities of any series or the property of the Company or of such other obligor or their creditors, the Trustee for the Securities of such series (irrespective of whether the principal (or, if the Securities of such series are (i) OID Securities or (ii) Indexed Securities, such amount as may be due and payable with respect to such Securities pursuant to a declaration in accordance with Section 502) of any Security of such series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether such Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise
(i) to file and prove a claim for the whole amount of principal (or, if the Securities of such series are (i) OID Securities or (ii) Indexed Securities, such amount as may be due and payable with respect to such Securities pursuant to a declaration in accordance with Section 502) (and premium, if any) and interest, if any, owing and unpaid in respect of the Securities of such series and any related coupons and to file such other papers or documents as may be necessary or advisable in order to have the claims
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of such Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607) and of the Holders of the Securities of such series and any related coupons allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any such judicial proceeding is hereby authorized by each Holder of Securities and coupons to make such payments to such Trustee, and in the event that such Trustee shall consent to the making of such payments directly to the Holders of Securities and coupons, to pay to such Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel, and any other amounts due such Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee for the Securities of any series to authorize or consent to or accept or adopt on behalf of any Holder of a Security or coupon any plan of reorganization, arrangement, adjustment or composition affecting the Securities of such series or the rights of any Holder thereof, or to authorize the Trustee for the Securities or coupons of any series to vote in respect of the claim of any Holder in any such proceeding for the election of a trustee in bankruptcy or other person performing similar functions.
Section 505. Trustee May Enforce Claims Without Possession of Securities or Coupons.
All rights of action and claims under this Indenture or the Securities or coupons of any series may be prosecuted and enforced by the Trustee for the Securities of any series without the possession of any of the Securities or coupons of such series or the production thereof in any proceeding relating thereto, and any such proceeding instituted by such Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607, be for the ratable benefit of the Holders of the Securities and coupons of such series in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee for the Securities of any series pursuant to this Article with respect to the Securities or coupons of such series shall be applied in the following order, at the date or dates fixed by such Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, if any, upon presentation of the Securities or coupons of such series, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due such Trustee under Section 607;
Second: To the payment of the amounts then due and unpaid upon the Securities and coupons of such series for principal of (and premium, if any) and interest, if any, on such
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Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities and coupons for principal (and premium, if any) and interest, if any, respectively; and
Third: The balance, if any, to the Company.
Section 507. Limitation on Suits.
No Holder of any Security of any particular series or any related coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) an Event of Default with respect to that series shall have occurred and be continuing and such Holder shall have previously given written notice to the Trustee for the Securities of such series of such default and the continuance thereof;
(2) the Holders of not less than 30% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee for the Securities of such series to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to such Trustee indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) such Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to such Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more Holders of Securities of that series shall have any right in any manner whatsoever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Securities of that series, or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all the Holders of Securities of that series.
Section 508. Unconditional Right of Holders to Receive Principal (and Premium, if any) and Interest, if any.
Notwithstanding any other provision in this Indenture, the Holder of any Security or coupon shall have the right which is absolute and unconditional to receive payment of the principal of (and premium, if any) and (subject to Section 307) interest, if any, on such Security on the respective Stated Maturities expressed in such Security or coupon (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder.
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Section 509. Restoration of Rights and Remedies.
If the Trustee for the Securities of any series or any Holder of a Security or coupon has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to such Trustee or to such Holder, then and in every such case the Company, such Trustee and the Holders of Securities or coupons shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of such Trustee and such Holders shall continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee for the Securities of any series or to the Holders of Securities or coupons is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee for the Securities of any series or of any Holder of any Security of such series to exercise any right or remedy accruing upon any Event of Default with respect to the Securities of such series shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to such Trustee for the Securities or coupons of any series or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by such Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of any particular series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee for the Securities of such series with respect to the Securities of that series or exercising any trust or power conferred on such Trustee with respect to such Securities, provided that:
(1) such direction shall not be in conflict with any rule of law or with this Indenture, the Securities or any Note Guarantee, and could not involve the Trustee in personal liability; and
(2) such Trustee may take any other action deemed proper by such Trustee which is not inconsistent with such direction.
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Section 513. Waiver of Past Defaults.
Except as otherwise specified for a series of Securities pursuant to Section 301 and subject to Section 502, the Holders of not less than a majority in principal amount of the Outstanding Securities of any particular series and any related coupons may on behalf of the Holders of all the Securities of that series waive any past default hereunder with respect to that series and its consequences, except:
(1) a default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of that series; or
(2) a default with respect to a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of that series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security or coupon by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for the Securities or coupons of any series for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee for the Securities of any series, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any particular series or to any suit instituted by any Holder of any Security or coupon for the enforcement of the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series or the payment of any coupon on or after the respective Stated Maturities expressed in such Security or coupon (or, in the case of redemption, on or after the Redemption Date).
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee for any series of Securities, but will suffer and permit the execution of every such power as though no such law had been enacted.
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Section 516. Judgment Currency.
If, for the purpose of obtaining a judgment in any court with respect to any obligation of the Company hereunder or under any Security or any related coupon, it shall become necessary to convert into any other currency or currency unit any amount in the currency or currency unit due hereunder or under such Security or coupon, then such conversion shall be made by the Currency Determination Agent at the Market Exchange Rate as in effect on the date of entry of the judgment (the “Judgment Date”). If pursuant to any such judgment, conversion shall be made on a date (the “Substitute Date”) other than the Judgment Date and there shall occur a change between the Market Exchange Rate as in effect on the Judgment Date and the Market Exchange Rate as in effect on the Substitute Date, the Company agrees to pay such additional amounts, if any, as may be necessary to ensure that the amount paid is equal to the amount in such other currency or currency unit which, when converted at the Market Exchange Rate as in effect on the Judgment Date, is the amount due hereunder or under such Security or coupon. Any amount due from the Company under this Section 516 shall be due as a separate debt and is not to be affected by or merged into any judgment being obtained for any other sums due hereunder or in respect of any Security or coupon. In no event, however, shall the Company be required to pay more in the currency or currency unit due hereunder or under such Security or coupon at the Market Exchange Rate as in effect on the Judgment Date than the amount of currency or currency unit stated to be due hereunder or under such Security or coupon so that in any event the Company’s obligations hereunder or under such Security or coupon will be effectively maintained as obligations in such currency or currency unit, and the Company shall be entitled to withhold (or be reimbursed for, as the case may be) any excess of the amount actually realized upon any such conversion on the Substitute Date over the amount due and payable on the Judgment Date.
ARTICLE 6
The Trustee
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to the Securities of any series for which the Trustee is serving as such,
(1) such Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against such Trustee; and
(2) in the absence of bad faith on its part, such Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to such Trustee and conforming to the requirements of this Indenture.
(b) In case an Event of Default with respect to a series of Securities has occurred and is continuing, the Trustee for the Securities of such series shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
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(c) No provision of this Indenture shall be construed to relieve the Trustee for Securities of any series from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section;
(2) such Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) such Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any particular series, determined as provided in Section 512, relating to the time, method and place of conducting any proceeding for any remedy available to such Trustee, or exercising any trust or power conferred upon such Trustee, under this Indenture with respect to the Securities of that series; and
(4) no provision of this Indenture shall require the Trustee for any series of Securities to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee for any series of Securities shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect to Securities of any particular series, the Trustee for the Securities of such series shall give to Holders of Securities of that series, in the manner set forth in Section 106, notice of such default known to such Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of that series, or in the deposit of any sinking fund payment with respect to Securities of that series, such Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of such Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Securities of that series and related coupons. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of that series.
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Section 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee for any series of Securities may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, discretion, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order (other than delivery of any Security, together with any coupons appertaining thereto, to the Trustee for authentication and delivery pursuant to Section 303 which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors of the Company may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture such Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, such Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’ Certificate;
(d) such Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) such Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any series pursuant to this Indenture for which it is acting as Trustee, unless such Holders shall have offered to such Trustee security or indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) such Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, discretion, consent, order, bond, debenture or other paper or document, but such Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters at it may see fit, and, if such Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company;
(g) the Trustee may employ or retain such counsel, accountants, appraisers or other experts or advisers as it may reasonably require for the purpose of determining and discharging its rights and duties hereunder and shall not be responsible for any misconduct on the part of any of them;
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(h) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(i) the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder; and
(k) the Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication thereof and in any coupons shall be taken as the statements of the Company, as the case may be, and neither the Trustee for any series of Securities, nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee for any series of Securities makes no representations as to the validity or sufficiency of this Indenture or of the Securities of any series or coupons, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities, and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Company are true and correct, subject to the qualifications set forth therein. Neither the Trustee for any series of Securities nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee for any series of Securities, any Authenticating Agent, Paying Agent, Security Registrar or any other agent of the Company, or such Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not such Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee for any series of Securities in trust hereunder need not be segregated from other funds except as provided in Section 115 and except to the extent required by law. The Trustee for any series of Securities shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company in writing, as the case may be.
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Section 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee for each series of Securities as the Company and the Trustee shall agree in writing from time to time such compensation in Dollars for all services rendered by it hereunder as shall be agreed upon in writing from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee for each series of Securities in Dollars upon its request for all reasonable expenses, disbursements and advances incurred or made by such Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify such Trustee, its employees, officers, directors and agents in Dollars for, and to hold them harmless against, any loss, damage, claims, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending themselves against any claim, whether asserted by the Company or any Holder or any other Person, or liability in connection with the exercise or performance of any of their powers or duties hereunder.
As security for the performance of the obligations of the Company under this Section, the Trustee for any series of Securities shall have a lien prior to the Securities upon all property and funds held or collected by such Trustee as such, except funds held in trust for the payment of principal of (and premium, if any) or interest, if any, on particular Securities.
When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 501(4) or Section 501(5), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law.
Section 608. Disqualification; Conflicting Interests.
The Trustee for the Securities shall be subject to the provisions of Section 310(b) of the Trust Indenture Act during the period of time required thereby. Nothing herein shall prevent the Trustee from filing with the Commission the application referred to in the penultimate paragraph of Section 310(b) of the Trust Indenture Act. In determining whether the Trustee has a conflicting interest as defined in Section 310(b) of the Trust Indenture Act with respect to the Securities of any series, there shall be excluded Securities of any particular series of Securities other than that series.
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Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder for each series of securities which shall be
(i) a corporation or banking company organized and doing business under the laws of the United States of America, any state thereof, or the District of Columbia, authorized under such laws to exercise corporate trust powers, and subject to supervision or examination by Federal or State authority, or
(ii) a corporation or other Person organized and doing business under the laws of a foreign government that is permitted to act as Trustee pursuant to a rule, regulation, or other order of the Commission, authorized under such laws to exercise corporate trust powers, and subject to supervision or examination by authority of such foreign government or a political subdivision thereof substantially equivalent to supervision or examination applicable to United States institutional trustee, having a combined capital and surplus of at least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. Neither the Company nor any Person directly or indirectly controlling, controlled by, or under the common control of the Company shall serve as Trustee for the Securities. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereunder specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee for the Securities of any series and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
(b) The Trustee for the Securities of any series may resign at any time with respect to the Securities of such series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee for the Securities of such series within 60 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(c) The Trustee for the Securities of any series may be removed at any time with respect to the Securities of such series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to such Trustee and to the Company.
(d) If at any time:
(1) the Trustee for the Securities of any series shall fail to comply with Section 310(b) of the Trust Indenture Act pursuant to Section 608 hereof after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security of such series for at least six months, unless the Trustee’s duty to resign is stayed in accordance with the provisions of Section 310(b) of the Trust Indenture Act, or
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(2) such Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(3) such Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of such Trustee or of its property shall be appointed or any public officer shall take charge or control of such Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Company by a Board Resolution may remove such Trustee and appoint a successor Trustee or (ii) subject to Section 514, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor Trustee.
(e) If the Trustee for the Securities of any series shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for the Securities of any series for any cause, the Company, by a Board Resolution, shall promptly appoint a successor Trustee with respect to the Securities of such series and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of such series shall have not been appointed by the Company pursuant to this Section 610, then a successor Trustee may be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee. If no successor Trustee for the Securities of such series shall have been so appointed by the Company or the Holders and shall have accepted appointment in the manner required by Section 611, and if such Trustee to be replaced is still incapable of acting, any Holder who has been a bona fide Holder of a Security of such series for at least six months, on behalf of himself and all others similarly situated, or the retiring Trustee, may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series in the manner and to the extent provided in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities of that series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) Every such successor Trustee appointed hereunder with respect to the Securities of any series shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor
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Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in Subsections (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee for the Securities of any series shall be qualified and eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee for the Securities of any series may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of such Trustee, shall be the successor of such Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the
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part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee or the Authenticating Agent for such series then in office, any successor by merger, conversion or consolidation to such authenticating Trustee or Authenticating Agent, as the case may be, may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee or successor Authenticating Agent had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
The Trustee is subject to Section 311(a) of the Trust Indenture Act, excluding any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent indicated.
Section 614. Authenticating Agents.
At any time when any of the Securities of any series remain Outstanding, the Trustee for the Securities of such series may, subject to its sole discretion, appoint one or more Authenticating Agents with respect to the Securities of such series, which may include the Company or any Affiliate of the Company, with power to act on the Trustee’s behalf and subject to its discretion in the authentication and delivery of Securities of such series in connection with transfers and exchanges under Sections 304, 305 and 1107 as fully to all intents and purposes as though such Authenticating Agent had been expressly authorized by those Sections of this Indenture to authenticate and deliver Securities of such series. For all purposes of this Indenture, the authentication and delivery of Securities of such series by an Authenticating Agent for such Securities pursuant to this Section shall be deemed to be authentication and delivery of such Securities “by the Trustee” for the Securities of such series. Any such Authenticating Agent shall at all times be a corporation organized and doing business under the laws of the United States or of any State, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually pursuant to law or the requirements of such supervising or examining authority, then for the purposes of this Section the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent for any series of Securities shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, consolidation or conversion to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate trust business of any Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, if such successor corporation is otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the parties hereto or the Authenticating Agent or such successor corporation.
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Any Authenticating Agent for any series of Securities may resign at any time by giving written notice of resignation to the Trustee for such series and to the Company. The Trustee for any series of Securities may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company in the manner set forth in Section 105. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent for any series of Securities shall cease to be eligible under this Section, the Trustee for such series may appoint a successor Authenticating Agent, shall give written notice of such appointment to the Company and shall give written notice of such appointment to all Holders of Securities of such series in the manner set forth in Section 106. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
If an appointment with respect to one or more series of Securities is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certification of authentication, an alternate certificate of authentication in the following form:
“This is one of the Securities of the series designated therein described in the within-mentioned Indenture.
| REGIONS BANK, as Trustee | ||||||
| By | By | |||||
| As Authenticating Agent | Authorized Signatory” | |||||
ARTICLE 7
Holders’ Lists and Reports by Trustee and the Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each particular series of Securities, the Company will furnish or cause to be furnished to the Trustee for the Securities of such series,
(a) semi-annually, not more than 15 days after each Regular Record Date relating to Securities of each series at the time Outstanding (or, if there is no Regular Record Date relating to that series, on June 30 and December 31), a list, in such form as such Trustee may reasonably require, containing all the information in the possession or control of the Company or any of its Paying Agents other than such Trustee as to the names and addresses of the Holders of that series as of such dates,
(b) on semi-annual dates on each year to be determined pursuant to Section 301 if the Securities of such series do not bear interest, a list of similar form and content, and
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(c) at such other times as such Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished, excluding from any such list names and addresses received by such Trustee in its capacity as Security Registrar for the Securities of such series, if so acting.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee for each series of Securities shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of the Securities of such series contained in the most recent lists furnished to such Trustee as provided in Section 701 and the names and addresses of Holders of the Securities of such series received by such Trustee in its capacity as Security Registrar for such series, if so acting. The Trustee for each series of Securities may destroy any list relating to such series of Securities furnished to it as provided in Section 701 upon receipt of a new list relating to such series so furnished.
(b) If three or more Holders of Securities of any particular series (hereinafter referred to as “applicants”) apply in writing to the Trustee for the Securities of any such series, and furnish to such Trustee reasonable proof that each such applicant has owned a Security of that series for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders of Securities of that series with respect to their rights under this Indenture or under the Securities of that series and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then such Trustee shall, within five Business Days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at the time by such Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders of Securities of that series whose names and addresses appear in the information preserved at the time by such Trustee in accordance with Section 702(a), and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.
If any such Trustee shall elect not to afford such applicants access to that information, such Trustee shall, upon the written request of such applicants, mail to each Holder of Securities of that series whose name and address appears in the information preserved at the time by such Trustee in accordance with Section 702(a), a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to such Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender, such Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of such Trustee, such mailing would be contrary to the best interests of the Holders of Securities of that series or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written
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statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, such Trustee shall mail copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise such Trustee shall be relieved of any obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities of each series or coupons, by receiving and holding the same, agrees with the Company and the Trustee for the Securities of such series that neither the Company nor such Trustee, nor any agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of the Securities of such series in accordance with Section 702(b), regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 702(b).
Section 703. Reports by Trustee.
(a) Within 60 days after March 15 of each year, the Trustee for the Securities of each series shall mail to each Holder of the Securities of such series entitled to receive reports pursuant to Section 704(3), a brief report dated as of such date that complies with Section 313(a) of the Trust Indenture Act. The Trustee for the Securities of each series shall also comply with Sections 313(b), 313(c) and 313(d) of the Trust Indenture Act.
(b) At the time that the Trustee for the Securities of each series mails such a report to the Holders of Securities of such series, each such Trustee shall file a copy of that report with the Commission and with each stock exchange on which the Securities of that series are listed. The Company shall provide notice to the appropriate Trustee when the Securities of any series are listed on any stock exchange.
Section 704. Reports by Company.
The Company will:
(1) file with the Trustee for the Securities of such series, within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if the Company is not required to file information, documents or reports pursuant to either of said Sections, then it will file with such Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;
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(2) file with the Trustee for the Securities of such series and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents, and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders of Securities of each series, as provided in Section 703(a), within 30 days after the filing thereof with the Trustee for the Securities of such series, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (1) and (2) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee, subject to Section 601 hereof, is entitled to rely exclusively on Officers’ Certificates).
ARTICLE 8
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation or convey or transfer its properties and assets substantially as an entirety to any Person unless:
(1) either the Company shall be the continuing corporation or the corporation (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer the properties and assets of the Company substantially as an entirety shall be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia, and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee for each series of Securities, in form reasonably satisfactory to each such Trustee, the due and punctual payment of the principal of (and premium, if any) and interest, if any, (including all additional amounts, if any, payable pursuant to Section 516) on all the Securities and any related coupons and the performance of every covenant of this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of Default with respect to any series of Securities, and no event which, after notice or lapse of time, or both, would become an Event of Default with respect to any series of Securities, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee for each series of Securities an Officers’ Certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
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Section 802. Successor Person Substituted.
Upon any consolidation or merger, or any conveyance or transfer of the properties and assets of the Company substantially as an entirety in accordance with Section 801, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein and thereafter the predecessor Person shall be relieved of all obligations and covenants under this Indenture, the Securities and any related coupons and, in the event of any such consolidation, merger, conveyance or transfer, the Company as the predecessor Person may thereupon or at any time thereafter be dissolved, wound up, or liquidated.
ARTICLE 9
Supplemental Indentures
Section 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the Company and, if applicable, each of the Guarantors, if any, in each case when authorized by a Board Resolution, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to such Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or any Guarantor (if any), as the case may be, and the assumption by any such successor of the covenants of the Company or any such Guarantor (if any) herein and in the Securities; or
(2) to add to the covenants of the Company and, if applicable, the Guarantors (if any), for the benefit of the Holders of all or any particular series of Securities and any related coupons (and, if such covenants are to be for the benefit of fewer than all series of Securities, stating that such covenants are being included solely for the benefit of such series), or to surrender any right or power herein conferred upon the Company or any such Guarantor (if any); or
(3) to add any additional Events of Default with respect to any or all series of Securities (and, if any such Event of Default applies to fewer than all series of Securities, stating each series to which such Event of Default applies); provided, however, that in respect of any such additional Events of Default, such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may limit the remedies available to the Trustee upon such default or may limit the right of Holders of a majority in aggregate principal amount of that or those series of Securities to which such additional Events of Default apply to waive such default; or
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(4) to pledge property to the Trustee as security for the Securities; or
(5) to reflect the addition or release of any Guarantor in accordance with Article Fourteen hereof; or
(6) to add to or to change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal of (or premium, if any) or interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities of other authorized denominations, to provide for the issuance of uncertificated Securities of any series in addition to or in place of any certificated Securities and to make all appropriate changes for such purposes; provided, however, that any such action shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect; or
(7) to change or eliminate any of the provisions of this Indenture, provided, however, that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or
(8) to evidence and provide for the acceptance of appointment hereunder of a Trustee other than Regions Bank as Trustee for a series of Securities and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 609; or
(9) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611(b); or
(10) to add to the conditions, limitations and restrictions on the authorized amount, form, terms or purposes of issue, authentication and delivery of Securities, as herein set forth, other conditions, limitations and restrictions thereafter to be observed; or
(11) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Section 401; provided, however, that any such action shall not adversely affect the interests of the Holders of Securities of such series and any related coupons or any other series of Securities in any material respect; or
(12) to add to or change or eliminate any provisions of this Indenture as shall be necessary or desirable in accordance with any amendments to the Trust Indenture Act or to maintain the qualification of this Indenture under the Trust Indenture Act; or
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(13) to issue and establish the form and terms of any series of Securities with any terms permitted by the Trust Indenture Act whether or not the provisions hereunder specifically permit the terms in this Indenture to be changed; or
(14) to conform any non-conforming language or defined terms in the text of this Indenture or any Securities to any provision of the section “Description of the Notes” contained in the prospectus or other offering document used in connection with the initial sale of such Securities so that such provision in the “Description of Notes” section of such prospectus or other offering document reflects a verbatim recitation of a provision of this Indenture; or
(15) to change any other provisions of this Indenture with respect to any series of Securities; provided, however, that any such action shall not adversely affect the interests of the Holders of Securities of such series and any related coupons or any other series of Securities in any material respect; or
(16) to make any other provisions with respect to matters or questions arising under this Indenture, provided any such provision other shall not adversely affect the Holders of Securities of any series in any material respect; or
(17) to cure any ambiguity or mistake, to correct or supplement any provision herein which may be inconsistent with any other provision herein, to convey, transfer, assign, mortgage or pledge any property to or with the Trustee for the Securities of any series or to surrender any right or power herein conferred upon the Company, or to make any other provisions with respect to matters or questions arising under this Indenture, provided such action shall not adversely affect the interests of the Holders of Securities of any particular series in any material respect.
Section 902. Supplemental Indentures with Consent of Holders.
The Company and, if applicable, the Guarantors (if any), in each case, when authorized by a Board Resolution, may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of such Securities and any related coupons under this Indenture, but only with the consent of the Holders of more than 50% in aggregate principal amount of the Outstanding Securities of each series of Securities then Outstanding affected thereby, in each case by Act of said Holders of Securities of each such series delivered to the Company, the Guarantors (if any) and the Trustee for Securities of each such series; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon, if any (or, in the case of OID Securities, reduce the rate of accretion of original issue discount), or any premium payable upon the redemption thereof, or reduce the amount of the principal of an OID Security that would be due and payable upon a declaration of acceleration of the Maturity thereof, or provable in bankruptcy, or, in the
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case of Indexed Securities, reduce the amount payable in accordance with the terms of those Securities upon a declaration of acceleration of Maturity thereof, or provable in bankruptcy, pursuant to Section 502, or change the Place of Payment, or the currency or currency unit in which any Security or the principal or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date); or reduce or alter the method of computation of any amount payable upon redemption, repayment or purchase of any Securities by the Issuer (or the time when such redemption, repayment or purchase may be made); or release any Note Guarantee by any Guarantor (if any) other than as provided in this Indenture (it being understood that any release effected by Section 802 shall not constitute any of the foregoing); or
(2) reduce the percentage in principal amount of the Outstanding Securities of any particular series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture; or
(3) modify any of the provisions of this Section or Section 513, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder of a Security or coupon with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements of Sections 609, 611(b), 901(8) and 901(9).
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee for any series of Securities shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Officers’ Certificate and Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and that all conditions to the execution of such supplemental indenture have been satisfied. The Trustee for any series of Securities may, but shall not be obligated to, enter into any such supplemental indenture which affects such Trustee’s own rights, liabilities, duties or immunities under this Indenture or otherwise.
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Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder and of any coupons appertaining thereto shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any particular series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee for the Securities of such series, bear a notation in form approved by such Trustee as to any matter provided for in such supplemental indenture. If the Company or the Guarantors (if any) shall so determine, new Securities of any series and any related coupons so modified as to conform, in the opinion the Board of Directors of the Company or the Guarantors (if any), to any such supplemental indenture may be prepared and executed by the Company or the Guarantors (if any) and such Securities may be authenticated and delivered by such Trustee in exchange for Outstanding Securities of such series and any related coupons.
ARTICLE 10
Covenants
Section 1001. Payment of Principal (and Premium, if any) and Interest, if any.
The Company agrees, for the benefit of each particular series of Securities, that it will duly and punctually pay in the currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d)) the principal of (and premium, if any) and interest, if any, on that series of Securities in accordance with the terms of the Securities of such series, any coupons appertaining thereto and this Indenture. Unless otherwise specified as contemplated by Section 301 with respect to any series of Securities, any interest due on Bearer Securities on or before Maturity shall be payable only upon presentation and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature. The interest, if any, due in respect of any temporary or permanent Global Security, as provided in the terms and conditions of such Security, shall be payable only upon presentation of such Security to the Trustee thereof for notation thereon of the payment of such interest.
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Section 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities the Company will maintain in each Place of Payment for that series an office or agency where Securities of that series may be presented or surrendered for payment, an office or agency where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company with respect to the Securities of that series and this Indenture may be served. If Securities of a series are issuable as Bearer Securities, the Company will maintain (A) an office or agency (which may be the same office or agency) in a Place of Payment for that series in the United States where any Registered Securities of that series may be presented or surrendered for payment, where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange, where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served and where Bearer Securities of that series and related coupons may be presented or surrendered for payment in the circumstances described in the following paragraph (and not otherwise), (B) subject to any laws or regulations applicable thereto, in a Place of Payment for that series which is located outside the United States, an office or agency where Securities of that series and related coupons may be presented and surrendered for payment; provided, however, that if the Securities of that series are listed on the Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, the Company will maintain a Paying Agent for the Securities of that series in Luxembourg or any other required city located outside the United States, as the case may be, so long as the Securities of that series are listed on such exchange, and (C) subject to any laws or regulations applicable thereto, in a Place of Payment for that series located outside the United States an office or agency where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee for the Securities of that series of the location, and any change in the location, of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency in respect of any series of Securities or shall fail to furnish the Trustee for the Securities of that series with the address thereof, such presentations (to the extent permitted by law), and surrenders of Securities of that series may be made and notices and demands may be made or served at the Corporate Trust Office of such Trustee, except that Bearer Securities of that series and the related coupons may be presented and surrendered for payment at the offices specified in the Security, and the Company hereby appoints the same as its agent to receive such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to Section 301, no payment of principal (and premium, if any) or interest, if any, on Bearer Securities shall be made at any office or agency of the Company in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States. Payments will not be made in respect of Bearer Securities or coupons appertaining thereto pursuant to presentation to the Company, or its designated Paying Agents within the United States. Notwithstanding the foregoing, payment of principal of (and premium, if any) and interest, if any, on any Bearer Security denominated and payable in Dollars will be made at the office of the Company’s Paying Agent in the United States, if, and only if, payment in Dollars of
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the full amount of such principal, premium or interest, as the case may be, at all offices or agencies outside the United States maintained for that purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions and the Company has delivered to the Trustee an Opinion of Counsel to that effect.
The Company may also from time to time designate one or more other offices or agencies (in or outside the Place of Payment) where the Securities of one or more series may be presented or surrendered for any or all of the purposes specified above in this Section and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for such purpose. The Company will give prompt written notice to the Trustee for the Securities of each series so affected of any such designation or rescission and of any change in the location of any such office or agency. Unless otherwise specified with respect to any Securities pursuant to Section 301 with respect to a series of Securities, the Company hereby designates as a Place of Payment for each series of Securities the office or agency of the Company in the Borough of Manhattan, the City of New York, and initially appoints the Trustee at its Corporate Trust Office as Paying Agent in such city and as its agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to Section 301, if and so long as the Securities of any series (i) are denominated in a currency other than Dollars or (ii) may be payable in a currency other than Dollars, or so long as it is required under any other provision of the Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, a Currency Determination Agent.
Section 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any particular series of Securities and any related coupons, it will, on or before each due date of the principal of (and premium, if any) or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d)) sufficient to pay the principal (and premium, if any) and interest, if any, so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee for the Securities of such series of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any particular series of Securities and any related coupons, it will, prior to each due date of the principal of (and premium, if any) or interest, if any, on any such Securities, deposit with a Paying Agent for the Securities of such series a sum (in the currency or currency unit described in the preceding paragraph) sufficient to pay the principal (and premium, if any) and interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled thereto, and (unless such Paying Agent is the Trustee for the Securities of such series) the Company will promptly notify such Trustee of its action or failure so to act.
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The Company will cause each Paying Agent for any particular series of Securities other than the Trustee for the Securities of such series to execute and deliver to such Trustee an instrument in which such Paying Agent shall agree with such Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest, if any, on Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give such Trustee notice of any default by the Company (or any other obligor upon the Securities) in the making of any payment of principal (or premium, if any) and interest, if any, on Securities of that series; and
(3) at any time during the continuation of any such default, upon the written request of such Trustee, forthwith pay to such Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee for the Securities of any series all sums held in trust by the Company or such Paying Agent, such sums to be held by such Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to such Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Section 1004. Statements as to Compliance.
The Company will deliver to the Trustee for each series of Securities, within 120 days after the end of each fiscal year of the Company (beginning with the fiscal year in which the first series of Securities under this Indenture has been issued), a written statement signed by the principal executive officer, principal financial officer or principal accounting officer of the Company stating that:
(1) a review of the activities of the Company and the Guarantors, if any, during such year and of performance under this Indenture has been made under his supervision; and
(2) to the best of his or her knowledge, based on such review, the Company and the Guarantors, if any, is in compliance with all conditions and covenants under this Indenture.
For purposes of this Section, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture.
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Section 1005. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any right or franchise if the Board of Directors of the Company shall determine that the preservation thereof is no longer necessary or desirable in the conduct of the business of the Company.
Section 1006. Waiver of Certain Covenants.
The Company and the Guarantors, if any, may omit in any particular instance to comply with any covenant or condition set forth in Sections 1004 and 1005 (and any other covenant or condition in addition to those set forth herein applicable to Securities of any series pursuant to Section 301 hereof), if before or after the time for such compliance the Holders of more than 50% in principal amount of the Outstanding Securities of each series of Securities affected by the omission shall, in each case by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee for the Securities of each series with respect to any such covenant or condition shall remain in full force and effect.
Section 1007. Calculation of Original Issue Discount.
If applicable, the Company shall file with the Trustee promptly at the end of each calendar year (i) a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on Outstanding Securities as of the end of such year and (ii) such other specific information relating to such original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time.
Section 1008. Statement by Officers as to Default.
The Company shall deliver to the Trustee, within five Business Days after the Company becomes aware of the occurrence of any Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, an Officers’ Certificate setting forth the details of such Event of Default or event and the action which the Company proposes to take with respect thereto.
ARTICLE 11
Redemption of Securities
Section 1101. Applicability of this Article.
Redemption of Securities of any series (whether by operation of a sinking fund or otherwise) as permitted or required by any form of Security issued pursuant to this Indenture shall be made in accordance with such form of Security and this Article; provided, however, that if any provision of any such form of Security shall conflict with any provision of this Article, the provision of such form of Security shall govern.
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Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities of any series shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company of less than all of the Securities of any particular series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee for the Securities of such series) notify such Trustee by Company Request of such Redemption Date and of the principal amount of Securities of that series to be redeemed and shall deliver to such Trustee such documentation and records as shall enable such Trustee to select the Securities to be redeemed pursuant to Section 1103. In the case of any redemption of Securities of any series prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee for Securities of such series with an Officers’ Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities are to be redeemed, the Company may select the series to be redeemed, and if less than all the Securities of any series are to be redeemed, the particular Securities of that series to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee for the Securities of such series, from the Outstanding Securities of that series not previously called for redemption, by such method as such Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series, or any integral multiple thereof) of the principal amount of Securities of that series of a denomination larger than the minimum authorized denomination for Securities of that series pursuant to Section 302 in the currency or currency unit in which the Securities of such series are denominated.
The Trustee for the Securities of any series to be redeemed shall promptly notify the Company in writing of the Securities of such series selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106 not later than the thirtieth (30th) day and not earlier than the sixtieth (60th) day prior to the Redemption Date, unless as set forth otherwise pursuant to Section 301, to each Holder of Securities to be redeemed.
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All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of a particular series are to be redeemed, the identification (and, in the case of partial redemption, the respective principal amounts) of the particular Securities to be redeemed, including the Identifying Number of such Securities,
(4) in case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the Holder will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price will become due and payable upon each such Security or portion thereof, and that interest thereon, if any (or in the case of OID Securities, original issue discount), shall cease to accrue on and after said date,
(6) the place or places where such Securities, together in the case of Bearer Securities with all coupons appertaining thereto, if any, maturing after the Redemption Date are to be surrendered for payment of the Redemption Price,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by all coupons maturing subsequent to the date fixed for redemption or the amount of any such missing coupon or coupons will be deducted from the Redemption Price or security or indemnity satisfactory to the Company, the Trustee for such series and any Paying Agent is furnished, and
(9) if Bearer Securities of any series are to be redeemed and any Registered Securities of such series are not to be redeemed, and if such Bearer Securities may be exchanged for Registered Securities not subject to redemption on this Redemption Date pursuant to Section 305 or otherwise, the last date, as determined by the Company, on which such exchanges may be made.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee for such Securities in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
Prior to the opening of business on any Redemption Date, the Company shall deposit with the Trustee for the Securities to be redeemed or with a Paying Agent for such Securities (or,
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if the Company is acting as its own Paying Agent for such Securities, segregate and hold in trust as provided in Section 1003) an amount of money in the currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such Series and except as provided in Sections 311(b) and 311(d)) sufficient to pay the principal amount of (and premium, if any, thereon), and (except if the Redemption Date shall be an Interest Payment Date) any accrued interest on, all the Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified in the currency or currency unit in which the Securities of such series are payable (except as otherwise provided pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d)) and from and after such date (unless the Company shall default in the payment of the Redemption Price) such Securities shall cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below, shall be void. Upon surrender of such Security for redemption in accordance with said notice together with all coupons, if any, appertaining thereto maturing after the Redemption Date, such Security or specified portions thereof shall be paid by the Company at the Redemption Price; provided, however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of coupons for such interest, and provided, further, that unless otherwise specified as contemplated by Section 301, installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied by all coupons appertaining thereto maturing after the Redemption Date, such Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing coupons or the surrender of such missing coupon or coupons may be waived by the Company if there is furnished to the Company, the Trustee for such Security and any Paying Agent such security or indemnity as they may require to save the Company, such Trustee and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to such Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest represented by coupons shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest
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from the Redemption Date at a rate per annum equal to the rate borne by the Security (or, in the case of (i) OID Securities, the Security’s Yield to Maturity or (ii) Indexed Securities, the rate determined in accordance with the specified terms of those Securities).
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be surrendered at the Place of Payment (with, if the Company or the Trustee for such Security so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, and the Security Registrar for such Security duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute and such Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Registered Security or Securities, of any authorized denomination as requested by such Holder, of the same series and having the same terms and provisions and in an aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Registered Security so surrendered.
ARTICLE 12
Sinking Funds
Section 1201. Applicability of this Article.
Redemption of Securities through operation of a sinking fund as permitted or required by any form of Security issued pursuant to this Indenture shall be made in accordance with such form of Security and this Article; provided, however, that if any provision of any such form of Security shall conflict with any provision of this Article, the provision of such form of Security shall govern.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any particular series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of Securities of any particular series is herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any particular series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any particular series as provided for by the terms of Securities of that series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption), together in the case of any Bearer Securities of such series with all unmatured coupons appertaining thereto, and (2) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided, however, that such
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Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee for such Securities at the principal amount thereof and the amount of such sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 30 days prior to each sinking fund payment date for any particular series of Securities, the Company will deliver to the Trustee for the Securities of such series an Officers’ Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash in the currency or currency unit in which the Securities of that series are payable (except as otherwise specified pursuant to Section 301 for the Securities of that series and except as provided in Sections 311(b) and 311(d)) and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 1202 and shall state the basis for such credit and that such Securities have not previously been so credited and will also deliver to such Trustee any Securities to be so delivered. Such Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE 13
Meetings of Holders of Securities
Section 1301. Purposes for Which Meetings May be Called.
If Securities of a series are issuable as Bearer Securities, a meeting of Holders of Securities of such series may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series.
Section 1302. Call, Notice and Place of Meetings.
(a) The Trustee for any series of Securities that includes Bearer Securities, may at any time call a meeting of the Holders of Securities of such series for any purpose specified in Section 1301, to be held at such time and at such place in the Borough of Manhattan, The City of New York, or in London, as such Trustee shall determine. Notice of every meeting of Holders of Securities of such series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 106, not less than 20 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding Securities of any such series shall have requested the Trustee for any such series to call a meeting of the Holders of Securities of such
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series for any purpose specified in Section 1301, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and such Trustee shall not have made the first publication of the notice of such meeting within 30 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place in the Borough of Manhattan, The City of New York, or in London, for such meeting and may call such meeting for such purposes by giving notice thereof as provided in subsection (a) of this Section.
Section 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee for such series and its counsel and any representatives of the Company and its counsel.
Section 1304. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Subject to Section 1305(d), notice of the reconvening of any adjourned meeting shall be given as provided in Section 1302(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly that Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of that series; provided, however, that except as limited by the proviso to Section 902, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage which is less than a majority in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding Securities of that series.
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Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such series and the related coupons, whether or not present or represented at the meeting.
Section 1305. Determination of Voting Rights; Conduct and Adjournment of Meetings.
(a) Notwithstanding any other provision of this Indenture, the Trustee for any series of Securities that includes Bearer Securities may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of such series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 104 and the appointment of any proxy shall be proved in the manner specified in Section 104 or by having the signature of the person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized by Section 104 to certify to the holding of Bearer Securities. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee for any series of Securities that includes Bearer Securities shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of Securities as provided in Section 1302(b), in which case the Company or the Holders of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount of Securities of such series held or represented by him as determined in accordance with Section 115; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of holders of Securities of any series duly called pursuant to Section 1302 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting; and the meeting may be held as so adjourned without further notice.
Section 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial
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numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in triplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 1302 and, if applicable, Section 1304. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee for such series of Securities to be preserved by such Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE 14
Note Guarantees
Section 1401. Guarantee.
(a) Subject to this Article Fourteen, each of the Guarantors, if any, hereby, jointly and severally, unconditionally guarantees to each Holder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, (the “Note Guarantee”) that:
(1) the principal of, premium, if any, and interest on, the Securities will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Securities, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(2) in case of any extension of time of payment or renewal of any Securities or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors, if any, will be jointly and severally obligated to pay the same immediately. Each Guarantor, if any, agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The Guarantors, if any, hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against
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the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor, if any. Each Guarantor, if any, hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Note Guarantee will not be discharged except by complete performance of the obligations contained in the Securities and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors, if any, or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors (if any) any amount paid by either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(d) Each Guarantor, if any, agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor, if any, further agrees that, as between the Guarantors (if any) on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article Five hereof, such obligations (whether or not due and payable) will forthwith become due and payable by the Guarantors, if any, for the purpose of this Note Guarantee. The Guarantors, if any, will have the right to seek contribution from any non-paying Guarantor, if any, so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.
Section 1402. Limitation on Guarantor Liability.
Each Guarantor, if any, and by its acceptance of Securities, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor, if any, not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors, if any, hereby irrevocably agree that the obligations of such Guarantor, if any, will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor, if any, that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor, if any, in respect of the obligations of such other Guarantor, if any, under this Article Fourteen, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance.
Section 1403. Execution and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 1401 hereof, each Guarantor, if any, hereby agrees that a notation of such Note Guarantee substantially in the form attached as
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Exhibit F hereto will be endorsed by an Officer of such Guarantor, if any, on each Securities authenticated and delivered by the Trustee and that this Indenture will be executed on behalf of such Guarantor, if any, by one of its Officers.
Each Guarantor, if any, hereby agrees that its Note Guarantee set forth in Section 1401 hereof will remain in full force and effect notwithstanding any failure to endorse on each Security a notation of such Note Guarantee.
If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates the Security on which a Note Guarantee is endorsed, the Note Guarantee will be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors, if any.
Section 1404. Guarantors May Consolidate, etc., on Certain Terms.
Except as otherwise provided in Section 1405 hereof, no Guarantor (if any) will, and the Company will not permit any Guarantor (if any) to, consolidate or merge with or into or wind up into (whether or not such Guarantor, if any, is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all its properties or assets in one or more related transactions, to any Person unless: (a) such Guarantor, if any, is the surviving entity or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor, if any) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Guarantor, if any, or such Person, as the case may be, being herein called the “Successor Person”); (b) the Successor Person, if other than such Guarantor, if any, expressly assumes all the obligations of such Guarantor, if any, under this Indenture and such Guarantor’s Note Guarantee, if any, pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee; (c) immediately after such transaction, no Default or Event of Default exists; and (d) the Company shall have delivered to the Trustee an Officer’s Certificate and an opinion of counsel, each stating that such consolidation, merger or transfer and such supplemental indentures, if any, comply with this Indenture.
In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Note Guarantee endorsed upon the Securities and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, if any, such successor Person will succeed to and be substituted for the Guarantor, if any, with the same effect as if it had been named herein as a Guarantor, if any. Such successor Person thereupon may cause to be signed any or all of the Note Guarantees to be endorsed upon all of the Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee. All the Note Guarantees so issued will in all respects have the same legal rank and benefit under this Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Note Guarantees had been issued at the date of the execution hereof.
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Except as set forth in Article 8 hereof, and notwithstanding clause 2 above, nothing contained in this Indenture or in any of the Securities will prevent any consolidation or merger of a Guarantor, if any, with or into the Company or another Guarantor, if any, or will prevent any sale or conveyance of the property of a Guarantor, if any, as an entirety or substantially as an entirety to the Company or another Guarantor, if any.
Section 1405. Releases.
The Note Guarantee of a Guarantor, if any, will be released:
(a) in connection with any sale or other disposition of all or substantially all the assets of that Guarantor (if any), including by way of merger or consolidation, to a Person that is not (either before or after giving effect to such transaction) the Company or a Company Subsidiary;
(b) in connection with any sale or other disposition of all the Capital Stock of that Guarantor, if any, to a Person that is not (either before or after giving effect to such transaction) the Company or a Company Subsidiary; or
(c) upon Legal Defeasance or Covenant Defeasance or satisfaction and discharge of this Indenture in accordance with Article Four hereof.
Any Guarantor, if any, not released from its obligations under its Note Guarantee as provided in this Section 1405 will remain liable for the full amount of the principal of and interest and premium, if any, on the Securities and for the other obligations of any Guarantor, if any, under this Indenture as provided in this Article Fourteen.
[signature pages follow]
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This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first written above.
| COMMUNITY HEALTH SYSTEMS, INC. Issuer | ||
| By: | ||
| Name: | ||
| Title: | ||
| REGIONS BANK, Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
EXHIBIT A
[LEGEND IF SECURITY IS A GLOBAL SECURITY]
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 305 OF THE INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 309 OF THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF COMMUNITY HEALTH SYSTEMS, INC.
A-1
[FACE OF SECURITY]
CUSIP
[TITLE OF SECURITIES]
| No. |
$ |
COMMUNITY HEALTH SYSTEMS, INC.
promises to pay to or registered assigns, the principal sum of Interest Payment Dates [ ] and [ ], commencing on [ ].
Record Dates: [ ] and [ ]
Dated: ,
| COMMUNITY HEALTH SYSTEMS, INC. | ||
| By: |
||
| Name: | ||
| Title: | ||
Dated: ,
This is one of the Securities referred to
in the within-mentioned Indenture:
[ ],
as Trustee
| By: | ||
| Authorized Signatory |
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[Back of Security]
[Insert title of Securities]
[Insert the Global Security Legend, if applicable pursuant to the provisions of the Indenture]
[Insert any legend required by the Internal Revenue Code and the regulations thereunder]
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
| 1. | Interest. |
Community Health Systems, Inc., a Delaware corporation (herein the “Company” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to , or registered assigns, the principal sum of [Dollars] [if other than Dollars, substitute other currency units] on , [if the Security is to bear interest prior to Stated Maturity, insert — , and to pay interest thereon from or from the most recent Interest Payment Date to which interest has been paid or duly provided for], [semiannually] [if other than semi-annual interest at a fixed rate, insert frequency of payment and payment dates] on and in each year, commencing , and at the Stated Maturity thereof, at [if the Security is to bear interest at a fixed rate, insert — the rate of % per annum], [if the Security is to bear interest at a rate determined with reference to one or more formula, refer to description index below] until the principal hereof is paid or made available for payment] [if applicable, insert — , and (to the extent that the payment of such interest shall be legally enforceable) at [if the Security is to bear interest at a fixed rate, insert — the rate of % per annum on any overdue principal and premium and on any overdue installment of interest from the dates such amounts are due until they are paid or made available for payment]. Interest shall be computed on the basis of [a 360-day year of twelve 30-day months] [if another basis of calculating interest is to be different, insert a description of such method.]
| 2. | Method of Payment. |
The Company will pay interest on the Securities on each [ ] and [ ] to the Persons who are registered Holders of the relevant Securities at the close of business on the [ ] or [ ] next preceding the Interest Payment Date, even if such Securities are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 307 of the Indenture with respect to Defaulted Interest. The Securities will be payable as to principal, premium, if any, and interest at the office or agency of the Company maintained for such purpose in [ ], [if applicable, insert —; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the list provided by the Company to the Registrar and provided, further, that if this Security is a Global Security, payment may be made pursuant to the applicable procedures of the Depositary as permitted in said Indenture]. Such payment shall be in such coin or currency of [the United States of America] [insert other currency or currency unit, if applicable] as at the time of payment is legal tender for payment of public and private debts.
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| 3. | Paying Agent and Registrar. |
Initially, the Trustee under the Indenture will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.
| 4. | Indenture. |
This Security is one of a duly authorized issue of Securities of the Company issued and to be issued in one or more series under an Indenture, dated as of , (herein called the “Indenture”), between the Company and , as Trustee (herein called the “Trustee” which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code § 77aaa-77bbbb). The Securities are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Security conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
| 5. | Redemption. |
[If applicable, insert — The Securities of this series are subject to redemption upon not less than 30 days’ notice to the Holders, [if applicable, insert — (1) on in any year commencing with the year and ending with the year through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [if applicable, insert — on or after , ], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): if redeemed [if applicable insert — on or before , %, and if redeemed] during the 12-month period beginning of the years indicated,
| Year | Redemption Price | Year | Redemption Price |
and thereafter at a Redemption Price equal to % of the principal amount, together in the case of any such redemption [if applicable, insert — (whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
A-4
[If applicable, insert — The Securities of this series are subject to redemption upon not less than 30 days’ notice to the Holders, (1) on in any year commencing with the year and ending with the year through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert — on or after ], as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning of the years indicated,
| Year |
Redemption Price for Redemption Through Operation of the Sinking Fund |
Redemption Price for Redemption Otherwise than Through Operation of the Sinking Fund | ||
and thereafter at a Redemption Price equal to % of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Date referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert — The sinking fund for this series provides for the redemption on in each year beginning with the year and ending with the year of [if applicable, insert — not less than $ (“mandatory sinking fund”) and not more than] $ aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than through [mandatory] sinking fund payments may be credited against subsequent [if applicable, insert — mandatory] sinking fund payments otherwise required to be made [if applicable, insert — in the inverse order in which they become due].]
[If applicable, insert — The Securities are subject to redemption, as a whole at any time or in part from time to time, at the sole election of the Company, upon not less than 35 or more than 75 days’ notice to the Trustee at a Redemption Price equal to $ .]
[If applicable, insert — The Holder of this Security shall have the right to require the Company to pay this Security in full on , by giving the Company or the Registrar written notice of the exercise of such right not less than 30 or more than 60 days prior to such date.]
[If the Security is subject to redemption, insert — In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
A-5
[If applicable, insert — This Security is not subject to redemption prior to maturity.]
| 6. | Denominations, Transfer, Exchange. |
[If applicable, insert — The Securities of this series are issuable only in registered form without coupons in denominations of $ and any integral multiple thereof.] As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same. A Holder may register the transfer or exchange of the Security as provided in the Indenture and subject to certain limitations therein set forth. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture.
[If applicable, insert — The Securities of this series will be represented by one or more Global Securities registered in the name of , (the “Depositary”), or a nominee of the Depositary. So long as the Depositary, or its nominee, is the registered holder and owner of this Global Security, the Depositary or such nominee, as the case may be, will be considered the sole owner and holder of the Securities for all purposes under the Indenture. The Global Security may be transferred, in whole and not in part, only to the Depositary or another nominee of the Depositary. The Depositary will credit, on its book-entry registration and transfer system, the respective principal amounts of the Securities represented by such Global Security to the accounts of institutions that have accounts with the Depositary or its nominee (“participants”). Ownership of beneficial interests in a Global Security will be shown on, and the transfer of those ownership interests will be effected through, records maintained by the Depositary (with respect to participants’ interests) and such participants (with respect to the owners of beneficial interests in such Global Security).]
[If applicable, insert — The Securities represented by this Global Security are exchangeable for Securities in permanent form of like tenor as such Global Security in denominations of $1,000 and in any greater amount that is an integral multiple thereof if (i) the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for this Global Security or if at any time the Depositary ceases to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, (ii) the Company in its discretion at any time determines not to have all of the Securities of this series represented by the Global Security and notifies the Trustee thereof, or (iii) an Event of Default has occurred and is continuing with respect to the Securities. Any Security that is exchangeable pursuant to the preceding sentence is exchangeable only for Securities of this series.]
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
A-6
| 7. | Persons Deemed Owners. |
The registered Holder of a Security may be treated as its owner for all purposes.
| 8. | Amendment, Supplement and Waiver. |
Subject to certain exceptions, the Indenture and the Securities may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the then outstanding Securities of each series affected by such amendment or supplement. Without the consent of any Holder of a Securities of each series affected by such amendment or supplement, the Indenture and the Securities may be amended or supplemented to, among other things, (a) evidence the succession of another person to the Company or any Guarantor and the assumption of such successor to the covenants in the Indenture; (b) add to the covenants of the Company or Guarantors or to surrender any right or power conferred upon the Company or any such Guarantor; (c) add additional Events of Default with respect to any or all series of Securities; (d) pledge property to the Trustee as security for the Securities; (e) reflect the addition or release of any Guarantor in accordance with Article 14 of the Indenture; (f) revise the provisions of the Indenture with respect to Bearer Securities (provided that such action shall not materially and adversely affect the interests of any Holders of Securities); (g) change provisions of the Indenture, such change only effective when there is no Security Outstanding of any series created prior to such change which is entitled to benefit under such provision; (h) evidence acceptance of a successor Trustee pursuant to the requirements of Section 609 or Section 611(b) of the Indenture; (i) add to the conditions of Securities; (j) supplement any provisions to the extent necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Section 401 of the Indenture (provided that such action shall not materially and adversely affect the interests of any Holders of Securities); (k) revise the Indenture as necessary or desirable in accordance with any amendments to the Trust Indenture Act; (l) issue and establish the form and terms of any series of Securities with any terms permitted by the Trust Indenture Act; (m) conform any provisions of the Indenture or any Securities with the Description of Notes; (n) change any provision of the Indenture with respect to any series of Securities (provided that such action shall not materially and adversely affect the interests of any Holders of Securities); (o) change any provision of the Indenture (provided that such action shall not materially and adversely affect the interests of any Holders of Securities); and (p) cure any ambiguity or mistake.
| 9. | Defaults and Remedies. |
Events of Default include: (a) default for 30 days in the payment when due of interest on the Securities; (b) default in payment when due of principal of or premium, if any, on the Securities; (c) failure by the Company for 90 days to comply with certain other agreements in the Indenture or the Securities; and (d) certain events of bankruptcy or insolvency with respect to the Company or any of its Restricted Subsidiaries. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least [30]% in principal amount of the then outstanding Securities may declare all the Securities to be due and payable. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency involving the Company, all outstanding Securities will become due and payable without further action or notice. Holders may not enforce the Indenture or the Securities except as provided in the Indenture. Subject to certain limitations, Holders of a majority in principal amount of the then
A-7
outstanding Securities may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Securities notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest) if it determines that withholding notice is in their interest. The Holders of a majority in aggregate principal amount of the Securities then outstanding by notice to the Trustee may on behalf of the Holders of all of the Securities waive any past Default or Event of Default and its consequences under the Indenture except a Default or Event of Default in the payment of interest on, or the principal of, the Securities or a Default or Event of Default with respect to a covenant or provision of the Indenture that under Article 9 of the Indenture may not be amended without the consent of the Holder of each of the Outstanding Securities. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.
| 10. | Trustee Dealings with Company. |
The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.
| 11. | No Recourse against Others. |
A director, officer, employee, incorporator or stockholder, of the Company, as such, shall not have any liability for any obligations of the Company or the Guarantors under the Securities or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Securities.
| 12. | [If applicable, insert — Guarantees. |
The payment by the Company of the principal of and interest on the Security is fully and unconditionally guaranteed on a joint and several basis by each of the Guarantors on the terms set forth in the Indenture.]
| 13. | Authentication. |
This Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
| 14. | Abbreviations. |
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
A-8
| 15. | CUSIP Numbers. |
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Securities and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Securities or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:
Regions Bank
150 4th Avenue North, Suite 900
Nashville, Tennessee 37219
Attention: Corporate Trust Services
| 16. | GOVERNING LAW. |
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS SECURITY WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.
A-9
ASSIGNMENT FORM
To assign this Security, fill in the form below:
| (I) or (we) assign and transfer this Security to: |
| |
| (Insert assignee’s legal name) | ||
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint to transfer this Security on the books of the Company. The agent may substitute another to act for him.
Date:
| Your Signature: | ||
| (Sign exactly as your name appears on the face of this Security) |
| Signature Guarantee*: |
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
A-10
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY*
The following exchanges of a part of this Global Security for an interest in another Global Security or for a Definitive Security, or exchanges of a part of another Global Security or Definitive Security for an interest in this Global Security, have been made:
| Principal Amount of this Global |
Amount of decrease in Principal Amount of this Global Security |
Amount of increase in Principal Amount of this Global Security |
Signature of authorized officer of Trustee or Date of Exchange Security Custodian | |||
| * | This schedule should be included only if the Security is issued in global form. |
A-11
EXHIBIT B
[FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR CLEARSTREAM BANKING BY A BENEFICIAL OWNER OF SECURITIES, IN ORDER TO RECEIVE A DEFINITIVE BEARER SECURITY IN EXCHANGE FOR AN INTEREST IN A TEMPORARY GLOBAL SECURITY OR TO EXCHANGE AN INTEREST IN A TEMPORARY GLOBAL SECURITY FOR AN INTEREST IN A PERMANENT GLOBAL SECURITY]
COMMUNITY HEALTH SYSTEMS, INC.
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of ● (the “Indenture”) between Community Health Systems, Inc. (the “Company”) and Regions Bank, as Trustee. Terms used herein unless otherwise defined shall have the meanings ascribed to them in the Indenture.
This is to certify that as of the date hereof [and except as provided in the fourth paragraph hereof]*, $ principal amount of the above captioned Securities represented by a temporary Global Security (the “temporary Global Security”) held by you for our account is:
(i) beneficially owned by persons that are not United States persons (as defined below);
(ii) owned by United States person(s) that are (a) foreign branches of United States financial institutions (as defined in United States Treasury Regulation Section 1.165-12(c)(1)(v) (“financial institutions”)) purchasing for their own account or for resale, or (b) United States person(s) who acquired the beneficial interest in the temporary Global Security through foreign branches of United States financial institutions and who hold the beneficial interest in the temporary Global Security through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, for the benefit of the Company, that it will comply with the requirements of Section 165(j) (3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as amended, and the regulations thereunder); or
(iii) owned by financial institution(s) for the purpose of resale during the restricted period (as defined in United States Treasury Regulation Section 1.163-5(c)(2)(i)(D)(7)) and, in addition, financial institution(s) described in this clause (iii) (whether or not also described in clause (i) or (ii)), further certify that they have not acquired the beneficial interest in the temporary Global Security for the purpose of resale directly or indirectly to a United States person or to a person within the United States.
“United States person” means a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States and an estate or trust the income of which is subject to United States federal income taxation regardless of its source, and “United States” means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction (including the Commonwealth of Puerto Rico).
B-1
[This certificate excepts and does not relate to $ principal amount of the temporary Global Security held by you for our account as to which we are not able to provide a certificate in this form. We understand that exchange of such portion of the temporary Global Security for [definitive Bearer Securities] [interests in a permanent Global Security] cannot be made until we are able to provide a certificate in this form.]* We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the above-captioned Securities held by you for our account if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
We understand that this certificate is required in connection with certain tax laws and regulations in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.
| Dated: |
|
|
| [Name of Person Making Certification] | ||
| By: | ||
|
|
| * Delete if inappropriate |
B-2
EXHIBIT C
[FORM OF CERTIFICATE TO BE GIVEN TO THE APPROPRIATE TRUSTEE BY EUROCLEAR OR CLEARSTREAM BANKING REGARDING THE EXCHANGE OF A TEMPORARY GLOBAL SECURITY FOR DEFINITIVE SECURITIES OR FOR A PORTION OF A PERMANENT GLOBAL SECURITY]
COMMUNITY HEALTH SYSTEMS, INC.
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of ● (the “Indenture”) between Community Health Systems, Inc. (the “Company”) and Regions Bank, as Trustee. Terms used herein unless otherwise defined shall have the meanings ascribed to them in the Indenture.
We refer to that portion of the temporary Global Security in respect of the above-captioned Securities which is herewith submitted to be exchanged for [definitive Bearer Securities] [interests in a permanent Global Security] (the “Submitted Portion”) as provided in the Prospectus Supplement dated [insert date of Prospectus Supplement] in respect of such issue. This is to certify that (i) we have received in writing or by tested telex or electronically (in accordance with the requirements of United States Treasury Regulation Section 1.163-5(c)(2)(i)(D)(3)(ii)) a certificate or certificates with respect to the entire Submitted Portion, substantially in the form of Exhibit C to the Indenture, and (ii) the Submitted Portion includes no part of the temporary Global Security excepted in such certificates.
We further certify that as of the date hereof we have not received any notification from any of the persons giving such certificates to the effect that the statements made by them with respect to any part of the Submitted Portion are no longer true and cannot be relied on as of the date thereof.
We understand that this certificate is required in connection with certain tax laws and regulations in the United States of America. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings. Submitted Portion:
U.S. $
Date:
[Euroclear Bank S.A./N.V.] [Clearstream
Banking S.A.]*
| By: |
|
|
| * Delete if inappropriate. |
C-1
EXHIBIT D
[FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR CLEARSTREAM BANKING BY A BENEFICIAL OWNER OF SECURITIES, IN ORDER TO RECEIVE PAYMENT ON A TEMPORARY GLOBAL SECURITY]
COMMUNITY HEALTH SYSTEMS, INC.
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of ● (the “Indenture”) between Community Health Systems, Inc. (the “Company”) and Regions Bank, as Trustee. Terms used herein unless otherwise defined shall have the meanings ascribed to them in the Indenture.
This is to certify that as of the date hereof [and except as provided in the fourth paragraph hereof]*, $ principal amount of the above-captioned Securities represented by a temporary Global Security (the “temporary Global Security”) held by you for our account is:
(i) beneficially owned by persons that are not United States persons (as defined below);
(ii) owned by United States person(s) that are (a) foreign branches of United States financial institutions (as defined in United States Treasury Regulation Section 1.165-12(c)(1)(v) (“financial institutions”)) purchasing for their own account or for resale, or (b) United States person(s) who acquired the beneficial interest in the temporary Global Security through foreign branches of United States financial institutions and who hold the beneficial interest in the temporary Global Security through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, for the benefit of the Company, that it will comply with the requirements of Section 165(j) (3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as amended, and the regulations thereunder); or
(iii) owned by financial institution(s) for the purpose of resale during the restricted period (as defined in United States Treasury Regulation Section 1.163-5(c)(2)(i)(D)(7)) and, in addition, financial institution(s) described in this clause (iii) (whether or not also described in clause (i) or (ii)), further certify that they have not acquired the beneficial interest in the temporary Global Security for the purpose of resale directly or indirectly to a United States person or to a person within the United States.
“United States person” means a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States and an estate or trust the income of which is subject to United States federal income taxation regardless of its source, and “United States” means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction (including the Commonwealth of Puerto Rico).
D-1
[This certificate excepts and does not relate to $ principal amount of the temporary Global Security held by you for our account as to which we are not able to provide a certificate in this form. We understand that payments, if any, due with respect to such portion of the temporary Global Security cannot be made until we are able to provide a certificate in this form.]*
We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the above-captioned Securities held by you for our account if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
We understand that this certificate is required in connection with certain tax laws and regulations in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.
| Dated: |
|
|
| [Name of Person Making Certification] | ||
| By: | ||
|
|
| * Delete if inappropriate |
D-2
EXHIBIT E
[FORM OF CERTIFICATE TO BE GIVEN TO THE APPROPRIATE TRUSTEE BY EUROCLEAR OR CLEARSTREAM BANKING REGARDING PAYMENT ON A TEMPORARY GLOBAL SECURITY]
COMMUNITY HEALTH SYSTEMS, INC.
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of ● (the “Indenture”) between Community Health Systems, Inc. (the “Company”) and Regions Bank, as Trustee. Terms used herein unless otherwise defined shall have the meanings ascribed to them in the Indenture.
We refer to that portion of the temporary Global Security in respect of the above-captioned Securities for which we hereby request that you make payment to us of the amounts payable on the relevant payment date (the “Submitted Portion”) as provided in the Prospectus Supplement dated [insert date of Prospectus Supplement] in respect of such issue. This is to certify that (i) we have received in writing or by tested telex or electronically (in accordance with the requirements of United States Treasury Regulation Section 1.163- 5(c)(2)(i)(D)(3)(ii)) a certificate or certificates with respect to the entire Submitted Portion, substantially in the form of Exhibit E to the Indenture, and (ii) the Submitted Portion includes no part of the temporary Global Security excepted in such certificates.
We further certify that as of the date hereof we have not received any notification from any of the persons giving such certificates to the effect that the statements made by them with respect to any part of the Submitted Portion are no longer true and cannot be relied on as of the date thereof.
We understand that this certificate is required in connection with certain tax laws and regulations in the United States of America. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.
Submitted Portion:
U.S. $
Date:
| [Euroclear Bank S.A./N.V.] [Clearstream Banking S.A.]* | ||
| By: | ||
|
|
| * Delete if inappropriate. |
E-1
EXHIBIT F
[FORM OF NOTATION OF NOTE GUARANTEE]
For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture dated as of ● (the “Indenture”) among Community Health Systems, Inc. (the “Company”), the Guarantors party thereto and Regions Bank, as trustee (the “Trustee”), (a) the due and punctual payment of the principal of, premium, if any, and interest on, the [Securities], whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on overdue principal of and interest on the [Securities], if any, if lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of any [Securities] or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of [Securities] and to the Trustee pursuant to the Note Guarantee and the Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee. Each Holder of a [Security], by accepting the same, (a) agrees to and shall be bound by such provisions and (b) appoints the Trustee attorney-in-fact of such Holder for such purpose.
Capitalized terms used but not defined herein have the meanings given to them in the Indenture.
| [Name of Guarantor(s)] | ||
| By: | ||
| Name: | ||
| Title: | ||
F-1
Exhibit 4.2
COMMUNITY HEALTH SYSTEMS, INC.,
Issuer
REGIONS BANK,
Trustee
INDENTURE
Dated as of ●
Subordinated Debt Securities
CROSS-REFERENCE TABLE*
Reconciliation and tie showing the location in the Indenture dated as of ● of the provisions inserted pursuant to Sections 310 to 318(a), inclusive, of the Trust Indenture Act of 1939, as amended.
| Trust Indenture Act Section | Indenture Section | |||||
| Section 310 |
(a)(1) | 609 | ||||
| (a)(2) | 609 | |||||
| (a)(3) | Not Applicable | |||||
| (a)(4) | Not Applicable | |||||
| (a)(5) | 609 | |||||
| (b) | 608 and 610(d) | |||||
| (c) | Not Applicable | |||||
| Section 311 |
(a) | 613 | ||||
| (b) | 613 | |||||
| (c) | Not Applicable | |||||
| Section 312 |
(a) | 701 and 702(a) | ||||
| (b) | 702(b) | |||||
| (c) | 702(c) | |||||
| Section 313 |
(a) | 703(a) | ||||
| (b) | 703(b) | |||||
| (c) | 703(a) and 703(b) | |||||
| (d) | 703(a) | |||||
| Section 314 |
(a) | 704 | ||||
| (b) | Not Applicable | |||||
| (c) | 102 | |||||
| (c)(1) | 102 | |||||
| (c)(2) | 102 | |||||
| (c)(3) | Not Applicable | |||||
| (d) | Not Applicable | |||||
| (e) | 102 | |||||
| Section 315 |
(a) | 601(a) | ||||
| (b) | 602 and 703(a)(7) | |||||
| (c) | 601(b) | |||||
| (d) | 601(c) | |||||
| (d)(1) | 601(a)(1) | |||||
| (d)(2) | 601(c)(2) | |||||
| (d)(3) | 601(c)(3) | |||||
| (e) | 514 | |||||
| Section 316 |
(a)(1)(A) | 502 and 512 | ||||
| (a)(1)(B) | 513 | |||||
| (a)(2) | Not Applicable | |||||
| (b) | 508 | |||||
| Section 317 |
(a)(1) | 503 | ||||
| (a)(2) | 504 | |||||
| (b) | 1003 | |||||
| Section 318 |
(a) | 107 | ||||
| (b) | Not Applicable | |||||
| (c) | 107 | |||||
| * | NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. |
TABLE OF CONTENTS
| PARTIES | 1 | |||||
| RECITALS | 1 | |||||
| ARTICLE 1 Definitions and Other Provisions of General Application | 1 | |||||
| Section 101. | Definitions. |
1 | ||||
| Section 102. | Compliance Certificates and Opinions. |
12 | ||||
| Section 103. | Form of Documents Delivered to Trustee. |
13 | ||||
| Section 104. | Acts of Holders. |
13 | ||||
| Section 105. | Notices, Etc., to Trustee and the Company. |
15 | ||||
| Section 106. | Notice to Holders; Waiver. |
15 | ||||
| Section 107. | Conflict with Trust Indenture Act. |
16 | ||||
| Section 108. | Effect of Headings and Table of Contents. |
16 | ||||
| Section 109. | Successors and Assigns. |
16 | ||||
| Section 110. | Separability Clause. |
17 | ||||
| Section 111. | Benefits of Indenture. |
17 | ||||
| Section 112. | Governing Law. |
17 | ||||
| Section 113. | Non-Business Day. |
17 | ||||
| Section 114. | Immunity of Incorporators, Stockholders, Directors and Officers. |
17 | ||||
| Section 115. | Certain Matters Relating to Currencies. |
18 | ||||
| Section 116. | Language of Notices, Etc. |
18 | ||||
| ARTICLE 2 Security Forms | 18 | |||||
| Section 201. | Forms of Securities. |
18 | ||||
| Section 202. | Form of Trustee’s Certificate of Authentication. |
19 | ||||
| Section 203. | Securities in Global Form. |
19 | ||||
| Section 204. | CUSIP Numbers. |
20 | ||||
| ARTICLE 3 The Securities | 20 | |||||
| Section 301. | Title; Payment and Terms. |
20 | ||||
| Section 302. | Denominations and Currencies. |
24 | ||||
| Section 303. | Execution, Authentication, Delivery and Dating. |
24 | ||||
| Section 304. | Temporary Securities and Exchange of Securities. |
26 | ||||
| Section 305. | Registration, Registration of Transfer and Exchange. |
29 | ||||
| Section 306. | Mutilated, Destroyed, Lost and Stolen Securities and Coupons. |
32 | ||||
| Section 307. | Payment of Interest; Interest Rights Preserved. |
34 | ||||
| Section 308. | Persons Deemed Owners. |
35 | ||||
| Section 309. | Cancellation. |
36 | ||||
| Section 310. | Computation of Interest. |
36 | ||||
| Section 311. | Currency and Manner of Payments in Respect of Securities. |
37 | ||||
| Section 312. | Appointment and Resignation of Currency Determination Agent. |
39 | ||||
| ARTICLE 4 Satisfaction and Discharge | 40 | |||||
| Section 401. | Option to Effect Legal Defeasance or Covenant Defeasance. |
40 | ||||
| Section 402. | Legal Defeasance and Discharge. |
40 | ||||
i
| Section 403. | Covenant Defeasance. |
41 | ||||
| Section 404. | Conditions to Legal or Covenant Defeasance. |
41 | ||||
| Section 405. | Satisfaction and Discharge of Indenture. |
42 | ||||
| Section 406. | Survival of Certain Obligations. |
43 | ||||
| Section 407. | Acknowledgment of Discharge by Trustee. |
43 | ||||
| Section 408. | Application of Trust Moneys. |
44 | ||||
| Section 409. | Repayment to the Company; Unclaimed Money. |
44 | ||||
| Section 410. | Reinstatement. |
45 | ||||
| ARTICLE 5 Remedies | 45 | |||||
| Section 501. | Events of Default. |
45 | ||||
| Section 502. | Acceleration of Maturity; Rescission and Annulment. |
46 | ||||
| Section 503. | Collection of Indebtedness and Suits for Enforcement by Trustee. |
48 | ||||
| Section 504. | Trustee May File Proofs of Claim. |
48 | ||||
| Section 505. | Trustee May Enforce Claims Without Possession of Securities or Coupons. |
49 | ||||
| Section 506. | Application of Money Collected. |
50 | ||||
| Section 507. | Limitation on Suits. |
50 | ||||
| Section 508. | Unconditional Right of Holders to Receive Principal (and Premium, if any) and Interest, if any. |
51 | ||||
| Section 509. | Restoration of Rights and Remedies. |
51 | ||||
| Section 510. | Rights and Remedies Cumulative. |
51 | ||||
| Section 511. | Delay or Omission Not Waiver. |
51 | ||||
| Section 512. | Control by Holders. |
52 | ||||
| Section 513. | Waiver of Past Defaults. |
52 | ||||
| Section 514. | Undertaking for Costs. |
52 | ||||
| Section 515. | Waiver of Stay or Extension Laws. |
53 | ||||
| Section 516. | Judgment Currency. |
53 | ||||
| ARTICLE 6 The Trustee | 54 | |||||
| Section 601. | Certain Duties and Responsibilities. |
54 | ||||
| Section 602. | Notice of Defaults. |
55 | ||||
| Section 603. | Certain Rights of Trustee. |
55 | ||||
| Section 604. | Not Responsible for Recitals or Issuance of Securities. |
56 | ||||
| Section 605. | May Hold Securities. |
57 | ||||
| Section 606. | Money Held in Trust. |
57 | ||||
| Section 607. | Compensation and Reimbursement. |
57 | ||||
| Section 608. | Disqualification; Conflicting Interests. |
58 | ||||
| Section 609. | Corporate Trustee Required; Eligibility. |
58 | ||||
| Section 610. | Resignation and Removal; Appointment of Successor. |
58 | ||||
| Section 611. | Acceptance of Appointment by Successor. |
60 | ||||
| Section 612. | Merger, Conversion, Consolidation or Succession to Business. |
61 | ||||
| Section 613. | Preferential Collection of Claims Against Company. |
61 | ||||
| Section 614. | Authenticating Agents. |
61 | ||||
| ARTICLE 7 Holders’ Lists and Reports by Trustee and the Company | 63 | |||||
| Section 701. | Company to Furnish Trustee Names and Addresses of Holders. |
63 | ||||
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| Section 702. | Preservation of Information; Communications to Holders. |
63 | ||||
| Section 703. | Reports by Trustee. |
64 | ||||
| Section 704. | Reports by Company. |
65 | ||||
| ARTICLE 8 Consolidation, Merger, Conveyance or Transfer | 65 | |||||
| Section 801. | Company May Consolidate, Etc., Only on Certain Terms. |
65 | ||||
| Section 802. | Successor Person Substituted. |
66 | ||||
| ARTICLE 9 Supplemental Indentures | 66 | |||||
| Section 901. | Section 901. Supplemental Indentures without Consent of Holders. |
66 | ||||
| Section 902. | Supplemental Indentures with Consent of Holders. |
69 | ||||
| Section 903. | Execution of Supplemental Indentures. |
70 | ||||
| Section 904. | Effect of Supplemental Indentures. |
70 | ||||
| Section 905. | Conformity with Trust Indenture Act. |
70 | ||||
| Section 906. | Reference in Securities to Supplemental Indentures. |
70 | ||||
| ARTICLE 10 Covenants | 71 | |||||
| Section 1001. | Payment of Principal (and Premium, if any) and Interest, if any. |
71 | ||||
| Section 1002. | Maintenance of Office or Agency. |
71 | ||||
| Section 1003. | Money for Securities Payments to be Held in Trust. |
73 | ||||
| Section 1004. | Statements as to Compliance. |
74 | ||||
| Section 1005. | Corporate Existence. |
74 | ||||
| Section 1006. | Waiver of Certain Covenants. |
74 | ||||
| Section 1007. | Calculation of Original Issue Discount. |
74 | ||||
| Section 1008. | Statement by Officers as to Default. |
75 | ||||
| ARTICLE 11 Redemption of Securities | 75 | |||||
| Section 1101. | Applicability of this Article. |
75 | ||||
| Section 1102. | Election to Redeem; Notice to Trustee. |
75 | ||||
| Section 1103. | Selection by Trustee of Securities to be Redeemed. |
75 | ||||
| Section 1104. | Notice of Redemption. |
76 | ||||
| Section 1105. | Deposit of Redemption Price. |
77 | ||||
| Section 1106. | Securities Payable on Redemption Date. |
77 | ||||
| Section 1107. | Securities Redeemed in Part. |
78 | ||||
| ARTICLE 12 Sinking Funds | 78 | |||||
| Section 1201. | Applicability of this Article. |
78 | ||||
| Section 1202. | Satisfaction of Sinking Fund Payments with Securities. |
79 | ||||
| Section 1203. | Redemption of Securities for Sinking Fund. |
79 | ||||
| ARTICLE 13 Meetings of Holders of Securities | 79 | |||||
| Section 1301. | Purposes for which Meetings May be Called. |
79 | ||||
| Section 1302. | Call, Notice and Place of Meetings. |
80 | ||||
| Section 1303. | Persons Entitled to Vote at Meetings. |
80 | ||||
| Section 1304. | Quorum; Action. |
80 | ||||
| Section 1305. | Determination of Voting Rights; Conduct and Adjournment of Meetings. |
81 | ||||
| Section 1306. | Counting Votes and Recording Action of Meetings. |
82 | ||||
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| ARTICLE 14 Note Guarantees | 82 | |||||
| Section 1401. | Guarantee. |
82 | ||||
| Section 1402. | Limitation on Guarantor Liability. |
84 | ||||
| Section 1403. | Execution and Delivery of Note Guarantee. |
84 | ||||
| Section 1404. | Guarantors May Consolidate, etc., on Certain Terms. |
84 | ||||
| Section 1405. | Releases. |
85 | ||||
| ARTICLE 15 Subordination of Securities | 86 | |||||
| Section 1501. | Agreement to Subordinate. |
86 | ||||
| Section 1502. | Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Securities. |
86 | ||||
| Section 1503. | No Payment on Securities in Certain Circumstances. |
88 | ||||
| Section 1504. | Payments on Securities Permitted. |
89 | ||||
| Section 1505. | Authorization of Holders to Trustee to Effect Subordination. |
89 | ||||
| Section 1506. | Notices to Trustee. |
89 | ||||
| Section 1507. | Trustee as Holder of Senior Indebtedness. |
90 | ||||
| Section 1508. | Modifications of Terms of Senior Indebtedness. |
90 | ||||
| Section 1509. | Reliance on Judicial Order or Certificate of Liquidating Agent. |
91 | ||||
EXHIBITS
| EXHIBIT A. | Form of Securities. | |
| EXHIBIT B. | Form of Certificate To Be Delivered to Euroclear or Clearstream Banking by a Beneficial Owner of Securities in Order to Receive a Definitive Bearer Security in Exchange for an Interest in a Temporary Global Security or to Exchange an Interest in a Temporary Global Security for an Interest in a Permanent Global Security. | |
| EXHIBIT C. | Form of Certificate To Be Given to the Appropriate Trustee by Euroclear or Clearstream Banking Regarding the Exchange of a Temporary Global Security for Definitive Securities or for a Portion of a Permanent Global Security. | |
| EXHIBIT D. | Form of Certificate To Be Delivered to Euroclear or Clearstream Banking by a Beneficial Owner of Securities in Order to Receive Payment on a Temporary Global Security. | |
| EXHIBIT E. | Form of Certificate To Be Given to the Appropriate Trustee by Euroclear or Clearstream Banking Regarding Payment on a Temporary Global Security. | |
| EXHIBIT F. | Form of Notation of Note Guarantee | |
iv
INDENTURE dated as of ●, between COMMUNITY HEALTH SYSTEMS, INC., a corporation duly incorporated and existing under the laws of Delaware and having its principal executive office at 4000 Meridian Boulevard, Franklin, Tennessee 37067 (hereinafter called “the Company”) and REGIONS BANK, an Alabama banking corporation, as Trustee (hereinafter called the “Trustee”).
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its lawful purposes securities (hereinafter called the “Securities”) evidencing its subordinated indebtedness and has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of the Securities, unlimited as to principal amount, to have such titles, to bear such rates of interest, to mature at such time or times and to have such other provisions as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done, and the Company proposes to do all things necessary to make the Securities, when executed by the Company and authenticated and delivered by the Trustee hereunder and duly issued by the Company, the valid obligations of the Company as hereinafter provided.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or series thereof, as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 101. Definitions.
For all purposes of this Indenture and all Securities issued hereunder, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States, and the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States at the date or time of such computation; and
(4) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Three and Article Six, are defined in those Articles.
“Act”, when used with respect to any Holder, has the meaning specified in Section 104.
“Affiliate” means, with respect to a specified Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control”, when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Authenticating Agent” means any Person authorized to authenticate and deliver Securities on behalf of the Trustee for the Securities of any series pursuant to Section 614.
“Authorized Newspaper” means a newspaper customarily published at least once a day for at least five days in each calendar week and of general circulation in the City of New York, in London and, to the extent the Securities are listed on the Luxembourg Stock Exchange and the Luxembourg Stock Exchange shall so require, in Luxembourg or, if it shall be impracticable in the opinion of the Company to make such publication, in another capital city in Western Europe. Such publication (which may be in different newspapers) is expected to be made in the Eastern edition of The Wall Street Journal, in the London edition of the Financial Times and, if applicable, in the Luxemburger Wort.
“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
“Bearer Security” means any Security established pursuant to Section 201 which is payable to bearer.
“Board of Directors” means:
(1) with respect to the Company, either the board of directors or any duly authorized committee of that board or any director or directors and/or officer or officers to whom that board or committee shall have duly delegated its authority, of the Company;
(2) with respect to any other corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;
(3) with respect to a partnership, the board of directors of the general partner of the partnership;
(4) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and
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(5) with respect to any other Person, the board or committee of such Person serving a similar function.
“Board Resolution” means, when used with reference to any Person, (1) a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person, as the case may be, to have been duly adopted by its Board of Directors or the managing member(s) or the managing partner(s) of such Person and to be in full force and effect on the date of such certification, or (2) a certificate signed by the director or directors or officer or officers or managing member(s) or managing partners(s) to whom the Board of Directors shall have duly delegated its authority, and delivered to the Trustee for the Securities of any series.
“Business Day” means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which commercial banks are authorized or required by law, regulation or executive order to close in The City of New York or in the city in which the Corporate Trust Office is located; provided, however, that, with respect to Securities not denominated in Dollars, the day is also not a day on which commercial banks are authorized or required by law, regulation or executive order to close in the Principal Financial Center of the country issuing the Foreign Currency or currency unit or, if the Foreign Currency or currency unit is euro, the day is also a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) System is open; provided, further, that, with respect to LIBOR Securities, the day is also a London Business Day.
“Capital Stock” means, with respect to any Person, shares, interests, rights to purchase, warrants, options, participation or other equivalents of or interests in (however designated) equity of such Person, including any preferred stock, but excluding any debt securities convertible into such equity.
“Certificate of a Firm of Independent Public Accountants” means a certificate signed by any firm of independent public accountants of recognized standing selected by the Company. The term “independent” when used with respect to any specified firm of public accountants means such a firm which (1) is in fact independent, (2) does not have any direct financial interest or any material indirect financial interest in the Company or in any other obligor upon the Securities of any series or in any affiliate of the Company or of such other obligor, and (3) is not connected with the Company or such other obligor or any affiliate of the Company or of such other obligor, as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions, but such firm may be the regular auditors employed by the Company. Whenever it is herein provided that any Certificate of a Firm of Independent Public Accountants shall be furnished to the Trustee for Securities of any series, such Certificate shall state that the signer has read this definition and that the signer is independent within the meaning hereof.
“Code” means the Internal Revenue Code of 1986, as amended, and the regulations thereunder.
“Clearstream Banking” means Clearstream Banking S.A. or its successor.
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“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on such date.
“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor corporation.
“Company Request” and “Company Order” mean a written request or order signed in the name of the Company, as the case may be by (1) the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company, as the case may be, or (2) by any two Persons designated in a Company Order previously delivered to the Trustee for Securities of any series by any two of the foregoing officers and delivered to the Trustee for Securities of any series.
“Component Currency” has the meaning specified in Section 311(e).
“Conversion Event” means the unavailability of any Foreign Currency or currency unit due to the imposition of exchange controls or other circumstances beyond the Company’s control.
“Corporate Trust Office” means the office of the Trustee for Securities of any series at which at any particular time its corporate trust business shall be principally administered, which office of Regions Bank, at the date of the execution of this Indenture, is located at 150 4th Avenue North, Suite 900, Nashville, Tennessee 37219, Attention: Corporate Trust Services, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
“corporation” includes corporations, limited liability companies, associations, companies and business trusts.
“coupon” means any interest coupon appertaining to a Bearer Security.
“Credit Agreement” means the Third Amended and Restated Credit Agreement, dated as of July 25, 2007, as amended and restated as of November 5, 2010, February 2, 2012 and January 27, 2014, by and among the CHS/Community Health Systems, Inc., as borrower, the Company, the lender parties from time to time party thereto and Credit Suisse AG, as administrative agent and as collateral agent, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, as the same heretofore may have been or hereafter may be further amended (including, without limitation, as to the principal amount), modified, renewed, refunded, replaced or refinanced from time to time (whether or not with the original agents or lenders and whether or not contemplated under the original agreement relating thereto).
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“Currency Determination Agent” means, with respect to Securities of any series, unless otherwise specified in the Securities of any series, a New York Clearing House bank designated pursuant to Section 301 or Section 312.
“Defaulted Interest” has the meaning specified in Section 307.
“Depositary” means, with respect to the Securities of any series issuable or issued in the form of a Global Security, the Person designated as Depositary by the Company pursuant to Section 301 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as used with respect to the Securities of any such series shall mean the Depositary with respect to the Securities of that series.
“Dollars” and the sign “$” mean the currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
“Election Date” has the meaning specified in Section 311(e).
“Euroclear” means Euroclear Bank S.A./N.V. or its successor.
“Event of Default” has the meaning specified in Section 501.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, as in force at the date as of which this Indenture is executed; provided, however, that in the event the Securities Exchange Act of 1934 is amended after such date, “Exchange Act” means, to the extent required by any such amendment, the Securities Exchange Act of 1934 as so amended.
“Exchange Date” has the meaning specified in Section 304.
“Foreign Currency” means a currency issued and actively maintained as a country’s recognized unit of domestic exchange by the government of any country other than the United States or by any recognized confederation or association of such governments, and such term shall include, without limitation, the euro.
“Global Exchange Agent” has the meaning specified in Section 304.
“Global Securities” means Securities in global form.
“Government Obligations” means securities which are (i) direct obligations of the government which issued the currency in which the Securities of a particular series are payable (except as provided in Sections 311(b) and 311(d), in which case with respect to Securities for which an election has occurred pursuant to Section 311(b), or a Conversion Event has occurred as provided in Section 311(d), such obligations shall be issued in the currency or currency unit in which such Securities are payable as a result of such election or Conversion Event) or (ii) obligations of a Person controlled or supervised by or acting as an agency or instrumentality of the government which issued the currency in which the Securities of such series are payable (except as provided in Sections 311(b) and 311(d), in which case with respect to Securities for
- 5 -
which an election has occurred pursuant to Section 311(b), or a Conversion Event has occurred as provided in Section 311(d)), such obligations shall be issued in the currency or currency unit in which such Securities are payable as a result of such election or Conversion Event), the payment of which is unconditionally guaranteed by such government, which, in either case, are full faith and credit obligations of such government payable in such currency and are not callable or redeemable at the option of the issuer thereof.
“Guarantors” means any Subsidiary of the Company and any other Affiliate of the Company who specified in a Board Resolution of the Company establishing a series of Securities pursuant to Section 301 hereof, for the purpose of providing a Note Guarantee of Securities pursuant to this Indenture until (a) a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Guarantors” shall mean such successor Person or (b) such Person shall have been released from its Note Guarantee pursuant to the provisions of this Indenture.
“Holder” means, when used with respect to any Security, in the case of a Registered Security, the Person in whose name a Security is registered in the Security Register, and in the case of a Bearer Security, the bearer thereof and, when used with respect to any coupon, means any bearer thereof.
“Identifying Numbers” has the meaning specified in Section 204.
“Incur” means issue, create, assume, guarantee, incur or otherwise become liable for; and the terms “Incurred” and “Incurrence” have meanings correlative to the foregoing.
“Indenture” means this instrument as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of a particular series of Securities established as contemplated by Section 301.
“Indexed Security” means any Security as to which the amount of payments of principal (and premium, if any) and/or interest, if any, due thereon is determined with reference to the rate of exchange between the currency or currency unit in which the Security is denominated and any other specified currency or currency unit, to the relationship between two or more currencies or currency units, to the price of one or more specified securities or commodities, to one or more securities or commodities exchange indices or other indices or by other similar methods or formulas, all as specified in accordance with Section 301.
“interest” means, when used with respect to an OID Security which by its terms bears interest only after Maturity, interest payable after Maturity.
“Interest Payment Date” means, when used with respect to any Security, the Stated Maturity of an installment of interest on such Security.
“Issue Date” means the date on which the Securities of a particular series are originally issued under this Indenture.
“Judgment Date” has the meaning specified in Section 516.
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“LIBOR” means, with respect to any series of Securities, the rate specified as LIBOR for such Securities in accordance with Section 301.
“LIBOR Currency” means the currency specified pursuant to Section 301 as to which LIBOR will be calculated or, if no currency is specified pursuant to Section 301, Dollars.
“LIBOR Security” means any Security which bears interest at a floating rate calculated with reference to LIBOR.
“London Business Day” means, with respect to any LIBOR Security, a day on which commercial banks are open for business, including dealings in the LIBOR Currency, in London.
“Luxembourg Stock Exchange” means, unless specified with respect to any particular series of Securities, the Luxembourg Stock Exchange.
“Market Exchange Rate” means, with respect to any Foreign Currency or currency unit on any date, unless otherwise specified in accordance with Section 301, the noon buying rate in The City of New York for cable transfers in such Foreign Currency or currency unit as certified for customs purposes by the Federal Reserve Bank of New York for such Foreign Currency or currency unit.
“Maturity” means, when used with respect to any Security, the date on which the principal (or, if the context so requires, in the case of an OID Security, a lesser amount or, in the case of an Indexed Security, an amount determined in accordance with the specified terms of that Security) of that Security becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, request for redemption, repayment at the option of the holder, pursuant to any sinking fund or otherwise.
“Note Guarantee” has the meaning stated in Section 1401.
“Notice of Default” has the meaning specified in Section 501(3).
“Officers’ Certificate” means, when used with reference to the Company, a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the Chief Executive Officer, the President or a Vice President (any reference herein to a Vice President of the Company, as the case may be, shall be deemed to include any Vice President of the Company, as the case may be, whether or not designated by a number or a word or words added before or after the title “Vice President”), and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company, as the case may be, and delivered to the Trustee for the Securities of any series.
“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel to the Company or any Subsidiary of the Company.
“OID Security” means a Security which provides for an amount (excluding any amounts attributable to accrued but unpaid interest thereon) less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.
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“Outstanding” means, when used with respect to Securities, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee for such Securities or delivered to such Trustee for cancellation;
(2) Securities or portions thereof for whose payment or redemption money in the necessary amount and in the required currency or currency unit has been theretofore deposited with the Trustee for such Securities or any Paying Agent (other than the Company or any Guarantor (if any) or other obligor upon the Securities) in trust or set aside and segregated in trust by the Company or any Guarantor (if any) or other obligor upon the Securities (if the Company or any Guarantor (if any) or other obligor upon the Securities shall act as its own Paying Agent) for the Holders of such Securities; provided, however, that, if such Securities or portions thereof are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture, or provision therefor satisfactory to such Trustee has been made; and
(3) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented proof satisfactory to the Trustee for such Securities that any such Securities are held by a bona fide holder in due course;
provided, however, that in determining whether the Holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, (a) Securities owned by the Company, the Guarantors (if any) or any other obligor upon the Securities or any Affiliate of the Company, the Guarantors (if any) or such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee for such Securities shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of such Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of such Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company, the Guarantors (if any) or any other obligor upon the Securities or any Affiliate of the Company, the Guarantors (if any) or of such other obligor, (b) the principal amount of an OID Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration pursuant to Section 502 and (c) the principal amount of a Security denominated in a Foreign Currency or currency unit that shall be deemed to be outstanding for such purposes shall be determined in accordance with Section 115.
“Paying Agent” means Regions Bank, or any other Person authorized by the Company to pay the principal of (and premium, if any) or interest, if any, on any Securities of any series on behalf of the Company.
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“Person” means any individual, firm, corporation, partnership, association, joint venture, tribunal, limited liability company, trust, government or political subdivision or agency or instrumentality thereof, or any other entity or organization.
“Place of Payment” means, when used with respect to the Securities of any particular series, the place or places where the principal of (and premium, if any) and interest, if any, on the Securities of that series are payable, as contemplated by Section 301 and 1002.
“Predecessor Security” means, with respect to any particular Security, every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security, and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a mutilated, destroyed, lost or stolen coupon appertains shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Security or the Security to which the mutilated, destroyed, lost or stolen coupon appertains, as the case may be.
“Principal Financial Center” means, unless otherwise specified in accordance with Section 301:
(1) the capital city of the country issuing the Foreign Currency or currency unit, except that with respect to Dollars, Australian dollars, Canadian dollars, South African rand and Swiss francs, the “Principal Financial Center” will be The City of New York, Sydney and Melbourne, Toronto, Johannesburg and Zurich, respectively, and with respect to Euros, the “Principal Financial Center” will be London; or
(2) the capital city of the country to which the LIBOR Currency relates, except that with respect to Dollars, Canadian dollars, South African rand and Swiss francs, the “Principal Financial Center” will be The City of New York, Toronto, Johannesburg and Zurich, respectively, and with respect to Euros, the “Principal Financial Center” will be London.
“Property” means any asset, revenue or any other property, including Capital Stock, whether tangible or intangible, real or personal, including, without limitation, any right to receive income.
“Redemption Date” means, when used with respect to any Security to be redeemed in whole or in part, the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price” means, when used with respect to any Security to be redeemed, the price at which it is to be redeemed pursuant to the terms of this Indenture or in any Security issued hereunder.
“Registered Security” means any Security established pursuant to this Indenture which is registered in the Security Register.
“Regular Record Date” means, with respect to the interest payable on any Interest Payment Date on the Registered Securities of any series, the date, if any, specified for that purpose as contemplated by Section 301 whether or not a Business Day.
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“Responsible Officer” means, when used with respect to the Trustee for any series of Securities, (i) any vice president, assistant vice president, treasurer, assistant treasurer or any trust officer of the Trustee who shall have direct responsibility for the administration of the trust created by this Indenture or (ii) any other officer of the Corporate Trust Department of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject and who is charged with the administration of this Indenture. “Securities” means securities evidencing indebtedness of the Company authenticated and delivered under this Indenture. “Security Register” and “Security Registrar” have the respective meanings specified in Section 305.
“Senior Indebtedness” of the Company or a Guarantor, as the case may be, means, with respect to the Securities of any series and any applicable Note Guarantee thereof (except as otherwise specified as contemplated by Section 301 hereof):
(1) all obligations of the Company or any Guarantor, as the case may be, related to the Credit Agreement, whether for principal, premium, if any, interest, including interest accruing after the filing of, or which would have accrued but for the filing of, a petition by or against the Company or such Guarantor under applicable bankruptcy laws, whether or not such interest is lawfully allowed as a claim after such filing, and all other amounts payable in connection therewith, including, without limitation, any fees, premiums, penalties, expenses, reimbursements, indemnities, damages and other liabilities; and
(2) the principal of, premium, if any, and interest on all other indebtedness of the Company or any Guarantor, as the case may be, other than the Securities, in each case whether outstanding on the date of this Indenture or thereafter created, incurred or assumed, unless, in the case of any particular indebtedness, the instrument creating or evidencing the indebtedness expressly provides that such indebtedness shall not be senior in right of payment to the Securities.
Notwithstanding the foregoing, “Senior Indebtedness” does not include:
(1) indebtedness evidenced by the Securities and the Note Guarantees;
(2) indebtedness of the Company or any applicable Guarantor that is expressly subordinated in right of payment to any Senior Indebtedness of the Company or such Guarantor or the Securities or the applicable Note Guarantee;
(3) indebtedness of the Company or any applicable Guarantor that by operation of law is subordinate to any general unsecured obligations of the Company or such Guarantor;
(4) indebtedness of the Company or any applicable Guarantor to the extent incurred in violation of any covenant prohibiting the incurrence of indebtedness applicable to the Securities of such series or the Note Guarantee thereof;
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(5) any liability for federal, state or local taxes or other taxes, owed or owing by the Company or any applicable Guarantor;
(6) accounts payable or other liabilities owed or owing by the Company or any applicable Guarantor to trade creditors, including guarantees thereof or instruments evidencing such liabilities;
(7) amounts owed by the Company or any applicable Guarantor for compensation to employees or for services rendered to the Company or such Guarantor;
(8) indebtedness of the Company or any applicable Guarantor to any Subsidiary or any other Affiliate of the Company or such Guarantor
(9) Capital Stock of the Company or any applicable Guarantor;
(10) indebtedness which when incurred and without respect to any election under Section 1111(b) of Title 11 of the U.S. Code is without recourse to the Company or any Restricted Subsidiary; and
(11) other indebtedness identified for any series of Securities pursuant to Section 301 hereof.
“series” of Securities means all Securities denoted as part of the same series authorized by or pursuant to a particular Board Resolution.
“Special Record Date” means, with respect to the payment of any Defaulted Interest on the Registered Securities of any series, a date fixed by the Trustee for such series pursuant to Section 307.
“Stated Maturity” means, when used with respect to any Security or any installment of principal thereof or interest thereon, the date specified in such Security or a coupon representing such installment of interest as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of capital stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person, (ii) such Person and one or more Subsidiaries of such Person or (iii) one or more Subsidiaries of such Person.
“Substitute Date” has the meaning specified in Section 516.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, as in force at the date as of which this Indenture was executed; provided, however, that in the event the Trust Indenture Act is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
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“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument and, subject to the provisions of Article Six hereof, shall also include its successors and assigns as Trustee hereunder. If there shall be at one time more than one Trustee hereunder, “Trustee” shall mean each such Trustee and shall apply to each such Trustee only with respect to those series of Securities with respect to which it is serving as Trustee.
“United States” means, unless otherwise specified with respect to Securities of any series, the United States of America (including the states and the District of Columbia), its territories, its possessions (which include, at the date of this Indenture, Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands) and other areas subject to its jurisdiction.
“Yield to Maturity” means, when used with respect to any OID Security, the yield to maturity, if any, set forth on the face thereof.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee for any series of Securities to take any action under any provision of this Indenture or any supplement hereto, the Company shall furnish to such Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with, and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate (other than certificates provided pursuant to Section 1004) or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
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Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, or a certificate or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the opinion, certificate or representations with respect to matters upon which his certificate or opinion is based are erroneous.
Any such Opinion of Counsel or certificate or representations may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing. If Securities of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of such series may, alternatively, be embodied in and evidenced by the record of Holders of Securities of such series voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly called and held in accordance with the provisions of Article Thirteen, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee for the appropriate series of Securities and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee for the appropriate series of Securities and the Company and any agent of such Trustee or the Company, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 1306.
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The Company may at its discretion set a record date for purposes of determining the identity of Holders of Registered Securities entitled to vote or consent to any action by vote or consent authorized or permitted under this Indenture, but the Company shall have no obligation to do so. If not set by the Company prior to the first solicitation of Holders of Registered Securities of a particular series made by any Person in respect of any such action, or, in the case of any such vote, prior to such vote, the record date for any such action or vote shall be 30 days prior to the first solicitation of such vote or consent. Upon the fixing of such a record date, those persons who were Holders of Registered Securities at such record date (or their duly designated proxies), and only those persons, shall be entitled with respect to such Registered Securities to take such action by vote or consent or to revoke any vote or consent previously given, whether or not such persons continue to be Holders after such record date.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by an officer of a corporation or association or a member of a partnership, or an official of a public or governmental body, on behalf of such corporation, association, partnership or public or governmental body or by a fiduciary, such certificate or affidavit shall also constitute sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee for the appropriate series of Securities deems reasonably sufficient.
(d) The principal amount and serial numbers of Registered Securities held by any Person, and the date of holding the same, shall be proved by the Security Register.
(e) The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may be proved by the production of such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary, wherever situated, if such certificate shall be deemed by the Trustee for such Securities to be satisfactory, showing that at the date therein mentioned such Person had on deposit with such depositary, or exhibited to it, the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by such Trustee to be satisfactory. The Trustee for such Securities and the Company may assume that such ownership of any Bearer Security continues until (1) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, (2) such Bearer Security is produced to such Trustee by some other Person, (3) such Bearer Security is surrendered in exchange for a Registered Security, or (4) such Bearer Security is no longer Outstanding. The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may also be proved in any other manner which the Company and the Trustee for such Securities deem sufficient.
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(f) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee for such Securities, the Security Registrar, any Paying Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
(g) For purposes of this Indenture, any action by the Holders which may be taken in writing may be taken by electronic means or as otherwise reasonably acceptable to the Trustee for the appropriate series of Securities.
Section 105. Notices, Etc., to Trustee and the Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other documents provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee for a series of Securities by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with such Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration, Re: Community Health Systems, Inc., or if sent by facsimile transmission, to a facsimile number provided by the Trustee, with a copy mailed, first class postage prepaid to the Trustee addressed to it as provided above, or
(2) the Company or any of the Guarantors (if any) by such Trustee or by any Holder shall be sufficient for every purpose hereunder (except as provided in paragraph (3) of Section 501) if furnished in writing and mailed, first class postage prepaid, addressed in the case of the Company to it, to the attention of the General Counsel, at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to such Trustee by the Company, or if sent by facsimile transmission, to a facsimile number provided to the Trustee by the Company, with a copy mailed, first class postage prepaid, to the Company, and the Guarantors (if any), as the case may be, addressed to it or them as provided above.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, (1) such notice shall be sufficiently given (unless otherwise herein expressly provided) to Holders of Registered Securities if in writing and mailed, first class postage prepaid, to each Holder affected by such event, at his or her address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice or as otherwise permitted by the Trustee; and (2) such notice shall be sufficiently given (unless otherwise herein expressly provided) to Holders of Bearer Securities if published in (a) an Authorized Newspaper on a Business Day or (b) an electronic medium easily accessible by the Holders as may be specified by the Company to such Holders, such publication to be not earlier than the earliest date, and not later than the latest date, prescribed herein for the giving of such notice. Any such notice by publication shall be deemed to have been given on the date of such publication or, if published more than once, on the date of the first publication.
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In any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Registered Security shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein. Any notice mailed in the manner prescribed by this Indenture shall be conclusively deemed to have been given whether or not received by any particular Holder. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders of Registered Securities by mail, then such notification as shall be made with the reasonable approval of the Trustee for such Securities shall constitute a sufficient notification for every purpose hereunder.
In case by reason of the suspension of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be made with the reasonable approval of the Trustee for such Securities shall constitute sufficient notice to such Holders for every purpose hereunder. Neither the failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any notice to Holders of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee for such Securities, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture Act through the operation of Section 318(c) thereof, such imposed duties shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the provision shall be deemed to apply to this Indenture as so modified or excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
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Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities or coupons shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities or in any coupons appertaining thereto, expressed or implied, shall give to any Person, other than the parties hereto, any Paying Agent, any Security Registrar, an Authenticating Agent and their successors hereunder and the Holders of Securities or coupons, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 113. Non-Business Day.
Unless otherwise stated with respect to Securities of any series, in any case where any Interest Payment Date, Redemption Date or Stated Maturity of a Security of any particular series shall not be a Business Day at any Place of Payment with respect to Securities of that series, then (notwithstanding any other provision of this Indenture or of the Securities or coupons) payment of principal of (and premium, if any) and interest, if any, with respect to such Security need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
Section 114. Immunity of Incorporators, Stockholders, Directors and Officers.
No recourse shall be had for the payment of the principal of (and premium, if any), or the interest, if any, on any Security or coupon of any series, or for any claim based thereon, or upon any obligation, covenant or agreement of this Indenture, against any incorporator, stockholder, director, officer or employee, as such, past, present or future, of the Company or of any successor of the Company, either directly or indirectly through the Company or any successor of the Company or any Guarantor (if any) or any successor of any Guarantor (if any), whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment of penalty or otherwise; it being expressly agreed and understood that this Indenture and all the Securities and coupons of each series and any related Note Guarantees are solely corporate obligations, and that no personal liability whatever shall attach to, or is incurred by, any incorporator, stockholder, director, officer or employee, past, present or future, of the Company or any successor of the Company or any Guarantor (if any) of any successor of any Guarantor (if any), either directly or indirectly through the Company or any successor of the Company or any Guarantor (if any) or any successor of any Guarantor (if any), because of the incurring of the
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indebtedness hereby authorized or under or by reason of any of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or coupons of any series or any Note Guarantees related thereto, or to be implied herefrom or therefrom; and that all such personal liability is hereby expressly released and waived as a condition of, and as part of the consideration for, the execution of this Indenture and the issuance of the Securities and coupons of each series and the Note Guarantees related thereto.
Section 115. Certain Matters Relating to Currencies.
Subject to Section 311, each reference to any currency or currency unit in any Security, or in the Board Resolution or supplemental indenture relating thereto, shall mean only the referenced currency or currency unit and no other currency or currency unit.
The Trustee shall segregate moneys, funds and accounts held by the Trustee in one currency or currency unit from any moneys, funds or accounts held in any other currencies or currency units, notwithstanding any provision herein which would otherwise permit the Trustee to commingle such amounts.
Whenever any action or Act is to be taken hereunder by the Holders of Securities denominated in a Foreign Currency or currency unit, then for purposes of determining the principal amount of Securities held by such Holders, the aggregate principal amount of the Securities denominated in a Foreign Currency or currency unit shall be deemed to be that amount of Dollars that could be obtained for such principal amount on the basis of a spot rate of exchange specified to the Trustee for such series in an Officers’ Certificate for such Foreign Currency or currency unit into Dollars as of the date the taking of such action or Act by the Holders of the requisite percentage in principal amount of the Securities is evidenced to such Trustee.
Section 116. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, and any published notice may also be in an official language of the country of publication.
ARTICLE 2
Security Forms
Section 201. Forms of Securities.
The Registered Securities, if any, of each series and the Bearer Securities, if any, of each series and related coupons shall be substantially in the form (including global form) of Exhibit A to this Indenture or in such other form as shall be established by or pursuant to a Board Resolution of the Company, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or any indenture supplemental hereto and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as the Company may reasonably deem appropriate and as may be required to comply with any law, with any rule or regulation made pursuant
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thereto, with any rules of any securities exchange, automated quotation system or clearing agency or to conform to usage, as may, consistently herewith, be determined by the officers executing such Securities or coupons, as evidenced by their execution of such Securities or coupons. If temporary Securities of any series are issued in global form as permitted by Section 304, the form thereof shall be established as provided in the preceding sentence.
Unless otherwise specified as contemplated by Section 301, Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed, lithographed or engraved or produced by any combination of these methods on a steel engraved border or steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities or coupons, as evidenced by their execution thereof.
Section 202. Form of Trustee’s Certificate of Authentication.
Subject to Section 614, the Certificate of Authentication on all Securities shall be in substantially the following form:
This is one of the Securities of the series designated therein described in the within-mentioned Indenture.
| REGIONS BANK, as Trustee | ||
| By: | ||
| Authorized Signatory | ||
Section 203. Securities in Global Form.
If any Security of a series is issuable in global form, such Security may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be increased or reduced to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee and in such manner as shall be specified in such Security. Any instructions by the Company with respect to a Security in global form, after its initial issuance, shall be in writing but need not comply with Section 102.
Global Securities may be issued in either registered or bearer form and in either temporary or permanent form.
Any Security issued in global form shall bear legends as set forth in Exhibit A to this Indenture.
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Section 204. CUSIP Numbers.
The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use) or other identifying numbers (“Identifying Numbers”) and, if so, the Trustee shall use such Identifying Numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such Identifying Numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identifying numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the Identifying Numbers.
ARTICLE 3
The Securities
Section 301. Title; Payment and Terms.
The aggregate principal amount of Securities which may be authenticated and delivered and Outstanding under this Indenture is unlimited. The Securities may be issued up to the aggregate principal amount of Securities from time to time authorized by or pursuant to Board Resolutions of the Company.
The Securities may be issued in one or more series, each of which shall be issued pursuant to Board Resolutions of the Company. There shall be established in one or more Board Resolutions or pursuant to one or more Board Resolutions of the Company and, subject to Section 303, set forth in, or determined in the manner provided in, an Officer’s Certificate of the Company, or established in one or more supplemental indentures hereto, prior to the issuance of Securities of any series all or any of the following, as applicable (each of which, if so provided, may be determined from time to time by the Company with respect to unissued Securities of that series and set forth in the Securities of that series when issued from time to time):
(1) the title of the Securities of that series (which shall distinguish the Securities of that series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of that series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series pursuant to Section 304, 305, 306, 906 or 1107) and whether that series may be reopened for additional Securities of that series; in the event that such series of Securities may be reopened from time to time for issuance of additional Securities of such series, the terms thereof shall indicate whether any such additional Securities shall have the same terms as the prior Securities of such series or whether the Company may establish additional or different terms with respect to such additional Securities;
(3) whether Securities of that series are to be issuable as Registered Securities, Bearer Securities or both and any restrictions on the exchange of one form of Securities for another and on the offer, sale and delivery of the Securities in either form;
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(4) the date or dates (or manner of determining the same) on which the principal of the Securities of that series is payable (which, if so provided in such Board Resolutions, may be determined by the Company from time to time and set forth in the Securities of the series issued from time to time);
(5) the rate or rates (or the manner of calculation thereof) at which the Securities of that series shall bear interest (if any), the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable (or manner of determining the same) and the Regular Record Date for the interest payable on any Registered Securities on any Interest Payment Date and the extent to which, or the manner in which, any interest payable on a temporary Global Security on an Interest Payment Date will be paid if other than in the manner provided in Section 307;
(6) the place or places where, subject to the provisions of Section 1002, the principal of (and premium, if any) and interest, if any, on Securities of that series shall be payable, any Registered Securities of that series may be surrendered for registration of transfer, any Securities of that series may be surrendered for exchange, and notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served;
(7) the period or periods within which (or manner of determining the same), the price or prices at which (or manner of determining the same), the currency or currency unit in which, and the terms and conditions upon which Securities of that series may be redeemed, in whole or in part, at the option of the Company, and any remarketing arrangements with respect to the Securities of that series;
(8) the obligation, if any, of the Company to redeem, repay or purchase Securities of that series pursuant to any sinking fund or analogous provisions, upon a change of control or at the option of a Holder thereof, and the period or periods within which (or manner of determining the same), the price or prices at which (or manner of determining the same), the currency or currency unit in which, and the terms and conditions upon which, Securities of that series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) if the currency in which the Securities of that series shall be issuable is Dollars, the denominations in which any Registered Securities of that series shall be issuable, if other than denominations of $1,000 and any integral multiple thereof, and the denominations in which any Bearer Securities of that series shall be issuable, if other than the denomination of $5,000;
(10) if other than the principal amount thereof, the portion of the principal amount of Securities of that series which shall be payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502;
(11) if a Person other than Regions Bank is to act as Trustee for the Securities of that series, the name and location of the Corporate Trust Office of such Trustee;
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(12) if other than Dollars, the currency or currency unit in which payment of the principal of (and premium, if any) or interest, if any, on the Securities of that series shall be made or in which the Securities of that series shall be denominated and the particular provisions applicable thereto in accordance with, in addition to or in lieu of the provisions of Section 311;
(13) the inapplicability of any Event of Default or covenant set forth in Article 10 hereof to the Securities of that series, or the applicability of any other Events of Defaults or covenants in addition to the Events of Default or covenants set forth herein to Securities of that series;
(14) if the principal of (and premium, if any) and interest, if any, on the Securities of that series are to be payable, at the election of the Company or a Holder thereof, in a currency or currency unit other than that in which such Securities are denominated or stated to be payable, in accordance with provisions in addition to or in lieu of, or in accordance with the provisions of, Section 311, the period or periods within which (including the Election Date), and the terms and conditions upon which, such election may be made, and the time and manner of determining the exchange rate between the currency or currency unit in which such Securities are denominated or stated to be payable and the currency or currency unit in which such Securities are to be so payable;
(15) the designation of the original Currency Determination Agent, if any;
(16) if the Securities of such series are issuable as Indexed Securities, the manner in which the amount of payments of principal of (and premium, if any) and interest, if any, on that series shall be determined;
(17) if the Securities of that series do not bear interest, the applicable dates for purposes of Section 701;
(18) if other than as set forth in Article Four, provisions for the satisfaction and discharge of this Indenture with respect to the Securities of that series;
(19) the date as of which any Bearer Securities of that series and any Global Security representing Outstanding Securities of that series shall be dated if other than the date of original issuance of the first Security of that series to be issued;
(20) whether the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities and, in such case, the Depositary and Global Exchange Agent, if any, for such Global Security or Securities, whether such global form shall be permanent or temporary and, if applicable, the Exchange Date;
(21) if Securities of the series are to be issuable initially in the form of a temporary Global Security, the circumstances under which the temporary Global Security can be exchanged for definitive Securities and whether the definitive Securities will be Registered Securities and/or Bearer Securities and will be in global form and whether interest in respect of any portion of such Global Security payable in respect of an Interest
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Payment Date prior to the Exchange Date shall be paid to any clearing organization with respect to a portion of such Global Security held for its account and, in such event, the terms and conditions (including any certification requirements) upon which any such interest payment received by a clearing organization will be credited to the Persons entitled to interest payable on such Interest Payment Date if other than as provided in this Article Three;
(22) whether the subordination provisions of Article 15 hereof apply to the Securities of that series or any different subordination provisions, including a different definition of “Senior Indebtedness” apply to the Securities of that series;
(23) whether payment of any amount due under such Securities will be entitled to the benefits of any Note Guarantee of any Guarantors, pursuant to the Indenture;
(24) the terms, if any, upon which such Securities of any series may be converted or exchanged into or for common stock, preferred stock or other securities or property of the Company;
(25) the forms of the Securities of that series; and
(26) any other terms of that series (which terms shall not be inconsistent with the requirements of the Trust Indenture Act).
Unless otherwise provided in the Board Resolutions establishing a particular series of Securities, the Securities shall be subordinated in right of payment to Senior Indebtedness as provided in Article Fifteen.
All Securities of any particular series and the coupons appertaining to any Bearer Securities of such series shall be substantially identical except as to denomination, rate of interest, Stated Maturity and the date from which interest, if any, shall accrue, and except as may otherwise be provided in or pursuant to such Board Resolutions of the Company and set forth in such Officer’s Certificate relating thereto or provided in or pursuant to any supplemental indenture hereto. The terms of such Securities, as set forth above, may be determined by the Company from time to time if so provided in or established pursuant to the authority granted in its Board Resolutions. All Securities of any one series need not be issued at the same time, and unless otherwise provided, a series may be reopened for issuance of additional Securities of such series.
Prior to the delivery of a Security of any series in any such form to the Trustee for the Securities of such series for authentication, the Company shall deliver to such Trustee the following:
(1) The Board Resolutions of the Company by or pursuant to which such form of Security have been approved and, if applicable, the supplemental indenture by or pursuant to which such form of Security has been approved;
(2) An Officers’ Certificate of the Company dated the date such Certificate is delivered to such Trustee satisfying the requirements of Sections 102 and 103, and stating that all conditions precedent provided for in this Indenture relating to the authentication and delivery of Securities in such forms have been complied with; and
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(3) An Opinion of Counsel satisfying the requirements of Sections 102 and 103 substantially to the effect that Securities in such forms, together with any coupons appertaining thereto, when (a) completed by appropriate insertions and executed and delivered by the Company to such Trustee for authentication in accordance with this Indenture, (b) authenticated and delivered by such Trustee in accordance with this Indenture, and (c) issued by the Company in the manner and subject to the conditions specified in such Opinion of Counsel, will constitute the legal, valid and binding obligations of the Company, subject to the effects of applicable bankruptcy, reorganization, fraudulent conveyance, moratorium, insolvency and other similar laws generally affecting creditors’ rights, to general equitable principles, to an implied covenant of good faith and fair dealing and to such other qualifications as such counsel shall conclude do not materially affect the rights of Holders of such Securities.
Section 302. Denominations and Currencies.
Unless otherwise provided with respect to any series of Securities as contemplated by Section 301, any Registered Securities of a series other than Registered Securities issued in global form (which may be of any denomination) shall be issuable in denominations of $1,000 and any integral multiple thereof, and any Bearer Securities of a series other than Bearer Securities issued in global for (which may be of any denomination) shall be issuable in the denomination of $5,000, or the equivalent amounts thereof in the case of Registered Securities and Bearer Securities denominated in a Foreign Currency or currency unit.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities and any related coupons shall be executed on behalf of the Company by its Chairman of the Board, a Vice Chairman of the Board, or its President, Chief Executive Officer or one of its Vice Presidents. The Securities shall be so executed under the corporate seal of the Company reproduced thereon and attested to by its Secretary or any one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile.
Securities and coupons bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series together with any coupons appertaining thereto, executed by the Company (and, if applicable, having endorsed thereon the Note Guarantees executed as provided in Section 1403 hereof) to the Trustee for the Securities of such series for authentication, together with a Company Order for the authentication and delivery of such Securities, and such Trustee, in accordance with the Company Order, shall authenticate and deliver such Securities; provided, however, that, during the “restricted period” (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations), no Bearer Security
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shall be mailed or otherwise delivered to any location in the United States; and provided, further, that a Bearer Security may be delivered outside the United States in connection with its original issuance only if the Person entitled to receive such Bearer Security shall have furnished to the Trustee for the Securities of such series a certificate substantially in the form set forth in Exhibit B to this Indenture. If any Security shall be represented by a permanent Global Security, then, for purposes of this Section and Section 304, the notation of a beneficial owner’s interest therein upon original issuance of such Security or upon exchange of a portion of a temporary Global Security shall be deemed to be delivery in connection with the original issuance of such beneficial owner’s interest in such permanent Global Security. Except as permitted by Section 306 or 307, the Trustee for the Securities of a series shall not authenticate and deliver any Bearer Security unless all appurtenant coupons for interest then matured other than matured coupons in default have been detached and cancelled. If all the Securities of any one series are not to be issued at one time and if a Board Resolution relating to such Securities shall so permit, such Company Order may set forth procedures acceptable to the Trustee for the issuance of such Securities, including, without limitation, procedures with respect to interest rate, Stated Maturity, date of issuance and date from which interest, if any, shall accrue.
Notwithstanding any contrary provision herein, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Board Resolution, Officers’ Certificate and Opinion of Counsel otherwise required pursuant to Sections 102 and 301 at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Registered Security shall be dated the date of its authentication, and, unless otherwise specified as contemplated by Section 301, each Bearer Security shall be dated as of the date of original issuance of the first Security of such series to be issued.
No Security or coupon appertaining thereto or Note Guarantee endorsed thereon shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein manually executed by the Trustee for such Security or on its behalf pursuant to Section 614, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder.
In case any Securities shall have been authenticated, but not delivered, by the Trustee or the Authenticating Agent for such series then in office, any successor by merger, conversion or consolidation to such Trustee, or any successor Authenticating Agent, as the case may be, may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee or successor Authenticating Agent had itself authenticated such Securities.
Each Depositary designated pursuant to Section 301 for a Global Security in registered form must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
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The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders.
Section 304. Temporary Securities and Exchange of Securities.
Pending the preparation of definitive Securities of any particular series, the Company may execute, and upon Company Order the Trustee for the Securities of such series shall authenticate and deliver, in the manner specified in Section 303, temporary Securities which are printed, lithographed, typewritten, photocopied or otherwise produced, in any denomination, with like terms and conditions as the definitive Securities of like series in lieu of which they are issued in registered form or, if authorized, in bearer form with one or more coupons or without coupons, and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities. Any such temporary Securities may be in global form, representing such of the Outstanding Securities of such series as shall be specified therein.
Except in the case of temporary Securities in global form (which shall be exchanged only in accordance with the provisions of the following paragraphs or as otherwise provided in or pursuant to a Board Resolution or a Supplemental Indenture), if temporary Securities of any particular series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of such definitive Securities, the temporary Securities of such series shall be exchangeable for such definitive Securities of a like Stated Maturity and with like terms and provisions upon surrender of the temporary Securities of such series, together with all unmatured coupons and matured coupons in default, if any, at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any particular series, the Company shall execute and (in accordance with a Company Order delivered at or prior to the authentication of the first definitive Security of such series) the Trustee for the Securities of such series or the Global Exchange Agent shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of authorized denominations of the same series and of a like Stated Maturity and with like terms and provisions; provided, however, unless otherwise specified pursuant to Section 301, no definitive Bearer Security shall be delivered in exchange for a temporary Registered Security; and provided, further, that a definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth in Section 303. Until exchanged as hereinabove provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and with like terms and conditions, except as to payment of interest, if any, authenticated and delivered hereunder.
Any temporary Global Security and any permanent Global Security shall, unless otherwise provided therein, be delivered to a Depositary designated pursuant to Section 301.
Without unnecessary delay but in any event not later than the date specified in or determined pursuant to the terms of any such temporary Global Security (the “Exchange Date”), the Securities represented by any temporary Global Security of a series of Securities issuable in
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bearer form may be exchanged for definitive Securities (subject to the second succeeding paragraph) or Securities to be represented thereafter by one or more permanent Global Securities, without interest coupons. On or after the Exchange Date such temporary Global Security shall be surrendered by the Depositary to the Trustee for such Security, as the Company’s agent for such purpose, or the agent appointed by the Company pursuant to Section 301 to effect the exchange of the temporary Global Security for definitive Securities (the “Global Exchange Agent”), and following such surrender, such Trustee or the Global Exchange Agent (as authorized by the Trustee as an Authenticating Agent pursuant to Section 614) shall (1) endorse the temporary Global Security to reflect the reduction of its principal amount by an equal aggregate principal amount of such Security, (2) endorse the applicable permanent Global Security, if any, to reflect the initial amount, or an increase in the amount of Securities represented thereby, (3) manually authenticate such definitive Securities or such permanent Global Security, as the case may be, (4) subject to Section 303, deliver such definitive Securities to the Holder thereof or, as the case may be, deliver such permanent Global Security to the Depositary to be held outside the United States for the accounts of Euroclear and Clearstream Banking, for credit to the respective accounts at Euroclear and Clearstream Banking, designated by or on behalf of the beneficial owners of such Securities (or to such other accounts as they may direct) and (5) redeliver such temporary Global Security to the Depositary, unless such temporary Global Security shall have been cancelled in accordance with Section 309 hereof; provided, however, that, unless otherwise specified in such temporary Global Security, upon such presentation by the Depositary, such temporary Global Security shall be accompanied by a certificate dated the Exchange Date or a subsequent date and signed by Euroclear as to the portion of such temporary Global Security held for its account then to be exchanged for definitive Securities or one or more permanent Global Securities, as the case may be, and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream Banking, as to the portion of such temporary Global Security held for its account then to be exchanged for definitive Securities or one or more permanent Global Securities, as the case may be, each substantially in the form set forth in Exhibit C to this Indenture. Each certificate substantially in the form of Exhibit C hereto of Euroclear or Clearstream Banking, as the case may be, shall be based on certificates of the account holders listed in the records of Euroclear or Clearstream Banking, as the case may be, as being entitled to all or any portion of the applicable temporary Global Security. An account holder of Euroclear or Clearstream Banking, as the case may be, desiring to effect the exchange of interest in a temporary Global Security for an interest in definitive Securities or one or more permanent Global Securities shall instruct Euroclear or Clearstream Banking, as the case may be, to request such exchange on its behalf and shall deliver to Euroclear or Clearstream Banking, as the case may be, a certificate substantially in the form of Exhibit B hereto and dated no earlier than 15 days prior to the Exchange Date. Until so exchanged, temporary Global Securities shall in all respects be entitled to the same benefits under this Indenture as definitive Securities and permanent Global Securities of the same series authenticated and delivered hereunder, except as provided in the fourth succeeding paragraph.
The delivery to the Trustee for the Securities of the appropriate series or the Global Exchange Agent by Euroclear or Clearstream Banking of any certificate substantially in the form of Exhibit C hereto may be relied upon by the Company and such Trustee or the Global Exchange Agent as conclusive evidence that a corresponding certificate or certificates has or have been delivered to Euroclear or to Clearstream Banking, as the case may be, pursuant to the terms of this Indenture.
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On or prior to the Exchange Date, the Company shall deliver to the Trustee for the Securities of the appropriate series or the Global Exchange Agent definitive Securities or one or more permanent Global Securities in aggregate principal amount equal to the principal amount of such temporary Global Security, executed by the Company in the case of the Securities. At any time, on or after the Exchange Date, upon 30 days’ notice to the Trustee for the Securities of the appropriate series or the Global Exchange Agent by Euroclear or Clearstream Banking, as the case may be, acting at the request of or on behalf of the beneficial owner, a Security represented by a temporary Global Security or a permanent Global Security, as the case may be, may be exchanged, in whole or from time to time in part, for definitive Securities without charge and such Trustee or the Global Exchange Agent shall authenticate and deliver, in exchange for each portion of such temporary Global Security or such permanent Global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and with like terms and provisions as the portion of such temporary Global Security or such permanent Global Security to be exchanged, which, unless the Securities of the series are not issuable both as Bearer Securities and as Registered Securities, as contemplated by Section 301, shall be in the form of Bearer Securities or Registered Securities, or any combination thereof, as shall be specified by the beneficial owner thereof; provided, however, that definitive Bearer Securities shall be delivered in exchange for a portion of the temporary Global Security or the permanent Global Security only in compliance with the requirements of the second preceding paragraph. On or prior to the thirtieth day following receipt by the Trustee for the Securities of the appropriate series or the Global Exchange Agent of such notice with respect to a Security, or, if such day is not a Business Day, the next succeeding Business Day, the temporary Global Security or the permanent Global Security, as the case may be, shall be surrendered by the Depositary to such Trustee, as the Company’s agent for such purpose, or the Global Exchange Agent to be exchanged in whole, or from time to time in part, for definitive Securities without charge following such surrender, upon the request of Euroclear or Clearstream Banking, as the case may be, and such Trustee or the Global Exchange Agent shall (1) endorse the applicable temporary Global Security or the permanent Global Security to reflect the reduction of its principal amount by the aggregate principal amount of such Security, (2) in accordance with procedures acceptable to the Trustee cause the terms of such Security and coupons, if any, to be entered on a definitive Security, (3) manually authenticate such definitive Security and (4) if a Bearer Security is to be delivered, deliver such definitive Security outside the United States to Euroclear or Clearstream Banking, as the case may be, for or on behalf of the beneficial owner thereof, in exchange for a portion of such permanent Global Security.
Unless otherwise specified in such temporary Global Security or permanent Global Security, any such exchange shall be made free of charge to the beneficial owners of such temporary Global Security or permanent Global Security, except that a Person receiving definitive Securities must bear the cost of any taxes, insurance, postage, transportation and the like in the event that such Person does not take delivery of such definitive Securities in person at the offices of Euroclear or Clearstream Banking. Definitive Securities in bearer form to be delivered in exchange for any portion of a temporary Global Security or a permanent Global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, any temporary Global Security or permanent Global Security shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and with like terms and conditions, except as
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to payment of interest, if any, authenticated and delivered hereunder. Unless otherwise specified as contemplated by Section 301, interest payable on such temporary Global Security on an Interest Payment Date for Securities of such series shall be payable to Euroclear and Clearstream Banking on such Interest Payment Date upon delivery by Euroclear and Clearstream Banking to the Trustee for the Securities of the appropriate series or the Global Exchange Agent in the case of payment of interest on a temporary Global Security with respect to an Interest Payment Date occurring prior to the applicable Exchange Date of a certificate or certificates substantially in the form set forth in Exhibit D to this Indenture, for credit without further interest on or after such Interest Payment Date to the respective accounts of the Persons who are the beneficial owners of such Global Security on such Interest Payment Date and who have, in the case of payment of interest on a temporary Global Security with respect to an Interest Payment Date occurring prior to the applicable Exchange Date, each delivered to Euroclear or Clearstream Banking, as the case may be, a certificate substantially in the form set forth in Exhibit E to this Indenture.
Any definitive Bearer Security authenticated and delivered by the Trustee for the Securities of the appropriate series or the Global Exchange Agent in exchange for a portion of a temporary Global Security or a permanent Global Security shall not bear a coupon for any interest which shall theretofore have been duly paid by such Trustee to Euroclear or Clearstream Banking or by the Company to such Trustee in accordance with the provisions of this Section 304.
With respect to Exhibits A, B, C and D to this Indenture, the Company may, in its discretion and if required or desirable under applicable law, substitute one or more other forms of such exhibits for such exhibits, eliminate the requirement that any or all certificates be provided, or change the time that any certificate may be required, provided that such substitute form or forms or notice of elimination or change of such certification requirement have theretofore been delivered to the Trustee with a Company Request and such form or forms, elimination or change is reasonably acceptable to the Trustee.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee for the Securities of each series a register (the register maintained in such office being herein sometimes referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and of transfers of Registered Securities. The Trustee for the Securities of each series is hereby initially appointed “Security Registrar” for the purpose of registering Registered Securities and transfers of Registered Securities of such series as herein provided.
Upon surrender for registration of transfer of any Registered Security of any particular series at the office or agency of the Company in a Place of Payment for that series, the Company shall execute, and the Trustee for the Securities of each series shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of any authorized denominations, and of a like Stated Maturity and of a like series and aggregate principal amount and with like terms and conditions.
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Except as set forth below, at the option of the Holder, Registered Securities of any particular series may be exchanged for other Registered Securities of any authorized denominations, and of a like Stated Maturity and of a like series and aggregate principal amount and with like terms and conditions upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee for such Securities shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive. Except as otherwise specified pursuant to Section 301, Registered Securities may not be exchanged for Bearer Securities.
Notwithstanding any other provision of this Section or Section 304, unless and until it is exchanged in whole or in part for Registered Securities in definitive form, a Global Security representing all or a portion of the Registered Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
If (but not only if) permitted by the applicable Board Resolution and (subject to Section 308) set forth in the applicable Officer’s Certificate, at the option of the Holder, Bearer Securities of any series may be exchanged for Registered Securities of the same series of any authorized denominations and of a like aggregate principal amount and with like terms and provisions upon surrender of the Bearer Securities to be exchanged at any office or agency of the Company in a Place of Payment for that series, with all unmatured coupons and all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default, such exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Company (or to the Trustee for the Security in case of matured coupons in default) in an amount equal to the face amount of such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and such Trustee if there is furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 1002, interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency of the Company in a Place of Payment for that series located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in exchange for a Registered Security of the same series and with like terms and conditions after the close of business at such office or agency on or after (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date for payment, as the case may be (or, if such coupon is so surrendered with such Bearer Security, such coupon shall be returned to the person so surrendering the Bearer Security), and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture.
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Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee for such Securities shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for Securities of a series in registered form notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series or if at any time the Depositary for the Securities of such series shall no longer be eligible under Section 303, the Company shall appoint a successor Depositary with respect to the Securities for such series. If (i) a successor Depositary for the Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, (ii) the Company delivers to the Trustee for Securities of such series in registered form a Company Order stating that the Securities of such series shall be exchangeable, or (iii) an Event of Default under Section 501 hereof has occurred and is continuing with respect to the Securities of such series, the Company’s election pursuant to Section 301 shall no longer be effective with respect to the Securities for such series and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver Securities of such series in definitive form in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the Registered Securities of any series issued in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Registered Securities of such series, will authenticate and deliver, Registered Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities.
If specified in a Board Resolution adopted by the Company pursuant to Section 301 with respect to a series of Securities in registered form, the Depositary for such series of Securities may surrender a Global Security for such series of Securities in exchange in whole or in part for Securities of such series of like tenor and terms and in definitive form on such terms as are acceptable to the Company and such Depositary. Thereupon the Company shall execute, and, upon receipt of a Company Order, the Trustee shall authenticate and deliver, without service charge, (i) to each Person specified by such Depositary a new Security or Securities of the same series, of like tenor and terms and of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Global Security; and (ii) to such Depositary a new Global Security of like tenor and terms and in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Securities delivered to Holders thereof.
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Upon the exchange of a Global Security for Securities in definitive form representing the aggregate principal amount of such Global Security, such Global Security shall be cancelled by the Trustee. Registered Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee in writing. The Trustee shall deliver such Registered Securities to the persons in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or exchange shall (if so required by the Company or the Trustee for such Security) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar for such series duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of that series selected for redemption under Section 1104 and ending at the close of business on (A) if Securities of the series are issuable only as Registered Securities, the day of the mailing of the relevant notice of redemption and (B) if Securities of the series are issuable as Bearer Securities, the day of the first publication of the relevant notice of redemption or, if Securities of the series are also issuable as Registered Securities and there is no publication, the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Registered Security so selected for redemption as a whole or in part, except the unredeemed portion of any Security being redeemed in part, or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of that series and like tenor; provided, however, that such Registered Security shall be simultaneously surrendered for redemption.
Furthermore, notwithstanding any other provision of this Section 305, the Company will not be required to exchange any Securities if, as a result of the exchange, the Company would suffer adverse consequences under any United States law or regulation.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If (i) any mutilated Security or a Security with a mutilated coupon appertaining thereto is surrendered to the Trustee for such Security or the Company and the Trustee for a Security receive evidence to their satisfaction of the destruction, loss or theft of any Security or coupon
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and (ii) there is delivered to the Company and such Trustee such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or such Trustee that such Security or coupon has been acquired by a bona fide or protected purchaser, the Company shall execute and upon its request such Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security or in exchange for such mutilated Security, or in exchange for the Security to which a mutilated, destroyed, lost or stolen coupon appertains (with all appurtenant coupons not mutilated, destroyed, lost or stolen) a new Security of the same series and in a like principal amount and of a like Stated Maturity and with like terms and conditions, and bearing a number not contemporaneously outstanding with coupons corresponding to the coupons, if any, appertaining to such mutilated, destroyed, lost or stolen Security or to the Security to which such mutilated, destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security or coupon (without surrender thereof except in the case of a mutilated Security or coupon) if the applicant for such payment shall furnish to the Company and the Trustee for such Security such security or indemnity as may be required by them to save each of them harmless, and in case of destruction, loss or theft, evidence satisfactory to the Company and such Trustee and any agent of any of them of the destruction, loss or theft of such Security and the ownership thereof; provided, however, that the principal of (and premium, if any) and interest, if any, on Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an office or agency located outside the United States and, unless otherwise specified as contemplated by Section 301, any interest on Bearer Securities shall be payable only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including all fees and expenses of the Trustee for such Security) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security or in exchange for any mutilated Security, or in exchange for a Security to which a mutilated, destroyed, lost or stolen coupon appertains shall constitute an original additional contractual obligation of the Company whether or not the destroyed, lost or stolen Security and its coupons, if any, or the destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and each such new Security shall be at any time enforceable by anyone, and each such new Security shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons.
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Section 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall, if so provided in such Security, be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest payment.
Unless otherwise provided with respect to the Securities of any series, payment of interest may be made at the Corporate Trust Office or, at the option of the Company (i) in the case of Registered Securities, may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register, or (ii) in the case of Bearer Securities, upon presentation and surrender of the appropriate coupon appertaining thereto or by transfer to an account maintained by the payee with a bank located outside the United States. Notwithstanding the foregoing, a Holder of $5,000,000 or more in aggregate principal amount of Securities of any series in definitive form (other than Bearer Securities), whether having identical or different terms and provisions, having the same Interest Payment Dates will, at the option of the Company, be entitled to receive interest payments, other than at Maturity, by wire transfer of immediately available funds if appropriate wire transfer instructions have been received in writing by the Trustee for the Securities of such series at least 15 days prior to the applicable Interest Payment Date. Any wire instructions received by the Trustee for the Securities of such series shall remain in effect until revoked by the Holder.
Unless otherwise provided or contemplated by Section 301, every permanent Global Security will provide that interest, if any, payable on any Interest Payment Date will be paid to each of Euroclear and Clearstream Banking with respect to that portion of such permanent Global Security held for its account by the Depositary. Each of Euroclear and Clearstream Banking will in such circumstances credit the interest received by it in respect of such permanent Global Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any particular series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of that series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee for the Registered Securities of such series in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of that series and the date of the proposed payment, and at the same time the Company shall deposit with such Trustee an amount of money in the currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d)), equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to such Trustee
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for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon such Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall not be more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by such Trustee of the notice of the proposed payment. Such Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Registered Securities of that series at his address as it appears in the Security Register not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names the Registered Securities of that series (or their respective Predecessor Securities) are registered on such Special Record Date and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on Registered Securities of any particular series in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Registered Securities may be listed, and upon such notice as may be required by such exchange, if, after notice is given by the Company to the Trustee for the Securities of such series of the proposed manner of payment pursuant to this clause, such manner of payment shall be deemed practicable by such Trustee.
Subject to the foregoing provisions of this Section and Section 305, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee for such Security and any agent of the Company or such Trustee may treat the Person in whose name any such Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 307) interest, if any, on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and none of the Company, such Trustee or any agent of the Company or such Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall pass by delivery. The Company, the Trustee for such Security and any agent of the Company or such Trustee may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner of such Bearer Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Security or coupon be overdue, and none of the Company, such Trustee or any agent of the Company or such Trustee shall be affected by notice to the contrary.
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None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Section 309. Cancellation.
All Securities and coupons surrendered for payment, redemption, registration of transfer or exchange, or delivered in satisfaction of any sinking fund payment, shall, if surrendered to any Person other than the Trustee for such Securities, be delivered to such Trustee and, in the case of Registered Securities and matured coupons, shall be promptly cancelled by it. All Bearer Securities and unmatured coupons so delivered to the Trustee for such Securities shall be cancelled by such Trustee. The Company may at any time deliver to the Trustee for Securities of a series for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by such Trustee. Notwithstanding any other provision of this Indenture to the contrary, in the case of a series, all the Securities of which are not to be originally issued at one time, a Security of such series shall not be deemed to have been Outstanding at any time hereunder if and to the extent that, subsequent to the authentication and delivery thereof, such Security is delivered to the Trustee for such Security for cancellation by the Company or any agent thereof upon the failure of the original purchaser thereof to make payment therefor against delivery thereof, and any Security so delivered to such Trustee shall be promptly cancelled by it. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities and coupons held by the Trustee for such Securities shall be disposed of by such Trustee in accordance with its standard procedures and a certificate of disposition evidencing such disposition of Securities and coupons shall be provided to the Company by such Trustee. In the case of any temporary Global Security, which shall be disposed of if the entire aggregate principal amount of the Securities represented thereby has been exchanged, the certificate of disposition shall state that all certificates required pursuant to Section 304 hereof, substantially in the form of Exhibit C hereto (or in the form of any substitute exhibit as provided in the last paragraph of Section 304), to be given by Euroclear or Clearstream Banking, have been duly presented to the Trustee for such Securities by Euroclear or Clearstream Banking, as the case may be. Permanent Global Securities shall not be disposed of until exchanged in full for definitive Securities or until payment thereon is made in full.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any particular series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
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Section 311. Currency and Manner of Payments in Respect of Securities.
Unless otherwise specified in accordance with Section 301 with respect to any series of Securities, the following provisions shall apply:
(a) Except as provided in paragraphs (b) and (d) below, the principal of (and premium, if any) and interest on Securities of any series denominated in a Foreign Currency or currency unit will be payable by the Company in Dollars based on the equivalent of that Foreign Currency or currency unit converted into Dollars in the manner described in paragraph (c) below.
(b) It may be provided pursuant to Section 301 with respect to Registered Securities of any series denominated in a Foreign Currency or currency unit that Holders shall have the option, subject to paragraph (d) below, to receive payments of principal of (and premium, if any) and interest on such Registered Securities in such Foreign Currency or currency unit by delivering to the Trustee (or to any duly appointed Paying Agent) for the Registered Securities of that series a written election, to be in form and substance satisfactory to such Trustee (or to any such Paying Agent), not later than the close of business on the Election Date immediately preceding the applicable payment date. If a Holder so elects to receive such payments in such Foreign Currency or currency unit, such election will remain in effect for such Holder until changed by such Holder by written notice to the Trustee (or to any such Paying Agent) for the Registered Securities of that series; provided, however, that any such change must be made not later than the close of business on the Election Date immediately preceding the next payment date to be effective for the payment to be made on such payment date; and provided, further, that no such change or election may be made with respect to payments to be made on any Registered Security of such series with respect to which an Event of Default has occurred, the Company has exercised any defeasance, satisfaction or discharge options pursuant to Article Four or notice of redemption has been given by the Company pursuant to Article Eleven. If any Holder makes any such election, such election will not be effective as to any transferee of such Holder and such transferee shall be paid in Dollars unless such transferee makes an election as specified above; provided, however, that such election, if in effect while funds are on deposit with respect to the Registered Securities of such series as described in Section 404 or Section 405, will be effective as to any transferee of such Holder unless otherwise specified pursuant to Section 301 for such Registered Securities. Any Holder of any such Registered Security who shall not have delivered any such election to the Trustee (or to any duly appointed Paying Agent) for the Registered Securities of such series not later than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date in Dollars.
(c) With respect to any Registered Securities of any series denominated in a Foreign Currency or currency unit and payable in Dollars, the amount of Dollars so payable will be determined by the Currency Determination Agent based on the highest indicative quotation in The City of New York selected by the Currency Determination Agent (after consultation with the Company) at approximately 11:00 A.M., New York City time, on the second Business Day preceding the applicable payment date. Such selection shall be made from among the quotations appearing on the bank composite or multi-contributor pages of the Reuters Monitor Foreign Exchange Service or, if not available, the Telerate Monitor Foreign Exchange Service, for three (or two if three are not available) major banks in New York City. The first three (or two) such banks selected by the Currency Determination Agent which are offering quotes on the Reuters Foreign Exchange Service shall be used. If such quotations are unavailable from either such foreign exchange service, such selection shall be made from the quotations received by the Currency Determination Agent from no more than three nor less than two recognized foreign exchange dealers in The City of New York selected by the Currency Determination Agent and approved by the Company (one of which may be the Currency Determination Agent) for the
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purchase by the quoting dealer, for settlement on such payment date, of the aggregate amount of the Foreign Currency or currency unit payable on such payment date in respect of all Registered Securities denominated in such Foreign Currency or currency unit and for which the applicable dealer commits to execute a contract. If fewer than two such bid quotations are available at 11:00 a.m., New York City time, on the second Business Day preceding the applicable payment date, such payment will be based on the Market Exchange Rate as of the second Business Day preceding the applicable payment date. If the Market Exchange Rate for such date is not then available, payments shall be made in the Foreign Currency or currency unit. All currency exchange costs associated with any payment in Dollars on any such Registered Securities will be borne by the Holder thereof by deductions from such payment.
(d) If a Conversion Event occurs with respect to a Foreign Currency or currency unit in which Registered Securities of any series are payable, then with respect to each date for the payment of principal of (and premium, if any) and interest on the Registered Securities of that series occurring after the last date on which such Foreign Currency or currency unit was used, the Company may make such payment in Dollars. The Dollar amount to be paid by the Company to the Trustee for the Registered Securities of such series and by such Trustee or any Paying Agent for the Registered Securities of such series to the Holders of such Registered Securities with respect to such payment date shall be determined by the Currency Determination Agent on the basis of the Market Exchange Rate as of the second Business Day preceding the applicable payment date or, if such Market Exchange Rate is not then available, on the basis of the most recently available Market Exchange Rate, or as otherwise established pursuant to Section 301 with respect to such Securities. Any payment in respect of such Registered Security made under such circumstances in Dollars will not constitute an Event of Default hereunder.
(e) For purposes of this Indenture the following terms shall have the following meanings:
A “Component Currency” shall mean any currency which is a component currency of any currency unit.
“Election Date” shall mean, for the Registered Securities of any series, the date specified pursuant to Section 301(14).
(f) Notwithstanding any other provisions of this Section 311, the following shall apply: (i) if the official unit of any Component Currency is altered by way of combination or subdivision, the number of units of that currency as a component shall be divided or multiplied in the same proportion, (ii) if two or more Component Currencies are consolidated into a single currency, the amounts of those currencies as components shall be replaced by an amount in such single currency equal to the sum of the amounts of the consolidated Component Currencies expressed in such a single currency, (iii) if any Component Currency is divided into two or more currencies, the amount of that original Component Currency as a component shall be replaced by the amounts of such two or more currencies having an aggregate value on the date of division equal to the amount of the former Component Currency immediately before such division and (iv) in the event of an official redenomination of any currency (including, without limitation, a currency unit), the obligations of the Company to make payments in or with reference to such currency on the Registered Securities of any series shall, in all cases, be deemed immediately
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following such redenomination to be obligations to make payments in or with reference to that amount of redenominated currency representing the amount of such currency immediately before such redenomination.
(g) All determinations referred to in this Section 311 made by the Currency Determination Agent shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Holders of the applicable Securities. The Currency Determination Agent shall promptly give written notice to the Trustee of any such decision or determination. The Currency Determination Agent shall have no liability for any determinations referred to in this Section 311 made by it.
(h) The Trustee for the Securities of a particular series shall be fully justified and protected in relying and acting upon information received by it from the Company and the Currency Determination Agent with respect to any of the matters addressed in or contemplated by this Section 311 and shall not otherwise have any duty or obligation to determine such information independently.
Section 312. Appointment and Resignation of Currency Determination Agent.
(a) If and so long as the Securities of any series (i) are denominated in a currency unit or a currency other than Dollars or (ii) may be payable in a currency unit or a currency other than Dollars, or so long as it is required under any other provision of this Indenture, then the Company shall maintain with respect to each such series of Securities, or as so required, a Currency Determination Agent. The Company shall cause the Currency Determination Agent to make the necessary foreign exchange determinations at the time and in the manner specified pursuant to Section 301 for the purpose of determining the applicable rate of exchange and for the purpose of converting the issued currency or currency unit into the applicable payment currency or currency unit for the payment of principal (and premium, if any) and interest, if any, pursuant to Section 311.
(b) No resignation of the Currency Determination Agent and no appointment of a successor Currency Determination Agent pursuant to this Section shall become effective until the acceptance of appointment by the successor Currency Determination Agent as evidenced by a written instrument delivered to the Company and the Trustee of the appropriate series of Securities accepting such appointment executed by the successor Currency Determination Agent.
(c) If the Currency Determination Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Currency Determination Agent for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Currency Determination Agent or Currency Determination Agents with respect to the Securities of that or those series (it being understood that any such successor Currency Determination Agent may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall only be one Currency Determination Agent with respect to the Securities of any particular series).
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ARTICLE 4
Satisfaction and Discharge
Section 401. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by a Board Resolution set forth in an Officers’ Certificate, at any time, with respect to the Securities of any series, elect to have either Section 402 or 403 be applied to all of the Outstanding Securities of that series upon compliance with the conditions set forth below in this Article Four.
Section 402. Legal Defeasance and Discharge.
Upon the Company’s exercise under Section 401 of the option applicable to this Section 402, the Company shall be deemed to have been discharged from its obligations with respect to all Outstanding Securities of the particular series and any coupons appertaining thereto on the date the conditions set forth below in Section 404 are satisfied (hereinafter, “Legal Defeasance”). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged all the obligations relating to the Outstanding Securities of that series and the Securities of that series, including any coupons appertaining thereto, shall thereafter be deemed to be “Outstanding” only for the purposes of Section 406, Section 408 and the other Sections of this Indenture referred to below in this Section 402, and to have satisfied all of its other obligations under such Securities and any coupons appertaining thereto and this Indenture and cured all then existing Events of Default (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of Outstanding Securities of the particular series and coupons, if any, of such series to receive payments in respect of the principal of (and premium, if any) and interest, if any, on such Securities when such payments are due or on the Redemption Date solely out of the trust created pursuant to this Indenture; (b) the Company’s obligations with respect to such Securities concerning issuing temporary Securities of that series, or, where relevant, registration of such Securities, mutilated, destroyed, lost or stolen Securities of that series and the maintenance of an office or agency for payment and money for Securities payments held in trust; (c) the rights, powers, trusts, duties and immunities of the Trustee for the Securities of that series, and the Company’s obligations in connection therewith; and (d) this Article Four and the obligations set forth in Section 406 hereof. Money and Securities held in trust pursuant to this Section 402 shall not be subject to Article Fifteen or any other subordination provisions.
Subject to compliance with this Article Four, the Company may exercise its option under Section 402 notwithstanding the prior exercise of its option under Section 403 with respect to the Securities of a particular series and any coupons appertaining thereto.
Section 403. Covenant Defeasance.
Upon the Company’s exercise under Section 401 of the option applicable to this Section 403, the Company shall be released from any obligations under the covenants contained in Sections 704 and 801 hereof (and any other covenant in addition to those set forth herein
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applicable to Securities of any series pursuant to Section 301 hereof specified to be released as provided under this Section 403) with respect to the Outstanding Securities of the particular series, along with any additional covenants or other provisions (including Events of Default) contained in such Security or any Supplemental Indenture in connection therewith, on and after the date the conditions set forth below in Section 404 are satisfied (hereinafter, “Covenant Defeasance”), and the Securities of that series and any coupons appertaining thereto shall thereafter be deemed not “Outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “Outstanding” for all other purposes hereunder (it being understood that such Securities shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the Outstanding Securities of that series and any coupons appertaining thereto, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a default or Event of Default under subsection 501 but, except as specified above, the remainder of this Indenture and the Securities of that series shall be unaffected thereby.
Section 404. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section 402 or Section 403 to the Outstanding Securities of a particular series:
(a) the Company must irrevocably deposit, or cause to be irrevocably deposited, with the Trustee for the Securities of that series, in trust, for the benefit of the Holders of the Securities of that series, cash in the currency or currency unit in which the Securities of that series are payable (except as otherwise specified pursuant to Section 301 for the Securities of that series and except as provided in Sections 311(b) and 311(d), in which case the deposit to be made with respect to Securities for which an election has occurred pursuant to Section 311(b), or a Conversion Event has occurred as provided in Section 311(d), shall be made in the currency or currency unit in which the Securities of that series are payable as a result of such election or Conversion Event), Government Obligations or a combination thereof in such amounts as will be sufficient, in the opinion of an internationally recognized firm of independent public accountants, to pay the principal of (and premium, if any) and interest, if any, due on the outstanding Securities of that series and any related coupons at the Stated Maturity, or on the applicable Redemption Date, as the case may be, with respect to the outstanding Securities of that series and any related coupons;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee for the Securities of that series an Opinion of Counsel in the United States reasonably acceptable to such Trustee confirming that, subject to customary assumptions and exclusions, (1) the Company has received from, or there has been published by, the U.S. Internal Revenue Service a ruling or (2) since the Issue Date, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel in the United States shall confirm that, subject to customary assumptions and exclusions, the Holders of the Outstanding Securities of that series will not recognize income, gain or loss for U.S. federal
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income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee for the Securities of that series an Opinion of Counsel in the United States reasonably acceptable to such Trustee confirming that, subject to customary assumptions and exclusions, the Holders of the Outstanding Securities of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to such tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Event of Default or event which with the giving of notice or the lapse of time, or both, would become an Event of Default with respect to the Securities of that series shall have occurred and be continuing on the date of such deposit and no Event of Default under Section 501(4) or Section 501(5) shall have occurred and be continuing on the 123rd day after such date; and
(e) the Company shall have delivered to the Trustee for the Securities of that series an Officers’ Certificate and an Opinion of Counsel in the United States (which opinion of counsel may be subject to customary assumptions and exclusions) each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Section 405. Satisfaction and Discharge of Indenture.
This Indenture will be discharged and will cease to be of further effect as to all Securities of any particular series issued hereunder when either (i) all Securities of that series theretofore authenticated and delivered and all coupons, if any, appertaining thereto (except (A) coupons appertaining to Bearer Securities surrendered for exchange for Registered Securities and maturing after such exchange, whose surrender is not required or has been waived as provided in Section 305, (B) lost, stolen or destroyed Securities or coupons of such series which have been replaced or paid as provided in Section 306, (C) coupons appertaining to Securities called for redemption and maturing after the relevant Redemption Date, whose surrender is not required as provided in Section 1106 and (D) Securities and coupons of such series for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company or discharged from such trust, as provided in the last paragraph of Section 1003) have been delivered to the Trustee for the Securities of that series for cancellation or (ii) (A) all Securities of that series and any coupons appertaining thereto not theretofore delivered to Trustee for cancellation are due and payable by their terms within one year or have become due and payable by reason of the making of a notice of redemption and the Company has irrevocably deposited or caused to be deposited with such Trustee as trust funds in trust an amount of cash in any combination of currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d), in which case the deposit to be made with respect to Securities for which an election has occurred pursuant to Section 311(b) or a Conversion Event has occurred as provided in Section 311(d), shall be made in the currency or
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currency unit in which such Securities are payable as a result of such election or Conversion Event) sufficient to pay and discharge the entire indebtedness on such Securities and coupons not theretofore delivered to the Trustee for the Securities of that series for cancellation for principal (and premium, if any) and accrued and unpaid interest, if any, to the Stated Maturity or Redemption Date, as the case may be; (B) no Event of Default or event which with the giving of notice or the lapse of time, or both, would become an Event of Default shall have occurred and be continuing on the date of such deposit and no Event of Default under Section 501(4) or Section 501(5) shall have occurred and be continuing on the 123rd day after such date; (C) the Company has paid, or caused to be paid, all sums payable by it under this Indenture; and (D) the Company has delivered irrevocable instructions to the Trustee for the Securities of that series under this Indenture to apply the deposited money toward the payment of such Securities and coupons at the Stated Maturity or the Redemption Date, as the case may be. In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel to the Trustee for the Securities of that series stating that all conditions precedent to satisfaction and discharge have been satisfied.
Section 406. Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this Indenture and of the Securities of a particular series referred to in Sections 401, 402, 404 or 405, the respective obligations of the Company and the Trustee for the Securities of a particular series under Sections 303, 304, 305, 309, 407, 408, 409, 410, and 508, Article Six, and Sections 701, 702, 1002, 1003, 1004 and 1005, shall survive with respect to Securities of that series until the Securities of that series are no longer outstanding, and thereafter the obligations of the Company and the Trustee for the Securities of a particular series with respect to that series under Sections 407, 408, 409, and 410 shall survive. Nothing contained in this Article Four shall abrogate any of the obligations or duties of the Trustee of any series of Securities under this Indenture.
Notwithstanding the satisfaction of the conditions set forth in Sections 404 or 405 with respect to all the Securities of any series not payable in Dollars, upon the happening of any Conversion Event the Company shall be obligated to make the payments in Dollars required by Section 311(d) to the extent that the Trustee is unable to convert any Foreign Currency or currency unit or currency unit in its possession pursuant to Sections 404 or 405 into the Dollar equivalent of such Foreign Currency or currency unit, as the case may be. If, after the deposits referred to in Sections 404 or 405 have been made, (x) the Holder of a Security is entitled to, and does, elect pursuant to Section 311(b) to receive payment in a currency or currency unit other than that in which the deposit pursuant to Sections 404 or 405 was made, or (y) a Conversion Event occurs as contemplated in Section 311(d), then the indebtedness represented by such Security shall be fully discharged to the extent that the deposit made with respect to such Security shall be converted into the currency or currency unit in which such Security is payable. The Trustee shall return to the Company any non-converted funds or securities in its possession after such payments have been made.
Section 407. Acknowledgment of Discharge by Trustee.
Subject to Section 410, after (i) the conditions of Sections 404 or 405 have been satisfied with respect to the Securities of a particular series, (ii) the Company has paid or caused to be
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paid all other sums payable hereunder by the Company and (iii) the Company has delivered to the Trustee for the Securities of that series an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent referred to in clause (i) above relating to the satisfaction and discharge of this Indenture have been complied with, the Trustee for the Securities of that series upon written request shall acknowledge in writing the discharge of all of the Company’s obligations under this Indenture except for those surviving obligations specified in this Article Four.
Section 408. Application of Trust Moneys.
All money and Government Obligations deposited with the Trustee for the Securities of a particular series pursuant to Sections 404 or 405 in respect of the Securities of that series shall be held in trust and applied by it, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of the Securities and all related coupons of all sums due and to become due thereon for principal (and premium, if any) and interest, if any, but such money need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee for the Securities of a particular series against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Sections 404 or 405 with respect to the Securities of that series or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of outstanding Securities of that series.
Section 409. Repayment to the Company; Unclaimed Money.
The Trustee and any Paying Agent for a series of Securities shall promptly pay or return to the Company upon Company Order any cash or Government Obligations held by them at any time that are not required for the payment of the principal of (and premium, if any) and interest, if any, on the Securities and all related coupons for Securities of that series for which cash or Government Obligations have been deposited pursuant to Sections 404 or 405.
Any money deposited with the Trustee or any Paying Agent for the Securities of any series, or then held by the Company, in trust for the payment of the principal of (and premium, if any) and interest, if any, on any Security of any particular series and all related coupons appertaining thereto and remaining unclaimed for two years after such principal (and premium, if any) and interest, if any, has become due and payable shall, unless otherwise required by mandatory provisions of applicable escheat, or abandoned or unclaimed property law, be paid to the Company on Company Request or (if then held by the Company) shall be discharged from such trusts; and the Holder of such Security and all related coupons shall, thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of such Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that such Trustee or such Paying Agent, before being required to make any such repayment may give written notice to the Holder of such Security in the manner set forth in Section 106, that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will, unless otherwise required by mandatory provisions of applicable escheat, or abandoned or unclaimed property law, be repaid to the Company, as the case may be.
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Section 410. Reinstatement.
If the Trustee or Paying Agent for a series of Securities is unable to apply any cash or Government Obligations, as applicable, in accordance with Section 402, 403, 404 or 405 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture and the Securities of that series shall be revived and reinstated as though no deposit had occurred pursuant to Section 402, 403, 404 or 405 until such time as the Trustee or Paying Agent for that series is permitted to apply all such cash or Government Obligations in accordance with Section 402, 403, 404 or 405; provided, however, that if the Company has made any payment of principal (and premium, if any) and interest, if any, on any Securities and any related coupons because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities and such coupons to receive such payment from the cash or Government Obligations, as applicable, held by such Trustee or Paying Agent. In the event the Company’s obligations under this Indenture and the Securities are revived and reinstated pursuant to this Section 410, then the obligations of each Guarantor, if any, under its Note Guarantee and this Indenture that were released pursuant to Section 1405 as a result of the Company’s exercise of its rights under this Article Four shall be revived and reinstated as though such release had not occurred.
ARTICLE 5
Remedies
Section 501. Events of Default.
“Event of Default” wherever used herein with respect to any particular series of Securities means any one of the following events and such other events as may be established with respect to the Securities of such series as contemplated by Section 301 (whatever the reason for such Event of Default and whether it shall be occasioned by the provisions of Article Fifteen or be voluntary or involuntary or be effected by operation of law pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any installment of interest upon any Security of that series and any related coupon when it becomes due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity or default in the deposit of any sinking fund payment when and as due by the terms of any Security of that series; or
(3) default in the performance of, or breach of, any covenant or warranty of the Company or any Guarantor (if any) in respect of any Security of that series contained in this Indenture or in such Securities (other than a covenant or warranty a default in
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whose performance or whose breach is elsewhere in this Section specifically dealt with) and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee for the Securities of such series or to the Company and such Trustee by the Holders of at least 30% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(4) the Company shall commence any case or proceeding seeking to have an order for relief entered on its behalf as debtor or to adjudicate it as bankrupt or insolvent or seeking reorganization, liquidation, dissolution, winding-up, arrangement, composition or readjustment of its debts or any other relief under any bankruptcy, insolvency, reorganization, liquidation, dissolution, arrangement, composition, readjustment of debt or other similar act or law of any jurisdiction, domestic or foreign, now or hereafter existing; or the Company shall apply for a receiver, custodian or trustee (other than any trustee appointed as a mortgagee or secured party in connection with the issuance of indebtedness for borrowed money of the Company) of it or for all or a substantial part of its property; or the Company shall make a general assignment for the benefit of creditors; or the Company shall take any corporate action in furtherance of any of the foregoing; or
(5) an involuntary case or other proceeding shall be commenced against the Company with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect seeking the appointment of a trustee, receiver, liquidator, custodian or similar official of the Company or any substantial part of its property; and such case or other proceeding (A) results in the entry of an order for relief or a similar order against the Company or (B) shall continue unstayed and in effect for a period of 60 consecutive days; or
(6) any other Event of Default provided in the Security or the Board Resolution with respect to Securities of that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any particular series of Securities and any related coupons occurs and is continuing (other than an Event of Default described in Section 501(4) or 501(5) with respect to the Company), then and in every such case either the Trustee for the Securities of such series or the Holders of not less than [30%] in principal amount of the Outstanding Securities of that series may declare the entire principal amount (or, in the case of (i) OID Securities, such lesser amount as may be provided for in the terms of that series or (ii) Indexed Securities, the amount determined in accordance with the specified terms of those Securities) of all the Securities of that series, to be due and payable immediately, by a notice in writing to the Company (and to such Trustee if given by Holders), and upon any such declaration of acceleration such principal or such lesser amount, as the case may be, together with accrued interest and all other amounts owing hereunder, shall become immediately due and payable, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived.
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If any Event of Default specified in Section 501(4) or 501(5) occurs with respect to the Company, all of the unpaid principal amount (or, if the Securities of any series then outstanding are (i) OID Securities, such lesser amount as may be provided for in the terms of that series or (ii) Indexed Securities, the amount determined in accordance with the specified terms of those Securities) and accrued interest on all Securities of each series then outstanding shall ipso facto become and be immediately due and payable without any declaration or other act by the Trustee or any Holder.
At any time after such a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee for the Securities of any series as hereinafter provided in this Article, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and such Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with such Trustee a sum sufficient to pay in the currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d)):
| (A) | all overdue interest on all Securities of that series and any related coupons; |
| (B) | the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and interest thereon from the date such principal became due at a rate per annum equal to the rate borne by the Securities of such series (or, in the case of (i) OID Securities, the Securities’ Yield to Maturity or (ii) Indexed Securities, the rate determined in accordance with the specified terms of those Securities), to the extent that the payment of such interest shall be legally enforceable; |
| (C) | to the extent that payment of such interest is lawful, interest upon overdue interest at a rate per annum equal to the rate borne by the Securities of such series (or, in the case of (i) OID Securities, the Securities’ Yield to Maturity or (ii) Indexed Securities, the rate determined in accordance with the specified terms of those Securities); and |
| (D) | all sums paid or advanced by such Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607; and |
(2) all Events of Default with respect to the Securities of such series, other than the nonpayment of the principal of Securities of that series which has become due solely by such acceleration, have been cured or waived as provided in Section 513. No such rescission shall affect any subsequent default or impair any right consequent thereon.
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Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest upon any Security of any series and any related coupons when such interest becomes due and payable and such default continues for a period of 30 days; or
(2) default is made in the payment of the principal of (or premium, if any, on) any Security of any series at its Maturity;
the Company will, upon demand of the Trustee for the Securities of such series, pay to the Trustee, for the benefit of the Holders of such Securities and coupons, the whole amount then due and payable on such Securities and coupons for principal (and premium if any) and interest, if any, with interest upon the overdue principal (and premium, if any) and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installments of interest at a rate per annum equal to the rate borne by such Securities (or, in the case of (i) OID Securities, the Securities’ Yield to Maturity or (ii) Indexed Securities, the rate determined in accordance with the specified terms of those Securities); and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon such demand, such Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding against the Company for the collection of the sums so due and unpaid, and may prosecute such proceedings to judgment or final decree, and may enforce the same against the Company or any other obligor upon the Securities of such series and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any particular series occurs and is continuing, the Trustee for the Securities of such series may, in its discretion, proceed to protect and enforce its rights and the rights of the Holders of Securities of that series by such appropriate judicial proceedings as such Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relating to the Company or any other obligor upon the Securities of any series or the property of the Company or of such other obligor or their creditors, the Trustee for the Securities of such series (irrespective of whether the principal (or, if the Securities of such series are (i) OID Securities or (ii) Indexed Securities, such amount as may be due and payable with respect to such Securities pursuant to a declaration in accordance with Section 502) of any Security of such series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of
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whether such Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise
(i) to file and prove a claim for the whole amount of principal (or, if the Securities of such series are (i) OID Securities or (ii) Indexed Securities, such amount as may be due and payable with respect to such Securities pursuant to a declaration in accordance with Section 502) (and premium, if any) and interest, if any, owing and unpaid in respect of the Securities of such series and any related coupons and to file such other papers or documents as may be necessary or advisable in order to have the claims of such Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607) and of the Holders of the Securities of such series and any related coupons allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any such judicial proceeding is hereby authorized by each Holder of Securities and coupons to make such payments to such Trustee, and in the event that such Trustee shall consent to the making of such payments directly to the Holders of Securities and coupons, to pay to such Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel, and any other amounts due such Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee for the Securities of any series to authorize or consent to or accept or adopt on behalf of any Holder of a Security or coupon any plan of reorganization, arrangement, adjustment or composition affecting the Securities of such series or the rights of any Holder thereof, or to authorize the Trustee for the Securities or coupons of any series to vote in respect of the claim of any Holder in any such proceeding for the election of a trustee in bankruptcy or other person performing similar functions.
Section 505. Trustee May Enforce Claims Without Possession of Securities or Coupons.
All rights of action and claims under this Indenture or the Securities or coupons of any series may be prosecuted and enforced by the Trustee for the Securities of any series without the possession of any of the Securities or coupons of such series or the production thereof in any proceeding relating thereto, and any such proceeding instituted by such Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607, be for the ratable benefit of the Holders of the Securities and coupons of such series in respect of which such judgment has been recovered.
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Section 506. Application of Money Collected.
Any money collected by the Trustee for the Securities of any series pursuant to this Article with respect to the Securities or coupons of such series shall be applied in the following order, at the date or dates fixed by such Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, if any, upon presentation of the Securities or coupons of such series, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due such Trustee under Section 607;
Second: To the payment of the amounts then due and unpaid upon the Securities and coupons of such series for principal of (and premium, if any) and interest, if any, on such Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities and coupons for principal (and premium, if any) and interest, if any, respectively; and
Third: The balance, if any, to the Company.
Section 507. Limitation on Suits.
No Holder of any Security of any particular series or any related coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) an Event of Default with respect to that series shall have occurred and be continuing and such Holder shall have previously given written notice to the Trustee for the Securities of such series of such default and the continuance thereof;
(2) the Holders of not less than 30% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee for the Securities of such series to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to such Trustee indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) such Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to such Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more Holders of Securities of that series shall have any right in any manner whatsoever by virtue of, or by availing of, any provision of this
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Indenture to affect, disturb or prejudice the rights of any other Holders of Securities of that series, or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all the Holders of Securities of that series.
Section 508. Unconditional Right of Holders to Receive Principal (and Premium, if any) and Interest, if any.
Notwithstanding any other provision in this Indenture, the Holder of any Security or coupon shall have the right which is absolute and unconditional to receive payment of the principal of (and premium, if any) and (subject to Section 307) interest, if any, on such Security on the respective Stated Maturities expressed in such Security or coupon (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee for the Securities of any series or any Holder of a Security or coupon has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to such Trustee or to such Holder, then and in every such case the Company, such Trustee and the Holders of Securities or coupons shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of such Trustee and such Holders shall continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee for the Securities of any series or to the Holders of Securities or coupons is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee for the Securities of any series or of any Holder of any Security of such series to exercise any right or remedy accruing upon any Event of Default with respect to the Securities of such series shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to such Trustee for the Securities or coupons of any series or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by such Trustee or by the Holders, as the case may be.
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Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of any particular series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee for the Securities of such series with respect to the Securities of that series or exercising any trust or power conferred on such Trustee with respect to such Securities, provided that:
(1) such direction shall not be in conflict with any rule of law or with this Indenture, the Securities or any Note Guarantee, and could not involve the Trustee in personal liability; and
(2) such Trustee may take any other action deemed proper by such Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
Except as otherwise specified for a series of Securities pursuant to Section 301 and subject to Section 502, the Holders of not less than a majority in principal amount of the Outstanding Securities of any particular series and any related coupons may on behalf of the Holders of all the Securities of that series waive any past default hereunder with respect to that series and its consequences, except:
(1) a default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of that series; or
(2) a default with respect to a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of that series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security or coupon by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for the Securities or coupons of any series for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee for the Securities of any series, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any particular series or to any suit instituted by any Holder of any Security or coupon for the enforcement of the payment of the principal of
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(or premium, if any) or interest, if any, on any Security of such series or the payment of any coupon on or after the respective Stated Maturities expressed in such Security or coupon (or, in the case of redemption, on or after the Redemption Date).
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee for any series of Securities, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 516. Judgment Currency.
If, for the purpose of obtaining a judgment in any court with respect to any obligation of the Company hereunder or under any Security or any related coupon, it shall become necessary to convert into any other currency or currency unit any amount in the currency or currency unit due hereunder or under such Security or coupon, then such conversion shall be made by the Currency Determination Agent at the Market Exchange Rate as in effect on the date of entry of the judgment (the “Judgment Date”). If pursuant to any such judgment, conversion shall be made on a date (the “Substitute Date”) other than the Judgment Date and there shall occur a change between the Market Exchange Rate as in effect on the Judgment Date and the Market Exchange Rate as in effect on the Substitute Date, the Company agrees to pay such additional amounts, if any, as may be necessary to ensure that the amount paid is equal to the amount in such other currency or currency unit which, when converted at the Market Exchange Rate as in effect on the Judgment Date, is the amount due hereunder or under such Security or coupon. Any amount due from the Company under this Section 516 shall be due as a separate debt and is not to be affected by or merged into any judgment being obtained for any other sums due hereunder or in respect of any Security or coupon. In no event, however, shall the Company be required to pay more in the currency or currency unit due hereunder or under such Security or coupon at the Market Exchange Rate as in effect on the Judgment Date than the amount of currency or currency unit stated to be due hereunder or under such Security or coupon so that in any event the Company’s obligations hereunder or under such Security or coupon will be effectively maintained as obligations in such currency or currency unit, and the Company shall be entitled to withhold (or be reimbursed for, as the case may be) any excess of the amount actually realized upon any such conversion on the Substitute Date over the amount due and payable on the Judgment Date.
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ARTICLE 6
The Trustee
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to the Securities of any series for which the Trustee is serving as such,
(1) such Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against such Trustee; and
(2) in the absence of bad faith on its part, such Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to such Trustee and conforming to the requirements of this Indenture.
(b) In case an Event of Default with respect to a series of Securities has occurred and is continuing, the Trustee for the Securities of such series shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee for Securities of any series from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section;
(2) such Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) such Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any particular series, determined as provided in Section 512, relating to the time, method and place of conducting any proceeding for any remedy available to such Trustee, or exercising any trust or power conferred upon such Trustee, under this Indenture with respect to the Securities of that series; and
(4) no provision of this Indenture shall require the Trustee for any series of Securities to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
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(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee for any series of Securities shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect to Securities of any particular series, the Trustee for the Securities of such series shall give to Holders of Securities of that series, in the manner set forth in Section 106, notice of such default known to such Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of that series, or in the deposit of any sinking fund payment with respect to Securities of that series, such Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of such Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Securities of that series and related coupons. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of that series.
Section 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee for any series of Securities may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, discretion, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order (other than delivery of any Security, together with any coupons appertaining thereto, to the Trustee for authentication and delivery pursuant to Section 303 which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors of the Company may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture such Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, such Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’ Certificate;
(d) such Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) such Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any
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series pursuant to this Indenture for which it is acting as Trustee, unless such Holders shall have offered to such Trustee security or indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) such Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, discretion, consent, order, bond, debenture or other paper or document, but such Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters at it may see fit, and, if such Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company;
(g) the Trustee may employ or retain such counsel, accountants, appraisers or other experts or advisers as it may reasonably require for the purpose of determining and discharging its rights and duties hereunder and shall not be responsible for any misconduct on the part of any of them;
(h) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(i) the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder; and
(k) the Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication thereof and in any coupons shall be taken as the statements of the Company, as the case may be, and neither the Trustee for any series of Securities, nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee for any series of Securities makes no representations as to the validity or sufficiency of this Indenture or of the Securities of any series or coupons, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities, and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Company are
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true and correct, subject to the qualifications set forth therein. Neither the Trustee for any series of Securities nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee for any series of Securities, any Authenticating Agent, Paying Agent, Security Registrar or any other agent of the Company, or such Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not such Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee for any series of Securities in trust hereunder need not be segregated from other funds except as provided in Section 115 and except to the extent required by law. The Trustee for any series of Securities shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company in writing, as the case may be.
Section 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee for each series of Securities as the Company and the Trustee shall agree in writing from time to time such compensation in Dollars for all services rendered by it hereunder as shall be agreed upon in writing from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee for each series of Securities in Dollars upon its request for all reasonable expenses, disbursements and advances incurred or made by such Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify such Trustee, its employees, officers, directors and agents in Dollars for, and to hold them harmless against, any loss, damage, claims, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending themselves against any claim, whether asserted by the Company or any Holder or any other Person, or liability in connection with the exercise or performance of any of their powers or duties hereunder.
As security for the performance of the obligations of the Company under this Section, the Trustee for any series of Securities shall have a lien prior to the Securities upon all property and funds held or collected by such Trustee as such, except funds held in trust for the payment of principal of (and premium, if any) or interest, if any, on particular Securities.
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When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 501(4) or Section 501(5), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law.
Section 608. Disqualification; Conflicting Interests.
The Trustee for the Securities shall be subject to the provisions of Section 310(b) of the Trust Indenture Act during the period of time required thereby. Nothing herein shall prevent the Trustee from filing with the Commission the application referred to in the penultimate paragraph of Section 310(b) of the Trust Indenture Act. In determining whether the Trustee has a conflicting interest as defined in Section 310(b) of the Trust Indenture Act with respect to the Securities of any series, there shall be excluded Securities of any particular series of Securities other than that series.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder for each series of securities which shall be
(i) a corporation or banking company organized and doing business under the laws of the United States of America, any state thereof, or the District of Columbia, authorized under such laws to exercise corporate trust powers, and subject to supervision or examination by Federal or State authority, or
(ii) a corporation or other Person organized and doing business under the laws of a foreign government that is permitted to act as Trustee pursuant to a rule, regulation, or other order of the Commission, authorized under such laws to exercise corporate trust powers, and subject to supervision or examination by authority of such foreign government or a political subdivision thereof substantially equivalent to supervision or examination applicable to United States institutional trustee, having a combined capital and surplus of at least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. Neither the Company nor any Person directly or indirectly controlling, controlled by, or under the common control of the Company shall serve as Trustee for the Securities. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereunder specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee for the Securities of any series and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
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(b) The Trustee for the Securities of any series may resign at any time with respect to the Securities of such series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee for the Securities of such series within 60 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(c) The Trustee for the Securities of any series may be removed at any time with respect to the Securities of such series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to such Trustee and to the Company.
(d) If at any time:
(1) the Trustee for the Securities of any series shall fail to comply with Section 310(b) of the Trust Indenture Act pursuant to Section 608 hereof after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security of such series for at least six months, unless the Trustee’s duty to resign is stayed in accordance with the provisions of Section 310(b) of the Trust Indenture Act, or
(2) such Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(3) such Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of such Trustee or of its property shall be appointed or any public officer shall take charge or control of such Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove such Trustee and appoint a successor Trustee or (ii) subject to Section 514, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor Trustee.
(e) If the Trustee for the Securities of any series shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for the Securities of any series for any cause, the Company, by a Board Resolution, shall promptly appoint a successor Trustee with respect to the Securities of such series and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of such series shall have not been appointed by the Company pursuant to this Section 610, then a successor Trustee may be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee. If no successor Trustee for the Securities of such series shall have been so appointed by the Company or the Holders and shall have accepted appointment in the manner required by Section 611, and
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if such Trustee to be replaced is still incapable of acting, any Holder who has been a bona fide Holder of a Security of such series for at least six months, on behalf of himself and all others similarly situated, or the retiring Trustee, may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series in the manner and to the extent provided in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities of that series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) Every such successor Trustee appointed hereunder with respect to the Securities of any series shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
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(c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in Subsections (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee for the Securities of any series shall be qualified and eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee for the Securities of any series may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of such Trustee, shall be the successor of such Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee or the Authenticating Agent for such series then in office, any successor by merger, conversion or consolidation to such authenticating Trustee or Authenticating Agent, as the case may be, may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee or successor Authenticating Agent had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
The Trustee is subject to Section 311(a) of the Trust Indenture Act, excluding any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent indicated.
Section 614. Authenticating Agents.
At any time when any of the Securities of any series remain Outstanding, the Trustee for the Securities of such series may, subject to its sole discretion, appoint one or more Authenticating Agents with respect to the Securities of such series, which may include the Company or any Affiliate of the Company, with power to act on the Trustee’s behalf and subject to its discretion in the authentication and delivery of Securities of such series in connection with transfers and exchanges under Sections 304, 305 and 1107 as fully to all intents and purposes as though such Authenticating Agent had been expressly authorized by those Sections of this Indenture to authenticate and deliver Securities of such series. For all purposes of this Indenture, the authentication and delivery of Securities of such series by an Authenticating Agent for such Securities pursuant to this Section shall be deemed to be authentication and delivery of such Securities “by the Trustee” for the Securities of such series. Any such Authenticating Agent shall at all times be a corporation organized and doing business under the laws of the United States or
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of any State, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually pursuant to law or the requirements of such supervising or examining authority, then for the purposes of this Section the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent for any series of Securities shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, consolidation or conversion to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate trust business of any Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, if such successor corporation is otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the parties hereto or the Authenticating Agent or such successor corporation.
Any Authenticating Agent for any series of Securities may resign at any time by giving written notice of resignation to the Trustee for such series and to the Company. The Trustee for any series of Securities may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company in the manner set forth in Section 105. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent for any series of Securities shall cease to be eligible under this Section, the Trustee for such series may appoint a successor Authenticating Agent, shall give written notice of such appointment to the Company and shall give written notice of such appointment to all Holders of Securities of such series in the manner set forth in Section 106. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
If an appointment with respect to one or more series of Securities is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certification of authentication, an alternate certificate of authentication in the following form:
“This is one of the Securities of the series designated therein described in the within-mentioned Indenture.
| REGIONS BANK, as Trustee | ||||||||
| By: | By: | |||||||
| As Authenticating Agent | Authorized Signatory | |||||||
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ARTICLE 7
Holders’ Lists and Reports by Trustee and the Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each particular series of Securities, the Company will furnish or cause to be furnished to the Trustee for the Securities of such series,
(a) Semi-annually, not more than 15 days after each Regular Record Date relating to Securities of each series at the time Outstanding (or, if there is no Regular Record Date relating to that series, on June 30 and December 31), a list, in such form as such Trustee may reasonably require, containing all the information in the possession or control of the Company or any of its Paying Agents other than such Trustee as to the names and addresses of the Holders of that series as of such dates,
(b) on semi-annual dates on each year to be determined pursuant to Section 301 if the Securities of such series do not bear interest, a list of similar form and content, and
(c) at such other times as such Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished,
excluding from any such list names and addresses received by such Trustee in its capacity as Security Registrar for the Securities of such series, if so acting.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee for each series of Securities shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of the Securities of such series contained in the most recent lists furnished to such Trustee as provided in Section 701 and the names and addresses of Holders of the Securities of such series received by such Trustee in its capacity as Security Registrar for such series, if so acting. The Trustee for each series of Securities may destroy any list relating to such series of Securities furnished to it as provided in Section 701 upon receipt of a new list relating to such series so furnished.
(b) If three or more Holders of Securities of any particular series (hereinafter referred to as “applicants”) apply in writing to the Trustee for the Securities of any such series, and furnish to such Trustee reasonable proof that each such applicant has owned a Security of that series for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders of Securities of that series with respect to their rights under this Indenture or under the Securities of that series and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then such Trustee shall, within five Business Days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at the time by such Trustee in accordance with Section 702(a), or
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(ii) inform such applicants as to the approximate number of Holders of Securities of that series whose names and addresses appear in the information preserved at the time by such Trustee in accordance with Section 702(a), and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.
If any such Trustee shall elect not to afford such applicants access to that information, such Trustee shall, upon the written request of such applicants, mail to each Holder of Securities of that series whose name and address appears in the information preserved at the time by such Trustee in accordance with Section 702(a), a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to such Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender, such Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of such Trustee, such mailing would be contrary to the best interests of the Holders of Securities of that series or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, such Trustee shall mail copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise such Trustee shall be relieved of any obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities of each series or coupons, by receiving and holding the same, agrees with the Company and the Trustee for the Securities of such series that neither the Company nor such Trustee, nor any agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of the Securities of such series in accordance with Section 702(b), regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 702(b).
Section 703. Reports by Trustee.
(a) Within 60 days after March 15 of each year, the Trustee for the Securities of each series shall mail to each Holder of the Securities of such series entitled to receive reports pursuant to Section 704(3), a brief report dated as of such date that complies with Section 313(a) of the Trust Indenture Act. The Trustee for the Securities of each series shall also comply with Sections 313(b), 313(c) and 313(d) of the Trust Indenture Act.
(b) At the time that the Trustee for the Securities of each series mails such a report to the Holders of Securities of such series, each such Trustee shall file a copy of that report with the Commission and with each stock exchange on which the Securities of that series are listed. The Company shall provide notice to the appropriate Trustee when the Securities of any series are listed on any stock exchange.
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Section 704. Reports by Company.
The Company will:
(1) file with the Trustee for the Securities of such series, within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if the Company is not required to file information, documents or reports pursuant to either of said Sections, then it will file with such Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee for the Securities of such series and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents, and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders of Securities of each series, as provided in Section 703(a), within 30 days after the filing thereof with the Trustee for the Securities of such series, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (1) and (2) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee, subject to Section 601 hereof, is entitled to rely exclusively on Officers’ Certificates).
ARTICLE 8
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation or convey or transfer its properties and assets substantially as an entirety to any Person unless:
(1) either the Company shall be the continuing corporation or the corporation (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer the properties and assets
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of the Company substantially as an entirety shall be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia, and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee for each series of Securities, in form reasonably satisfactory to each such Trustee, the due and punctual payment of the principal of (and premium, if any) and interest, if any, (including all additional amounts, if any, payable pursuant to Section 516) on all the Securities and any related coupons and the performance of every covenant of this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of Default with respect to any series of Securities, and no event which, after notice or lapse of time, or both, would become an Event of Default with respect to any series of Securities, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee for each series of Securities an Officers’ Certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section 802. Successor Person Substituted.
Upon any consolidation or merger, or any conveyance or transfer of the properties and assets of the Company substantially as an entirety in accordance with Section 801, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein and thereafter the predecessor Person shall be relieved of all obligations and covenants under this Indenture, the Securities and any related coupons and, in the event of any such consolidation, merger, conveyance or transfer, the Company as the predecessor Person may thereupon or at any time thereafter be dissolved, wound up, or liquidated.
ARTICLE 9
Supplemental Indentures
Section 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the Company and, if applicable, each of the Guarantors, if any, in each case when authorized by a Board Resolution, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to such Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or any Guarantor, (if any), as the case may be, and the assumption by any such successor of the covenants of the Company or any such Guarantor (if any) herein and in the Securities; or
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(2) to add to the covenants of the Company and, if applicable, the Guarantors, (if any), for the benefit of the Holders of all or any particular series of Securities and any related coupons (and, if such covenants are to be for the benefit of fewer than all series of Securities, stating that such covenants are being included solely for the benefit of such series), or to surrender any right or power herein conferred upon the Company or any such Guarantor (if any); or
(3) to add any additional Events of Default with respect to any or all series of Securities (and, if any such Event of Default applies to fewer than all series of Securities, stating each series to which such Event of Default applies); provided, however, that in respect of any such additional Events of Default, such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may limit the remedies available to the Trustee upon such default or may limit the right of Holders of a majority in aggregate principal amount of that or those series of Securities to which such additional Events of Default apply to waive such default; or
(4) to pledge property to the Trustee as security for the Securities; or
(5) to reflect the addition or release of any Guarantor in accordance with Article Fourteen hereof; or
(6) to add to or to change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal of (or premium, if any) or interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities of other authorized denominations, to provide for the issuance of uncertificated Securities of any series in addition to or in place of any certificated Securities and to make all appropriate changes for such purposes; provided, however, that any such action shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect; or
(7) to change or eliminate any of the provisions of this Indenture, provided, however, that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or
(8) to evidence and provide for the acceptance of appointment hereunder of a Trustee other than Regions Bank as Trustee for a series of Securities and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 609; or
(9) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611(b); or
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(10) to add to the conditions, limitations and restrictions on the authorized amount, form, terms or purposes of issue, authentication and delivery of Securities, as herein set forth, other conditions, limitations and restrictions thereafter to be observed; or
(11) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Section 401; provided, however, that any such action shall not adversely affect the interests of the Holders of Securities of such series and any related coupons or any other series of Securities in any material respect; or
(12) to add to or change or eliminate any provisions of this Indenture as shall be necessary or desirable in accordance with any amendments to the Trust Indenture Act or to maintain the qualification of this Indenture under the Trust Indenture Act; or
(13) to issue and establish the form and terms of any series of Securities with any terms permitted by the Trust Indenture Act whether or not the provisions hereunder specifically permit the terms in this Indenture to be changed; or
(14) to conform any non-conforming language or defined terms in the text of this Indenture or any Securities to any provision of the section “Description of the Notes” contained in the prospectus or other offering document used in connection with the initial sale of such Securities so that such provision in the “Description of Notes” section of such prospectus or other offering document reflects a verbatim recitation of a provision of this Indenture; or
(15) to change any other provisions of this Indenture with respect to any series of Securities; provided, however, that any such action shall not adversely affect the interests of the Holders of Securities of such series and any related coupons or any other series of Securities in any material respect; or
(16) to make any other provisions with respect to matters or questions arising under this Indenture, provided any such provision other shall not adversely affect the Holders of Securities of any series in any material respect; or
(17) to cure any ambiguity or mistake, to correct or supplement any provision herein which may be inconsistent with any other provision herein, to convey, transfer, assign, mortgage or pledge any property to or with the Trustee for the Securities of any series or to surrender any right or power herein conferred upon the Company, or to make any other provisions with respect to matters or questions arising under this Indenture, provided such action shall not adversely affect the interests of the Holders of Securities of any particular series in any material respect.
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Section 902. Supplemental Indentures with Consent of Holders.
The Company and, if applicable, the Guarantors (if any), in each case, when authorized by a Board Resolution, may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of such Securities and any related coupons under this Indenture, but only with the consent of the Holders of more than 50% in aggregate principal amount of the Outstanding Securities of each series of Securities then Outstanding affected thereby, in each case by Act of said Holders of Securities of each such series delivered to the Company, the Guarantors (if any) and the Trustee for Securities of each such series; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon, if any (or, in the case of OID Securities, reduce the rate of accretion of original issue discount), or any premium payable upon the redemption thereof, or reduce the amount of the principal of an OID Security that would be due and payable upon a declaration of acceleration of the Maturity thereof, or provable in bankruptcy, or, in the case of Indexed Securities, reduce the amount payable in accordance with the terms of those Securities upon a declaration of acceleration of Maturity thereof, or provable in bankruptcy, pursuant to Section 502, or change the Place of Payment, or the currency or currency unit in which any Security or the principal or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date); or reduce or alter the method of computation of any amount payable upon redemption, repayment or purchase of any Securities by the Issuer (or the time when such redemption, repayment or purchase may be made); or release any Note Guarantee by any Guarantor (if any) other than as provided in this Indenture (it being understood that any release effected by Section 802 shall not constitute any of the foregoing); or
(2) reduce the percentage in principal amount of the Outstanding Securities of any particular series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture; or
(3) modify any of the provisions of this Section or Section 513, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder of a Security or coupon with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements of Sections 609, 611(b), 901(8) and 901(9); or
(4) modify the provisions of Article Fifteen in a manner adverse to the Holders of Securities.
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A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee for any series of Securities shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Officers’ Certificate and Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and that all conditions to the execution of such supplemental indenture have been satisfied. The Trustee for any series of Securities may, but shall not be obligated to, enter into any such supplemental indenture which affects such Trustee’s own rights, liabilities, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder and of any coupons appertaining thereto shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect. Section 906. Reference in Securities to Supplemental Indentures.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any particular series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee for the Securities of such series, bear a notation in form approved by such Trustee as to any matter provided for in such supplemental indenture. If the Company or the Guarantors (if any) shall so determine, new Securities of any series and any related coupons so modified as to conform, in the opinion the Board of Directors of the Company or the Guarantors (if any), to any such supplemental indenture may be prepared and executed by the Company or the Guarantors (if any) and such Securities may be authenticated and delivered by such Trustee in exchange for Outstanding Securities of such series and any related coupons.
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ARTICLE 10
Covenants
Section 1001. Payment of Principal (and Premium, if any) and Interest, if any.
The Company agrees, for the benefit of each particular series of Securities, that it will duly and punctually pay in the currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d)) the principal of (and premium, if any) and interest, if any, on that series of Securities in accordance with the terms of the Securities of such series, any coupons appertaining thereto and this Indenture. Unless otherwise specified as contemplated by Section 301 with respect to any series of Securities, any interest due on Bearer Securities on or before Maturity shall be payable only upon presentation and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature. The interest, if any, due in respect of any temporary or permanent Global Security, as provided in the terms and conditions of such Security, shall be payable, only upon presentation of such Security to the Trustee thereof for notation thereon of the payment of such interest.
Section 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities the Company will maintain in each Place of Payment for that series an office or agency where Securities of that series may be presented or surrendered for payment, an office or agency where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company with respect to the Securities of that series and this Indenture may be served. If Securities of a series are issuable as Bearer Securities, the Company will maintain (A) an office or agency (which may be the same office or agency) in a Place of payment for that series in the United States where any Registered Securities of that series may be presented or surrendered for payment, where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange, where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served and where Bearer Securities of that series and related coupons may be presented or surrendered for payment in the circumstances described in the following paragraph (and not otherwise), (B) subject to any laws or regulations applicable thereto, in a Place of Payment for that series which is located outside the United States, an office or agency where Securities of that series and related coupons may be presented and surrendered for payment; provided, however, that if the Securities of that series are listed on the Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, the Company will maintain a Paying Agent for the Securities of that series in Luxembourg or any other required city located outside the United States, as the case may be, so long as the Securities of that series are listed on such exchange, and (C) subject to any laws or regulations applicable thereto, in a Place of Payment for that series located outside the United States an office or agency where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange and where notices and demands to or upon the Company in respect of the Securities of that series and
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this Indenture may be served. The Company will give prompt written notice to the Trustee for the Securities of that series of the location, and any change in the location, of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency in respect of any series of Securities or shall fail to furnish the Trustee for the Securities of that series with the address thereof, such presentations (to the extent permitted by law), and surrenders of Securities of that series may be made and notices and demands may be made or served at the Corporate Trust Office of such Trustee, except that Bearer Securities of that series and the related coupons may be presented and surrendered for payment at the offices specified in the Security, and the Company hereby appoints the same as its agent to receive such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to Section 301, no payment of principal (and premium, if any) or interest, if any, on Bearer Securities shall be made at any office or agency of the Company in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States. Payments will not be made in respect of Bearer Securities or coupons appertaining thereto pursuant to presentation to the Company, or its designated Paying Agents within the United States. Notwithstanding the foregoing, payment of principal of (and premium, if any) and interest, if any, on any Bearer Security denominated and payable in Dollars will be made at the office of the Company’s Paying Agent in the United States, if, and only if, payment in Dollars of the full amount of such principal, premium or interest, as the case may be, at all offices or agencies outside the United States maintained for that purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions and the Company has delivered to the Trustee an Opinion of Counsel to that effect.
The Company may also from time to time designate one or more other offices or agencies (in or outside the Place of Payment) where the Securities of one or more series may be presented or surrendered for any or all of the purposes specified above in this Section and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for such purpose. The Company will give prompt written notice to the Trustee for the Securities of each series so affected of any such designation or rescission and of any change in the location of any such office or agency. Unless otherwise specified with respect to any Securities pursuant to Section 301 with respect to a series of Securities, the Company hereby designates as a Place of Payment for each series of Securities the office or agency of the Company in the Borough of Manhattan, the City of New York, and initially appoints the Trustee at its Corporate Trust Office as Paying Agent in such city and as its agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to Section 301, if and so long as the Securities of any series (i) are denominated in a currency other than Dollars or (ii) may be payable in a currency other than Dollars, or so long as it is required under any other provision of the Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, a Currency Determination Agent.
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Section 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any particular series of Securities and any related coupons, it will, on or before each due date of the principal of (and premium, if any) or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d)) sufficient to pay the principal (and premium, if any) and interest, if any, so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee for the Securities of such series of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any particular series of Securities and any related coupons, it will, prior to each due date of the principal of (and premium, if any) or interest, if any, on any such Securities, deposit with a Paying Agent for the Securities of such series a sum (in the currency or currency unit described in the preceding paragraph) sufficient to pay the principal (and premium, if any) and interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled thereto, and (unless such Paying Agent is the Trustee for the Securities of such series) the Company will promptly notify such Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any particular series of Securities other than the Trustee for the Securities of such series to execute and deliver to such Trustee an instrument in which such Paying Agent shall agree with such Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest, if any, on Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give such Trustee notice of any default by the Company (or any other obligor upon the Securities) in the making of any payment of principal (or premium, if any) and interest, if any, on Securities of that series; and
(3) at any time during the continuation of any such default, upon the written request of such Trustee, forthwith pay to such Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee for the Securities of any series all sums held in trust by the Company or such Paying Agent, such sums to be held by such Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to such Trustee, such Paying Agent shall be released from all further liability with respect to such money.
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Section 1004. Statements as to Compliance.
The Company will deliver to the Trustee for each series of Securities, within 120 days after the end of each fiscal year of the Company (beginning with the fiscal year in which the first series of Securities under this Indenture has been issued), a written statement signed by the principal executive officer, principal financial officer or principal accounting officer of the Company stating that:
(1) a review of the activities of the Company and the Guarantors, if any, during such year and of performance under this Indenture has been made under his supervision; and
(2) to the best of his or her knowledge, based on such review, the Company and the Guarantors, if any, is in compliance with all conditions and covenants under this Indenture.
For purposes of this Section, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture.
Section 1005. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any right or franchise if the Board of Directors of the Company shall determine that the preservation thereof is no longer necessary or desirable in the conduct of the business of the Company.
Section 1006. Waiver of Certain Covenants.
The Company and the Guarantors, if any, may omit in any particular instance to comply with any covenant or condition set forth in Sections 1004 and 1005 (and any other covenant or condition in addition to those set forth herein applicable to Securities of any series pursuant to Section 301 hereof), if before or after the time for such compliance the Holders of more than 50% in principal amount of the Outstanding Securities of each series of Securities affected by the omission shall, in each case by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee for the Securities of each series with respect to any such covenant or condition shall remain in full force and effect.
Section 1007. Calculation of Original Issue Discount.
If applicable, the Company shall file with the Trustee promptly at the end of each calendar year (i) a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on Outstanding Securities as of the end of such year and (ii) such other specific information relating to such original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time.
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Section 1008. Statement by Officers as to Default.
The Company shall deliver to the Trustee, within five Business Days after the Company becomes aware of the occurrence of any Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, an Officers’ Certificate setting forth the details of such Event of Default or event and the action which the Company proposes to take with respect thereto.
ARTICLE 11
Redemption of Securities
Section 1101. Applicability of this Article.
Redemption of Securities of any series (whether by operation of a sinking fund or otherwise) as permitted or required by any form of Security issued pursuant to this Indenture shall be made in accordance with such form of Security and this Article; provided, however, that if any provision of any such form of Security shall conflict with any provision of this Article, the provision of such form of Security shall govern.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities of any series shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company of less than all of the Securities of any particular series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee for the Securities of such series) notify such Trustee by Company Request of such Redemption Date and of the principal amount of Securities of that series to be redeemed and shall deliver to such Trustee such documentation and records as shall enable such Trustee to select the Securities to be redeemed pursuant to Section 1103. In the case of any redemption of Securities of any series prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee for Securities of such series with an Officers’ Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities are to be redeemed, the Company may select the series to be redeemed, and if less than all the Securities of any series are to be redeemed, the particular Securities of that series to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee for the Securities of such series, from the Outstanding Securities of that series not previously called for redemption, by such method as such Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series, or any integral multiple thereof) of the principal amount of Securities of that series of a denomination larger than the minimum authorized denomination for Securities of that series pursuant to Section 302 in the currency or currency unit in which the Securities of such series are denominated.
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The Trustee for the Securities of any series to be redeemed shall promptly notify the Company in writing of the Securities of such series selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106 not later than the thirtieth (30th) day and not earlier than the sixtieth (60th) day prior to the Redemption Date, unless as set forth otherwise pursuant to Section 301, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of a particular series are to be redeemed, the identification (and, in the case of partial redemption, the respective principal amounts) of the particular Securities to be redeemed, including the Identifying Number of such Securities,
(4) in case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the Holder will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price will become due and payable upon each such Security or portion thereof, and that interest thereon, if any (or in the case of OID Securities, original issue discount), shall cease to accrue on and after said date,
(6) the place or places where such Securities, together in the case of Bearer Securities with all coupons appertaining thereto, if any, maturing after the Redemption Date are to be surrendered for payment of the Redemption Price,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by all coupons maturing subsequent to the date fixed for redemption or the amount of any such missing coupon or coupons will be deducted from the Redemption Price or security or indemnity satisfactory to the Company, the Trustee for such series and any Paying Agent is furnished, and
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(9) if Bearer Securities of any series are to be redeemed and any Registered Securities of such series are not to be redeemed, and if such Bearer Securities may be exchanged for Registered Securities not subject to redemption on this Redemption Date pursuant to Section 305 or otherwise, the last date, as determined by the Company, on which such exchanges may be made.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee for such Securities in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
Prior to the opening of business on any Redemption Date, the Company shall deposit with the Trustee for the Securities to be redeemed or with a Paying Agent for such Securities (or, if the Company is acting as its own Paying Agent for such Securities, segregate and hold in trust as provided in Section 1003) an amount of money in the currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such Series and except as provided in Sections 311(b) and 311(d)) sufficient to pay the principal amount of (and premium, if any, thereon), and (except if the Redemption Date shall be an Interest Payment Date) any accrued interest on, all the Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified in the currency or currency unit in which the Securities of such series are payable (except as otherwise provided pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d)) and from and after such date (unless the Company shall default in the payment of the Redemption Price) such Securities shall cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below, shall be void. Upon surrender of such Security for redemption in accordance with said notice together with all coupons, if any, appertaining thereto maturing after the Redemption Date, such Security or specified portions thereof shall be paid by the Company at the Redemption Price; provided, however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of coupons for such interest, and provided, further, that unless otherwise specified as contemplated by Section 301, installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.
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If any Bearer Security surrendered for redemption shall not be accompanied by all coupons appertaining thereto maturing after the Redemption Date, such Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing coupons or the surrender of such missing coupon or coupons may be waived by the Company if there is furnished to the Company, the Trustee for such Security and any Paying Agent such security or indemnity as they may require to save the Company, such Trustee and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to such Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest represented by coupons shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Redemption Date at a rate per annum equal to the rate borne by the Security (or, in the case of (i) OID Securities, the Security’s Yield to Maturity or (ii) Indexed Securities, the rate determined in accordance with the specified terms of those Securities).
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be surrendered at the Place of Payment (with, if the Company or the Trustee for such Security so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, and the Security Registrar for such Security duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute and such Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Registered Security or Securities, of any authorized denomination as requested by such Holder, of the same series and having the same terms and provisions and in an aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Registered Security so surrendered.
ARTICLE 12
Sinking Funds
Section 1201. Applicability of this Article.
Redemption of Securities through operation of a sinking fund as permitted or required by any form of Security issued pursuant to this Indenture shall be made in accordance with such form of Security and this Article; provided, however, that if any provision of any such form of Security shall conflict with any provision of this Article, the provision of such form of Security shall govern.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any particular series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of Securities of
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any particular series is herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any particular series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any particular series as provided for by the terms of Securities of that series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption), together in the case of any Bearer Securities of such series with all unmatured coupons appertaining thereto, and (2) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided, however, that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee for such Securities at the principal amount thereof and the amount of such sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 30 days prior to each sinking fund payment date for any particular series of Securities, the Company will deliver to the Trustee for the Securities of such series an Officers’ Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash in the currency or currency unit in which the Securities of that series are payable (except as otherwise specified pursuant to Section 301 for the Securities of that series and except as provided in Sections 311(b) and 311(d)) and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 1202 and shall state the basis for such credit and that such Securities have not previously been so credited and will also deliver to such Trustee any Securities to be so delivered. Such Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE 13
Meetings of Holders of Securities
Section 1301. Purposes for which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a meeting of Holders of Securities of such series may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series.
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Section 1302. Call, Notice and Place of Meetings.
(a) The Trustee for any series of Securities that includes Bearer Securities, may at any time call a meeting of the Holders of Securities of such series for any purpose specified in Section 1301, to be held at such time and at such place in the Borough of Manhattan, The City of New York, or in London, as such Trustee shall determine. Notice of every meeting of Holders of Securities of such series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 106, not less than 20 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding Securities of any such series shall have requested the Trustee for any such series to call a meeting of the Holders of Securities of such series for any purpose specified in Section 1301, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and such Trustee shall not have made the first publication of the notice of such meeting within 30 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place in the Borough of Manhattan, The City of New York, or in London, for such meeting and may call such meeting for such purposes by giving notice thereof as provided in subsection (a) of this Section.
Section 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee for such series and its counsel and any representatives of the Company and its counsel.
Section 1304. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Subject to Section 1305(d), notice of the reconvening of any adjourned meeting shall be given as provided in Section 1302(a), except that such notice need be given
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only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly that Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of that series; provided, however, that except as limited by the proviso to Section 902, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage which is less than a majority in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such series and the related coupons, whether or not present or represented at the meeting.
Section 1305. Determination of Voting Rights; Conduct and Adjournment of Meetings.
(a) Notwithstanding any other provision of this Indenture, the Trustee for any series of Securities that includes Bearer Securities may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of such series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 104 and the appointment of any proxy shall be proved in the manner specified in Section 104 or by having the signature of the person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized by Section 104 to certify to the holding of Bearer Securities. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee for any series of Securities that includes Bearer Securities shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of Securities as provided in Section 1302(b), in which case the Company or the Holders of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting.
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(c) At any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount of Securities of such series held or represented by him as determined in accordance with Section 115; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of holders of Securities of any series duly called pursuant to Section 1302 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting; and the meeting may be held as so adjourned without further notice.
Section 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in triplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 1302 and, if applicable, Section 1304. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee for such series of Securities to be preserved by such Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE 14
Note Guarantees
Section 1401. Guarantee.
(a) Subject to this Article Fourteen, each of the Guarantors, if any, hereby, jointly and severally, unconditionally guarantees to each Holder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, (the “Note Guarantee”) that:
(1) the principal of, premium, if any, and interest on, the Securities will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Securities, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
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(2) in case of any extension of time of payment or renewal of any Securities or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors, if any, will be jointly and severally obligated to pay the same immediately. Each Guarantor, if any, agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The Guarantors, if any, hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor, if any. Each Guarantor, if any, hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Note Guarantee will not be discharged except by complete performance of the obligations contained in the Securities and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors, if any, or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, if any, any amount paid by either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(d) Each Guarantor, if any, agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor, if any, further agrees that, as between the Guarantors (if any) on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article Five hereof, such obligations (whether or not due and payable) will forthwith become due and payable by the Guarantors, if any, for the purpose of this Note Guarantee. The Guarantors, if any, will have the right to seek contribution from any non-paying Guarantor, if any, so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.
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Section 1402. Limitation on Guarantor Liability.
Each Guarantor, if any, and by its acceptance of Securities, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor, if any, not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors, if any, hereby irrevocably agree that the obligations of such Guarantor, if any, will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor, if any, that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor, if any, in respect of the obligations of such other Guarantor, if any, under this Article Fourteen, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance.
Section 1403. Execution and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 1401 hereof, each Guarantor, if any, hereby agrees that a notation of such Note Guarantee substantially in the form attached as Exhibit F hereto will be endorsed by an Officer of such Guarantor, if any, on each Securities authenticated and delivered by the Trustee and that this Indenture will be executed on behalf of such Guarantor, if any, by one of its Officers.
Each Guarantor, if any, hereby agrees that its Note Guarantee set forth in Section 1401 hereof will remain in full force and effect notwithstanding any failure to endorse on each Security a notation of such Note Guarantee.
If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates the Security on which a Note Guarantee is endorsed, the Note Guarantee will be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors, if any.
Section 1404. Guarantors May Consolidate, etc., on Certain Terms.
Except as otherwise provided in Section 1405 hereof, no Guarantor (if any) will, and the Company will not permit any Guarantor (if any) to, consolidate or merge with or into or wind up into (whether or not such Guarantor, if any, is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all its properties or assets in one or more related transactions, to any Person unless: (a) such Guarantor, if any, is the surviving entity or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor, if any) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Guarantor, if any, or such Person, as the case may be, being herein called the “Successor Person”); (b) the
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Successor Person, if other than such Guarantor, if any, expressly assumes all the obligations of such Guarantor, if any, under this Indenture and such Guarantor’s Note Guarantee, if any, pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee; (c) immediately after such transaction, no Default or Event of Default exists; and (d) the Company shall have delivered to the Trustee an Officer’s Certificate and an opinion of counsel, each stating that such consolidation, merger or transfer and such supplemental indentures, if any, comply with this Indenture.
In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Note Guarantee endorsed upon the Securities and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, if any, such successor Person will succeed to and be substituted for the Guarantor, if any, with the same effect as if it had been named herein as a Guarantor, if any. Such successor Person thereupon may cause to be signed any or all of the Note Guarantees to be endorsed upon all of the Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee. All the Note Guarantees so issued will in all respects have the same legal rank and benefit under this Indenture as the
Note Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Note Guarantees had been issued at the date of the execution hereof.
Except as set forth in Article 8 hereof, and notwithstanding clause 2 above, nothing contained in this Indenture or in any of the Securities will prevent any consolidation or merger of a Guarantor, if any, with or into the Company or another Guarantor, if any, or will prevent any sale or conveyance of the property of a Guarantor, if any, as an entirety or substantially as an entirety to the Company or another Guarantor, if any.
Section 1405. Releases.
The Note Guarantee of a Guarantor, if any, will be released:
(a) in connection with any sale or other disposition of all or substantially all the assets of that Guarantor (if any), including by way of merger or consolidation, to a Person that is not (either before or after giving effect to such transaction) the Company or a Company Subsidiary;
(b) in connection with any sale or other disposition of all the Capital Stock of that Guarantor, if any, to a Person that is not (either before or after giving effect to such transaction) the Company or a Company Subsidiary; or
(c) upon Legal Defeasance or Covenant Defeasance or satisfaction and discharge of this Indenture in accordance with Article Four hereof.
Any Guarantor, if any, not released from its obligations under its Note Guarantee as provided in this Section 1405 will remain liable for the full amount of the principal of and interest and premium, if any, on the Securities and for the other obligations of any Guarantor, if any, under this Indenture as provided in this Article Fourteen.
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ARTICLE 15
Subordination of Securities
Section 1501. Agreement to Subordinate.
Except as otherwise specified in a Board Resolution of the Company establishing a series of Securities pursuant to Section 301, the Company, for itself, its successors and assigns, covenants and agrees, and each Holder of Securities by his acceptance thereof, likewise covenants and agrees, that the payment of the principal of (and premium, if any) and interest, if any, on each and all of the Securities is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of all Senior Indebtedness.
Section 1502. Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Securities.
Except as otherwise specified in a Board Resolution of the Company establishing a series of Securities pursuant to Section 301, upon any distribution of assets of the Company upon any dissolution, winding up, liquidation or reorganization of the Company, whether in bankruptcy, insolvency, reorganization or receivership proceedings or upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the Company or otherwise (subject to the power of a court of competent jurisdiction to make other equitable provision reflecting the rights conferred in this Indenture upon the Senior Indebtedness and the holders thereof with respect to the Securities and the holders thereof by a lawful plan of reorganization under Bankruptcy Law):
(a) the holders of all Senior Indebtedness shall be entitled to receive payment in full of the principal thereof (and premium, if any) and interest due thereon before the Holders of the Securities are entitled to receive any payment upon the principal (or premium, if any) or interest, if any, on indebtedness evidenced by the Securities;
(b) any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article Fifteen shall be paid by the liquidating trustee or agent or other person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the principal of (and premium, if any) and interest on the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, shall be
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received by the Trustee or the Holders of the Securities before all Senior Indebtedness is paid in full, such payment or distribution shall be paid over, upon written notice to the Trustee, to the holder of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instrument evidencing any of such Senior Indebtedness may have been issued, ratably as aforesaid, for application to payment of all Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall have been paid in full, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of the Securities shall be subrogated to the rights of the holders of Senior Indebtedness to receive payments or distributions of cash, property or securities of the Company applicable to Senior Indebtedness until the principal of (and premium, if any) and interest, if any, on the Securities shall be paid in full and no such payments or distributions to the Holders of the Securities of cash, property or securities otherwise distributable to the holders of Senior Indebtedness shall, as between the Company, its creditors (other than the holders of Senior Indebtedness), and the Holders of the Securities be deemed to be a payment by the Company to or on account of the Securities. It is understood that the provisions of this Article Fifteen are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities, on the one hand, and the holders of the Senior Indebtedness, on the other hand. Nothing contained in this Article Fifteen or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Company, its creditors (other than the holders of Senior Indebtedness), and the Holders of the Securities, the obligation of the Company, which is unconditional and absolute, to pay to the Holders of the Securities the principal of (and premium, if any) and interest, if any, on the Securities as and when the same shall become due and payable in accordance with their terms, or to affect the relative rights of the Holders of the Securities and creditors of the Company (other than the holders of Senior Indebtedness), nor shall anything herein or in the Securities prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article Fifteen of the holders of Senior Indebtedness in respect of cash, property or securities of the Company received upon the exercise of any such remedy. Upon any payment or distribution of assets of the Company referred to in this Article Fifteen, the Trustee, subject to the provisions of Section 601, shall be entitled to rely upon a certificate of the liquidating trustee or agent or other person making any distribution to the Trustee for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Fifteen.
The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness. The Trustee shall not be liable to any such holder if it shall pay over or distribute to or on behalf of Holders of Securities or the Company moneys or assets to which any holder of Senior Indebtedness shall be entitled by virtue of this Article Fifteen.
If the Trustee or any Holder of Securities does not file a proper claim or proof of debt in the form required in any proceeding referred to above prior to 30 days before the expiration of the time to file such claim in such proceeding, then the holder of any Senior Indebtedness is hereby authorized, and has the right, to file an appropriate claim or claims for or on behalf of such Holder of Securities.
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Section 1503. No Payment on Securities in Certain Circumstances.
Except as otherwise specified in a Board Resolution of the Company establishing a series of Securities pursuant to Section 301,
(a) Upon the maturity of any Senior Indebtedness by lapse of time, acceleration (unless waived, rescinded or annulled) or otherwise, or upon any payment default (with or without the giving of notice or lapse of time or both, in accordance with the terms of the instrument governing such Senior Indebtedness, and without any waiver or forgiveness) with respect to any Senior Indebtedness, all amounts payable thereon shall first be paid in full on such Senior Indebtedness, before any payment is made, directly or indirectly by set off or otherwise, on account of principal of, or interest on, the Securities of such series or to acquire any of the Securities of such series or on account of the redemption provisions of the Securities of such series.
(b) Upon a default with respect to any Senior Indebtedness (other than under circumstances when the terms of paragraph (a) of this Section are applicable), as such default is defined therein or in the instrument under which it is outstanding, permitting the holders to accelerate the maturity thereof, upon written notice thereof given to the Company and the Trustee by or on behalf of holders of such Senior Indebtedness (“Default Notice”), then, unless and until such default shall have been cured or waived by the holders of such Senior Indebtedness or shall have ceased to exist (the “Payment Blockage Period”), no direct or indirect payment shall be made by the Company with respect to the principal of, or interest on, the Securities of such series and the coupons, if any, appertaining thereto or to acquire any of such Securities or on account of the redemption provisions of the Securities of such series and the coupons, if any, appertaining thereto; provided, however, that this paragraph (b) shall not prevent the making of any payment (which is not otherwise prohibited by paragraph (a)) for more than 179 days after the Default Notice shall have been given unless the Senior Indebtedness in respect of which such event of default exists has been declared due and payable in its entirety, in which case no such payment may be made until such acceleration has been rescinded or annulled or such Senior Indebtedness has been paid in full.
(c) If, notwithstanding the foregoing provisions of this Section, any payment on account of principal of, or interest on, the Securities of such series or of any coupon appertaining thereto shall be received by the Trustee, by any Holder or by any Paying Agent (or, if the Company is acting as its own Paying Agent, money for any such payment is segregated and held in trust), then, unless and until such payment is no longer prohibited by this Section, such payment (subject to the provisions of Section 1504) shall be held in trust for the benefit of the holders of Senior Indebtedness and, upon notice to the Trustee or such Paying Agent from the representative of the holders of the Senior Indebtedness and pursuant to the directions of such representative, shall be paid over or delivered to the holders of Senior Indebtedness or their representative(s), ratably according to the aggregate amount remaining unpaid on account of the principal of and interest on the Senior Indebtedness held or represented by each, for application to the payment or prepayment of all Senior Indebtedness remaining unpaid to the extent
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necessary to pay all Senior Indebtedness in full in accordance with its terms, after giving effect to any concurrent payment or distribution or provision therefor to or for the holders of Senior Indebtedness. Promptly after becoming aware thereof, the Company shall give written notice to the Trustee of any event prohibiting payments on account of principal of, or interest on, the Securities of any series and any coupons appertaining thereto and, in such event, shall provide to the Trustee, in the form of an Officers’ Certificate, the names and addresses of the holders of such Senior Indebtedness and their representative(s), if any, the amount of the Senior Indebtedness held by each such holder, any information necessary to calculate the daily or other increase in Senior Indebtedness held by such holders and any other information which the Trustee may reasonably request to comply with this Article. Subject to the provisions of Section 1502 hereof, in the event that the Trustee or the Paying Agent reasonably determines that additional evidence is required with respect to any person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article, the Trustee or the Paying Agent, as the case may be, may request that such person furnish evidence to its reasonable satisfaction as to the extent such person is entitled to participate in such payment or distribution and as to other facts pertinent to the rights of such persons under this Article and if such evidence is not furnished, the Trustee or the Paying Agent, as the case may be, may defer any payment to such person pending judicial determination as to the right of such person to receive such payment.
Section 1504. Payments on Securities Permitted.
Nothing contained in this Indenture or in any of the Securities shall (a) affect the obligation of the Company to make, or prevent the Company from making, at any time except as provided in Sections 1502 and 1503, payments of principal of (or premium, if any) or interest, if any, on the Securities or (b) prevent the application by the Trustee of any moneys deposited with it hereunder to the payment of or on account of the principal of (or premium, if any) or interest, if any, on the Securities, unless the Trustee shall have received at its Corporate Trust Office written notice of any event prohibiting the making of such payment more than two Business Days prior to the date fixed for such payment.
Section 1505. Authorization of Holders to Trustee to Effect Subordination.
Each Holder of Securities by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate any subordination as provided in this Article Fifteen and appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 1506. Notices to Trustee.
Notwithstanding the provisions of this Article or any other provisions of this Indenture, neither the Trustee nor any Paying Agent (other than the Company) shall be charged with knowledge of the existence of any Senior Indebtedness or of any event which would prohibit the making of any payment of moneys to or by the Trustee or such Paying Agent, unless and until the Trustee or such Paying Agent shall have received written notice thereof from the Company or from the holder of any Senior Indebtedness or from the trustee for any such holder, together with proof satisfactory to the Trustee of such holding of Senior Indebtedness or of the authority
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of such trustee; provided, however, that if at least two Business Days prior to the date upon which by the terms hereof any such moneys may become payable for any purpose (including, without limitation, the payment of either the principal (or premium, if any) or interest, if any, on any Security) the Trustee shall not have received with respect to such moneys the notice provided for in this Section 1506, then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such moneys and to apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary, which may be received by it within two Business Days prior to such date. The Trustee shall be entitled to rely conclusively on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness (or a trustee on behalf of such holder) to establish that such a notice has been given by a holder of Senior Indebtedness or a trustee on behalf of any such holder. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article Fifteen, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article Fifteen and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.
Section 1507. Trustee as Holder of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article Fifteen in respect of any Senior Indebtedness at any time held by it to the same extent as any other holder of Senior Indebtedness and nothing elsewhere in this Indenture shall be construed to deprive the Trustee of any of its rights as such holder.
Nothing in this Article Fifteen shall apply to claims of, or payments to, the Trustee under or pursuant to Section 607.
Section 1508. Modifications of Terms of Senior Indebtedness.
Any renewal or extension of the time of payment of any Senior Indebtedness or the exercise by the holders of Senior Indebtedness of any of their rights under any instrument creating or evidencing Senior Indebtedness, including, without limitation, the waiver of default thereunder, may be made or done all without notice to or assent from the Holders of the Securities or the Trustee. No compromise, alteration, amendment, modification, extension, renewal or other change of, or waiver, consent or other action in respect of, any liability or obligation under or in respect of, or of any of the terms, covenants or conditions of any indenture or other instrument under which any Senior Indebtedness is outstanding or of such Senior Indebtedness, whether or not such release is in accordance with the provisions of any applicable document, shall in any way alter or affect any of the provisions of this Article Fifteen or of the Securities relating to the subordination thereof.
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Section 1509. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to in this Article Fifteen, the Trustee and the Holders of the Securities shall be entitled to rely conclusively upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit of creditors, agent or other person making such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the persons entitled to participate in such payment or distribution, the holders of Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Fifteen.
[signature pages follow]
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This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first written above.
| COMMUNITY HEALTH SYSTEMS, INC., Issuer | ||
| By: | ||
| Name: | ||
| Title: | ||
| REGIONS BANK, Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
EXHIBIT A
[LEGEND IF SECURITY IS A GLOBAL SECURITY]
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 305 OF THE INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 309 OF THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF COMMUNITY HEALTH SYSTEMS, INC.
A-1
[FACE OF SECURITY]
| CUSIP | ||||
| [TITLE OF SECURITIES] | ||||
| No. | $ | |||
COMMUNITY HEALTH SYSTEMS, INC.
promises to pay to or registered assigns, the principal sum of Interest Payment Dates [ ] and [ ], commencing on [ ].
Record Dates:[ ] and [ ]
Dated: ,
| COMMUNITY HEALTH SYSTEMS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
Dated: ,
This is one of the Securities referred to
in the within-mentioned Indenture:
[ ],
as Trustee
| By: | ||
| Authorized Signatory | ||
A-2
[Back of Security]
[Insert title of Securities]
[Insert the Global Security Legend, if applicable pursuant to the provisions of the Indenture]
[Insert any legend required by the Internal Revenue Code and the regulations thereunder]
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
| 1. | Interest. |
Community Health Systems, Inc., a Delaware corporation (herein the “Company” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to , or registered assigns, the principal sum of [Dollars] [if other than Dollars, substitute other currency units] on , [if the Security is to bear interest prior to Stated Maturity, insert —, and to pay interest thereon from or from the most recent Interest Payment Date to which interest has been paid or duly provided for], [semiannually] [if other than semi-annual interest at a fixed rate, insert frequency of payment and payment dates] on and in each year, commencing , and at the Stated Maturity thereof, at [if the Security is to bear interest at a fixed rate, insert — the rate of % per annum], [if the Security is to bear interest at a rate determined with reference to one or more formula, refer to description index below] until the principal hereof is paid or made available for payment] [if applicable, insert — , and (to the extent that the payment of such interest shall be legally enforceable) at [if the Security is to bear interest at a fixed rate, insert — the rate of % per annum on any overdue principal and premium and on any overdue installment of interest from the dates such amounts are due until they are paid or made available for payment]. Interest shall be computed on the basis of [a 360-day year of twelve 30-day months] [if another basis of calculating interest is to be different, insert a description of such method.]
| 2. | Method of Payment. |
The Company will pay interest on the Securities on each [ ] and [ ] to the Persons who are registered Holders of the relevant Securities at the close of business on the [ ] or [ ] next preceding the Interest Payment Date, even if such Securities are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 307 of the Indenture with respect to Defaulted Interest. The Securities will be payable as to principal, premium, if any, and interest at the office or agency of the Company maintained for such purpose in [ ], [if applicable, insert —; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the list provided by the Company to the Registrar and provided, further, that if this Security is a Global Security, payment may be made pursuant to the applicable procedures of the Depositary as permitted in said Indenture]. Such payment shall be in such coin or currency of [the United States of America] [insert other currency or currency unit, if applicable] as at the time of payment is legal tender for payment of public and private debts.
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| 3. | Paying Agent and Registrar. |
Initially, the Trustee under the Indenture will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.
| 4. | Indenture. |
This Security is one of a duly authorized issue of Securities of the Company issued and to be issued in one or more series under an Indenture, dated as of , (herein called the “Indenture”), between the Company and , as Trustee (herein called the “Trustee” which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code § 77aaa-77bbbb). The Securities are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Security conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
| 5. | Redemption. |
[If applicable, insert — The Securities of this series are subject to redemption upon not less than 30 days’ notice to the Holders, [if applicable, insert — (1) on in any year commencing with the year and ending with the year through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [if applicable, insert — on or after , ] , as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): if redeemed [if applicable insert — on or before , %, and if redeemed] during the 12-month period beginning of the years indicated,
| Year | Redemption Price | Year | Redemption Price |
and thereafter at a Redemption Price equal to % of the principal amount, together in the case of any such redemption [if applicable, insert — (whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
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[If applicable, insert — The Securities of this series are subject to redemption upon not less than 30 days’ notice to the Holders, (1) on in any year commencing with the year and ending with the year through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert — on or after ], as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning of the years indicated,
| Year |
Redemption Price for Redemption |
Redemption Price for Redemption | ||
and thereafter at a Redemption Price equal to % of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Date referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert — The sinking fund for this series provides for the redemption on in each year beginning with the year and ending with the year of [if applicable, insert — not less than $ (“mandatory sinking fund”) and not more than] $ aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than through [mandatory] sinking fund payments may be credited against subsequent [if applicable, insert — mandatory] sinking fund payments otherwise required to be made [if applicable, insert — in the inverse order in which they become due].]
[If applicable, insert — The Securities are subject to redemption, as a whole at any time or in part from time to time, at the sole election of the Company, upon not less than 35 or more than 75 days’ notice to the Trustee at a Redemption Price equal to $ .]
[If applicable, insert — The Holder of this Security shall have the right to require the Company to pay this Security in full on , by giving the Company or the Registrar written notice of the exercise of such right not less than 30 or more than 60 days prior to such date.]
[If the Security is subject to redemption, insert — In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
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[If applicable, insert — This Security is not subject to redemption prior to maturity.]
| 6. | Denominations, Transfer, Exchange. |
[If applicable, insert — The Securities of this series are issuable only in registered form without coupons in denominations of $ and any integral multiple thereof.] As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same. A Holder may register the transfer or exchange of the Security as provided in the Indenture and subject to certain limitations therein set forth. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture.
[If applicable, insert — The Securities of this series will be represented by one or more Global Securities registered in the name of , (the “Depositary”), or a nominee of the Depositary. So long as the Depositary, or its nominee, is the registered holder and owner of this Global Security, the Depositary or such nominee, as the case may be, will be considered the sole owner and holder of the Securities for all purposes under the Indenture. The Global Security may be transferred, in whole and not in part, only to the Depositary or another nominee of the Depositary. The Depositary will credit, on its book-entry registration and transfer system, the respective principal amounts of the Securities represented by such Global Security to the accounts of institutions that have accounts with the Depositary or its nominee (“participants”). Ownership of beneficial interests in a Global Security will be shown on, and the transfer of those ownership interests will be effected through, records maintained by the Depositary (with respect to participants’ interests) and such participants (with respect to the owners of beneficial interests in such Global Security).]
[If applicable, insert — The Securities represented by this Global Security are exchangeable for Securities in permanent form of like tenor as such Global Security in denominations of $1,000 and in any greater amount that is an integral multiple thereof if (i) the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for this Global Security or if at any time the Depositary ceases to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, (ii) the Company in its discretion at any time determines not to have all of the Securities of this series represented by the Global Security and notifies the Trustee thereof, or (iii) an Event of Default has occurred and is continuing with respect to the Securities. Any Security that is exchangeable pursuant to the preceding sentence is exchangeable only for Securities of this series.]
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
A-6
| 7. | Persons Deemed Owners. |
The registered Holder of a Security may be treated as its owner for all purposes.
| 8. | Amendment, Supplement and Waiver. |
Subject to certain exceptions, the Indenture and the Securities may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the then outstanding Securities of each series affected by such amendment or supplement. Without the consent of any Holder of a Securities of each series affected by such amendment or supplement, the Indenture and the Securities may be amended or supplemented to, among other things, (a) evidence the succession of another person to the Company or any Guarantor and the assumption of such successor to the covenants in the Indenture; (b) add to the covenants of the Company or Guarantors or to surrender any right or power conferred upon the Company or any such Guarantor; (c) add additional Events of Default with respect to any or all series of Securities; (d) pledge property to the Trustee as security for the Securities; (e) reflect the addition or release of any Guarantor in accordance with Article 14 of the Indenture; (f) revise the provisions of the Indenture with respect to Bearer Securities (provided that such action shall not materially and adversely affect the interests of any Holders of Securities); (g) change provisions of the Indenture, such change only effective when there is no Security Outstanding of any series created prior to such change which is entitled to benefit under such provision; (h) evidence acceptance of a successor Trustee pursuant to the requirements of Section 609 or Section 611(b) of the Indenture; (i) add to the conditions of Securities; (j) supplement any provisions to the extent necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Section 401 of the Indenture (provided that such action shall not materially and adversely affect the interests of any Holders of Securities); (k) revise the Indenture as necessary or desirable in accordance with any amendments to the Trust Indenture Act; (l) issue and establish the form and terms of any series of Securities with any terms permitted by the Trust Indenture Act; (m) conform any provisions of the Indenture or any Securities with the Description of Notes; (n) change any provision of the Indenture with respect to any series of Securities (provided that such action shall not materially and adversely affect the interests of any Holders of Securities); (o) change any provision of the Indenture (provided that such action shall not materially and adversely affect the interests of any Holders of Securities); and (p) cure any ambiguity or mistake.
| 9. | Defaults and Remedies. |
Events of Default include: (a) default for 30 days in the payment when due of interest on the Securities; (b) default in payment when due of principal of or premium, if any, on the Securities; (c) failure by the Company for 90 days to comply with certain other agreements in the Indenture or the Securities; and (d) certain events of bankruptcy or insolvency with respect to the Company or any of its Restricted Subsidiaries. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least [30]% in principal amount of the then outstanding Securities may declare all the Securities to be due and payable. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency involving the Company, all outstanding Securities will become due and payable without further action or notice. Holders may not enforce the Indenture or the Securities except as provided in the Indenture. Subject to certain limitations, Holders of a majority in principal amount of the then
A-7
outstanding Securities may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Securities notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest) if it determines that withholding notice is in their interest. The Holders of a majority in aggregate principal amount of the Securities then outstanding by notice to the Trustee may on behalf of the Holders of all of the Securities waive any past Default or Event of Default and its consequences under the Indenture except a Default or Event of Default in the payment of interest on, or the principal of, the Securities or a Default or Event of Default with respect to a covenant or provision of the Indenture that under Article 9 of the Indenture may not be amended without the consent of the Holder of each of the Outstanding Securities. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.
| 10. | Trustee Dealings with Company. |
The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.
| 11. | No Recourse against Others. |
A director, officer, employee, incorporator or stockholder, of the Company, as such, shall not have any liability for any obligations of the Company or the Guarantors under the Securities or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Securities.
| 12. | [If applicable, insert—Guarantees. |
The payment by the Company of the principal of and interest on the Security is fully and unconditionally guaranteed on a joint and several basis by each of the Guarantors on the terms set forth in the Indenture.]
| 13. | Authentication. |
This Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
| 14. | Abbreviations. |
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
A-8
| 15. | CUSIP Numbers. |
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Securities and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Securities or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:
Regions Bank
150 4th Avenue North, Suite 900
Nashville, Tennessee 37219
Attention: Corporate Trust Services
| 16. | GOVERNING LAW. |
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS SECURITY WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.
A-9
ASSIGNMENT FORM
To assign this Security, fill in the form below:
| (I) or (we) assign and transfer this Security to: |
||
| (Insert assignee’s legal name) | ||
| (Insert assignee’s soc. sec. or tax I.D. no.) | ||
| (Print or type assignee’s name, address and zip code) | ||
and irrevocably appoint to transfer this Security on the books of the Company. The agent may substitute another to act for him.
Date:
| Your Signature: | ||
| (Sign exactly as your name appears on the face of this Security) |
Signature
Guarantee*:
| * | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
A-10
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY*
The following exchanges of a part of this Global Security for an interest in another Global Security or for a Definitive Security, or exchanges of a part of another Global Security or Definitive Security for an interest in this Global Security, have been made:
| Principal Amount of or increase) |
Amount of decrease in |
Amount of increase in |
Signature of authorized | |||
| * | This schedule should be included only if the Security is issued in global form. |
A-11
EXHIBIT B
[FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR CLEARSTREAM BANKING BY A BENEFICIAL OWNER OF SECURITIES, IN ORDER TO RECEIVE A DEFINITIVE BEARER SECURITY IN EXCHANGE FOR AN INTEREST IN A TEMPORARY GLOBAL SECURITY OR TO EXCHANGE AN INTEREST IN A TEMPORARY GLOBAL SECURITY FOR AN INTEREST IN A PERMANENT GLOBAL SECURITY]
COMMUNITY HEALTH SYSTEMS, INC.
Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of ● (the “Indenture”) between Community Health Systems, Inc. (the “Company”) and Regions Bank, as Trustee. Terms used herein unless otherwise defined shall have the meanings ascribed to them in the Indenture.
This is to certify that as of the date hereof [and except as provided in the fourth paragraph hereof]*, $__________ principal amount of the above-captioned Securities represented by a temporary Global Security (the “temporary Global Security”) held by you for our account is:
(i) beneficially owned by persons that are not United States persons (as defined below);
(ii) owned by United States person(s) that are (a) foreign branches of United States financial institutions (as defined in United States Treasury Regulation Section 1.165-12(c)(1)(v) (“financial institutions”)) purchasing for their own account or for resale, or (b) United States person(s) who acquired the beneficial interest in the temporary Global Security through foreign branches of United States financial institutions and who hold the beneficial interest in the temporary Global Security through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, for the benefit of the Company, that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as amended, and the regulations thereunder); or
(iii) owned by financial institution(s) for the purpose of resale during the restricted period (as defined in United States Treasury Regulation Section 1.163-5(c)(2)(i)(D)(7)) and, in addition, financial institution(s) described in this clause (iii) (whether or not also described in clause (i) or (ii)), further certify that they have not acquired the beneficial interest in the temporary Global Security for the purpose of resale directly or indirectly to a United States person or to a person within the United States.
“United States person” means a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States and an estate or trust the income of which is subject to United States federal income taxation regardless of its source, and “United States” means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction (including the Commonwealth of Puerto Rico).
B-1
[This certificate excepts and does not relate to $__________ principal amount of the temporary Global Security held by you for our account as to which we are not able to provide a certificate in this form. We understand that exchange of such portion of the temporary Global Security for [definitive Bearer Securities] [interests in a permanent Global Security] cannot be made until we are able to provide a certificate in this form.]* We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the above-captioned Securities held by you for our account if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
We understand that this certificate is required in connection with certain tax laws and regulations in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.
| Dated: | ||||||||
| [Name of Person Making Certification] | ||||||||
| By: | ||||||||
* Delete if inappropriate.
B-2
EXHIBIT C
[FORM OF CERTIFICATE TO BE GIVEN TO THE APPROPRIATE TRUSTEE BY EUROCLEAR OR CLEARSTREAM BANKING REGARDING THE EXCHANGE OF A TEMPORARY GLOBAL SECURITY FOR DEFINITIVE SECURITIES OR FOR A PORTION OF A PERMANENT GLOBAL SECURITY]
COMMUNITY HEALTH SYSTEMS, INC.
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of ● (the “Indenture”) between Community Health Systems, Inc. (the “Company”) and Regions Bank, as Trustee. Terms used herein unless otherwise defined shall have the meanings ascribed to them in the Indenture.
We refer to that portion of the temporary Global Security in respect of the above-captioned Securities which is herewith submitted to be exchanged for [definitive Bearer Securities] [interests in a permanent Global Security] (the “Submitted Portion”) as provided in the Prospectus Supplement dated [insert date of Prospectus Supplement] in respect of such issue. This is to certify that (i) we have received in writing or by tested telex or electronically (in accordance with the requirements of United States Treasury Regulation Section 1.163-5(c)(2)(i)(D)(3)(ii)) a certificate or certificates with respect to the entire Submitted Portion, substantially in the form of Exhibit C to the Indenture, and (ii) the Submitted Portion includes no part of the temporary Global Security excepted in such certificates.
We further certify that as of the date hereof we have not received any notification from any of the persons giving such certificates to the effect that the statements made by them with respect to any part of the Submitted Portion are no longer true and cannot be relied on as of the date thereof.
We understand that this certificate is required in connection with certain tax laws and regulations in the United States of America. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings. Submitted Portion:
U.S. $
Date:
[Euroclear Bank S.A./N.V.] [Clearstream Banking S.A.]
| By: | ||
| * | Delete if inappropriate. |
C-1
EXHIBIT D
[FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR CLEARSTREAM BANKING BY A BENEFICIAL OWNER OF SECURITIES, IN ORDER TO RECEIVE PAYMENT ON A TEMPORARY GLOBAL SECURITY]
COMMUNITY HEALTH SYSTEMS, INC.
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of ? (the “Indenture”) between Community Health Systems, Inc. (the “Company”) and Regions Bank, as Trustee. Terms used herein unless otherwise defined shall have the meanings ascribed to them in the Indenture.
This is to certify that as of the date hereof [and except as provided in the fourth paragraph hereof]*, $__________ principal amount of the above-captioned Securities represented by a temporary Global Security (the “temporary Global Security”) held by you for our account is:
| (i) | beneficially owned by person that are not United States persons (as defined below); |
| (ii) | States financial institutions (as defined in United States Treasury Regulation Section 1.165-12(c)(1)(v) (“financial institutions”)) purchasing for their own account or for resale, or (b) United States person(s) who acquired the beneficial interest in the temporary Global Security through foreign branches of United States financial institutions and who hold the beneficial interest in the temporary Global Security through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, for the benefit of the Company, that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as amended, and the regulations thereunder); or |
| (iii) | owned by financial institution(s) for the purpose of resale during the restricted period (as defined in United States Treasury Regulation Section 1.163-5(c)(2)(i)(D)(7)) and, in addition, financial institution(s) described in this clause (iii) (whether or not also described in clause (i) or (ii)), further certify that they have not acquired the beneficial interest in the temporary Global Security for the purpose of resale directly or indirectly to a United States person or to a person within the United States. |
“United States person” means a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States and an estate or trust the income of which is subject to United States federal income taxation regardless of its source, and “United States” means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction (including the Commonwealth of Puerto Rico).
D-1
[This certificate excepts and does not relate to $__________ principal amount of the temporary Global Security held by you for our account as to which we are not able to provide a certificate in this form. We understand that payments, if any, due with respect to such portion of the temporary Global Security cannot be made until we are able to provide a certificate in this form.]*
We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the above-captioned Securities held by you for our account if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
We understand that this certificate is required in connection with certain tax laws and regulations in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.
| Dated: | ||||||||
| [Name of Person Making Certification] | ||||||||
| By: | ||||||||
| * | Delete if inappropriate. |
D-2
EXHIBIT E
[FORM OF CERTIFICATE TO BE GIVEN TO THE APPROPRIATE TRUSTEE BY EUROCLEAR OR CLEARSTREAM BANKING REGARDING PAYMENT ON A TEMPORARY GLOBAL SECURITY]
COMMUNITY HEALTH SYSTEMS, INC.
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of ● (the “Indenture”) between Community Health Systems, Inc. (the “Company”) and Regions Bank, as Trustee. Terms used herein unless otherwise defined shall have the meanings ascribed to them in the Indenture.
We refer to that portion of the temporary Global Security in respect of the above-captioned Securities for which we hereby request that you make payment to us of the amounts payable on the relevant payment date (the “Submitted Portion”) as provided in the Prospectus Supplement dated [insert date of Prospectus Supplement] in respect of such issue. This is to certify that (i) we have received in writing or by tested telex or electronically (in accordance with the requirements of United States Treasury Regulation Section 1.163-5(c)(2)(i)(D)(3)(ii)) a certificate or certificates with respect to the entire Submitted Portion, substantially in the form of Exhibit E to the Indenture, and (ii) the Submitted Portion includes no part of the temporary Global Security excepted in such certificates.
We further certify that as of the date hereof we have not received any notification from any of the persons giving such certificates to the effect that the statements made by them with respect to any part of the Submitted Portion are no longer true and cannot be relied on as of the date thereof.
We understand that this certificate is required in connection with certain tax laws and regulations in the United States of America. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.
Submitted Portion:
| U.S. $ |
||||||||
| Dated: |
||||||||
| [Euroclear Bank S.A./N.V.]*
[Clearstream Banking S.A.* | ||||||||
| By: | ||||||||
| * | Delete if inappropriate. |
E-2
EXHIBIT F
[FORM OF NOTATION OF NOTE GUARANTEE]
For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture dated as of ● (the “Indenture”) among Community Health Systems, Inc. (the “Company”), the Guarantors party thereto and Regions Bank as trustee (the “Trustee”), (a) the due and punctual payment of the principal of, premium, if any, and interest on, the [Securities], whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on overdue principal of and interest on the [Securities], if any, if lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of any [Securities] or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of [Securities] and to the Trustee pursuant to the Note Guarantee and the Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee. Each Holder of a [Security], by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee, on behalf of such Holder, to take such action as may be necessary or appropriate to effectuate the subordination as provided in the Indenture and (c) appoints the Trustee attorney-in-fact of such Holder for such purpose.
Capitalized terms used but not defined herein have the meanings given to them in the Indenture.
[Name of Guarantor(s)]
| By: | ||
| Name: | ||
| Title: | ||
F-1
Exhibit 4.3
CHS/COMMUNITY HEALTH SYSTEMS, INC.,
Issuer
REGIONS BANK,
Trustee
INDENTURE
Dated as of ●
Senior Debt Securities
CROSS-REFERENCE TABLE*
Reconciliation and tie showing the location in the Indenture dated as of ● of the provisions inserted pursuant to Sections 310 to 318(a), inclusive, of the Trust Indenture Act of 1939, as amended.
| Trust Indenture Act Section | Indenture Section | |||
| Section 310 |
(a)(1) |
609 | ||
| (a)(2) |
609 | |||
| (a)(3) |
Not Applicable | |||
| (a)(4) |
Not Applicable | |||
| (a)(5) |
609 | |||
| (b) |
608 and 610(d) | |||
| (c) |
Not Applicable | |||
| Section 311 |
(a) |
613 | ||
| (b) |
613 | |||
| (c) |
Not Applicable | |||
| Section 312 |
(a) |
701 and 702(a) | ||
| (b) |
702(b) | |||
| (c) |
702(c) | |||
| Section 313 |
(a) |
703(a) | ||
| (b) |
703(b) | |||
| (c) |
703(a) and 703(b) | |||
| (d) |
703(a) | |||
| Section 314 |
(a) |
704 | ||
| (b) |
Not Applicable | |||
| (c) |
102 | |||
| (c)(1) |
102 | |||
| (c)(2) |
102 | |||
| (c)(3) |
Not Applicable | |||
| (d) |
Not Applicable | |||
| (e) |
102 | |||
| Section 315 |
(a) |
601(a) | ||
| (b) |
602 and 703(a)(7) | |||
| (c) |
601(b) | |||
| (d) |
601(c) | |||
| (d)(1) |
601(a)(1) | |||
| (d)(2) |
601(c)(2) | |||
| (d)(3) |
601(c)(3) | |||
| (e) |
514 | |||
| Section 316 |
(a)(1)(A) |
502 and 512 | ||
| (a)(1)(B) |
513 | |||
| (a)(2) |
Not Applicable | |||
| (b) |
508 | |||
* NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
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| Section 317 |
(a)(1) |
503 | ||
| (a)(2) |
504 | |||
| (b) |
1003 | |||
| Section 318 |
(a) |
107 | ||
| (b) |
Not Applicable | |||
| (c) |
107 |
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TABLE OF CONTENTS
| Parties |
1 | |||||
| Recitals |
1 | |||||
| ARTICLE 1 Definitions and Other Provisions of General Application |
1 | |||||
| Section 101. |
Definitions. | 1 | ||||
| Section 102. |
Compliance Certificates and Opinions. | 11 | ||||
| Section 103. |
Form of Documents Delivered to Trustee. | 11 | ||||
| Section 104. |
Acts of Holders. | 12 | ||||
| Section 105. |
Notices, Etc., to Trustee and the Company. | 14 | ||||
| Section 106. |
Notice to Holders; Waiver. | 14 | ||||
| Section 107. |
Conflict with Trust Indenture Act. | 15 | ||||
| Section 108. |
Effect of Headings and Table of Contents. | 15 | ||||
| Section 109. |
Successors and Assigns. | 15 | ||||
| Section 110. |
Separability Clause. | 15 | ||||
| Section 111. |
Benefits of Indenture. | 16 | ||||
| Section 112. |
Governing Law. | 16 | ||||
| Section 113. |
Non-Business Day. | 16 | ||||
| Section 114. |
Immunity of Incorporators, Stockholders, Directors and Officers. | 16 | ||||
| Section 115. |
Certain Matters Relating to Currencies. | 17 | ||||
| Section 116. |
Language of Notices, Etc. | 17 | ||||
| ARTICLE 2 Security Forms |
17 | |||||
| Section 201. |
Forms of Securities. | 17 | ||||
| Section 202. |
Form of Trustee’s Certificate of Authentication. | 18 | ||||
| Section 203. |
Securities in Global Form. | 18 | ||||
| Section 204. |
CUSIP Numbers. | 18 | ||||
| ARTICLE 3 The Securities |
19 | |||||
| Section 301. |
Title; Payment and Terms. | 19 | ||||
| Section 302. |
Denominations and Currencies. | 23 | ||||
| Section 303. |
Execution, Authentication, Delivery and Dating. | 23 | ||||
| Section 304. |
Temporary Securities and Exchange of Securities. | 24 | ||||
| Section 305. |
Registration, Registration of Transfer and Exchange. | 28 | ||||
| Section 306. |
Mutilated, Destroyed, Lost and Stolen Securities and Coupons. | 31 | ||||
| Section 307. |
Payment of Interest; Interest Rights Preserved. | 32 | ||||
| Section 308. |
Persons Deemed Owners. | 34 | ||||
| Section 309. |
Cancellation. | 34 | ||||
| Section 310. |
Computation of Interest. | 35 | ||||
| Section 311. |
Currency and Manner of Payments in Respect of Securities. | 35 | ||||
| Section 312. |
Appointment and Resignation of Currency Determination Agent. | 38 | ||||
| Section 313. |
Ranking. | 39 | ||||
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| ARTICLE 4 Satisfaction and Discharge |
39 | |||||
| Section 401. |
Option to Effect Legal Defeasance or Covenant Defeasance. | 39 | ||||
| Section 402. |
Legal Defeasance and Discharge. | 39 | ||||
| Section 403. |
Covenant Defeasance. | 40 | ||||
| Section 404. |
Conditions to Legal or Covenant Defeasance. | 40 | ||||
| Section 405. |
Satisfaction and Discharge of Indenture. | 41 | ||||
| Section 406. |
Survival of Certain Obligations. | 42 | ||||
| Section 407. |
Acknowledgment of Discharge by Trustee. | 43 | ||||
| Section 408. |
Application of Trust Moneys. | 43 | ||||
| Section 409. |
Repayment to the Company; Unclaimed Money. | 43 | ||||
| Section 410. |
Reinstatement. | 44 | ||||
| ARTICLE 5 Remedies |
44 | |||||
| Section 501. |
Events of Default. | 44 | ||||
| Section 502. |
Acceleration of Maturity; Rescission and Annulment. | 45 | ||||
| Section 503. |
Collection of Indebtedness and Suits for Enforcement by Trustee. | 47 | ||||
| Section 504. |
Trustee May File Proofs of Claim. | 48 | ||||
| Section 505. |
Trustee May Enforce Claims Without Possession of Securities or Coupons. | 48 | ||||
| Section 506. |
Application of Money Collected. | 49 | ||||
| Section 507. |
Limitation on Suits. | 49 | ||||
| Section 508. |
Unconditional Right of Holders to Receive Principal (and Premium, if any) and Interest, if any. | 50 | ||||
| Section 509. |
Restoration of Rights and Remedies. | 50 | ||||
| Section 510. |
Rights and Remedies Cumulative. | 50 | ||||
| Section 511. |
Delay or Omission Not Waiver. | 51 | ||||
| Section 512. |
Control by Holders. | 51 | ||||
| Section 513. |
Waiver of Past Defaults. | 51 | ||||
| Section 514. |
Undertaking for Costs. | 51 | ||||
| Section 515. |
Waiver of Stay or Extension Laws. | 52 | ||||
| Section 516. |
Judgment Currency. | 52 | ||||
| ARTICLE 6 The Trustee |
53 | |||||
| Section 601. |
Certain Duties and Responsibilities. | 53 | ||||
| Section 602. |
Notice of Defaults. | 54 | ||||
| Section 603. |
Certain Rights of Trustee. | 54 | ||||
| Section 604. |
Not Responsible for Recitals or Issuance of Securities. | 55 | ||||
| Section 605. |
May Hold Securities. | 56 | ||||
| Section 606. |
Money Held in Trust. | 56 | ||||
| Section 607. |
Compensation and Reimbursement. | 56 | ||||
| Section 608. |
Disqualification; Conflicting Interests. | 57 | ||||
| Section 609. |
Corporate Trustee Required; Eligibility. | 57 | ||||
| Section 610. |
Resignation and Removal; Appointment of Successor. | 58 | ||||
| Section 611. |
Acceptance of Appointment by Successor. | 59 | ||||
| Section 612. |
Merger, Conversion, Consolidation or Succession to Business. | 60 | ||||
| Section 613. |
Preferential Collection of Claims Against Company. | 60 | ||||
| Section 614. |
Authenticating Agents. | 60 | ||||
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| ARTICLE 7 Holders’ Lists and Reports by Trustee and the Company |
62 | |||||
| Section 701. |
Company to Furnish Trustee Names and Addresses of Holders. | 62 | ||||
| Section 702. |
Preservation of Information; Communications to Holders. | 62 | ||||
| Section 703. |
Reports by Trustee. | 64 | ||||
| Section 704. |
Reports by Company. | 64 | ||||
| ARTICLE 8 Consolidation, Merger, Conveyance or Transfer |
65 | |||||
| Section 801. |
Company May Consolidate, Etc., Only on Certain Terms. | 65 | ||||
| Section 802. |
Successor Person Substituted. | 65 | ||||
| ARTICLE 9 Supplemental Indentures |
66 | |||||
| Section 901. |
Supplemental Indentures without Consent of Holders. | 66 | ||||
| Section 902. |
Supplemental Indentures with Consent of Holders. | 68 | ||||
| Section 903. |
Execution of Supplemental Indentures. | 69 | ||||
| Section 904. |
Effect of Supplemental Indentures. | 69 | ||||
| Section 905. |
Conformity with Trust Indenture Act. | 69 | ||||
| Section 906. |
Reference in Securities to Supplemental Indentures. | 70 | ||||
| ARTICLE 10 Covenants |
70 | |||||
| Section 1001. |
Payment of Principal (and Premium, if any) and Interest, if any. | 70 | ||||
| Section 1002. |
Maintenance of Office or Agency. | 70 | ||||
| Section 1003. |
Money for Securities Payments to be Held in Trust. | 72 | ||||
| Section 1004. |
Statements as to Compliance. | 73 | ||||
| Section 1005. |
Corporate Existence. | 73 | ||||
| Section 1006. |
Waiver of Certain Covenants. | 73 | ||||
| Section 1007. |
Calculation of Original Issue Discount. | 74 | ||||
| Section 1008. |
Statement by Officers as to Default. | 74 | ||||
| ARTICLE 11 Redemption of Securities |
74 | |||||
| Section 1101. |
Applicability of this Article. | 74 | ||||
| Section 1102. |
Election to Redeem; Notice to Trustee. | 74 | ||||
| Section 1103. |
Selection by Trustee of Securities to be Redeemed. | 75 | ||||
| Section 1104. |
Notice of Redemption. | 75 | ||||
| Section 1105. |
Deposit of Redemption Price. | 76 | ||||
| Section 1106. |
Securities Payable on Redemption Date. | 76 | ||||
| Section 1107. |
Securities Redeemed in Part. | 77 | ||||
| ARTICLE 12 Sinking Funds |
78 | |||||
| Section 1201. |
Applicability of this Article. | 78 | ||||
| Section 1202. |
Satisfaction of Sinking Fund Payments With Securities. | 78 | ||||
| Section 1203. |
Redemption of Securities for Sinking Fund. | 78 | ||||
| ARTICLE 13 Meetings of Holders of Securities |
79 | |||||
| Section 1301. |
Purposes for which Meetings May be Called. | 79 | ||||
| Section 1302. |
Call, Notice and Place of Meetings. | 79 | ||||
| Section 1303. |
Persons Entitled to Vote at Meetings. | 79 | ||||
| Section 1304. |
Quorum; Action. | 80 | ||||
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| Section 1305. |
Determination of Voting Rights; Conduct and Adjournment of Meetings. | 80 | ||||
| Section 1306. |
Counting Votes and Recording Action of Meetings. | 81 | ||||
| ARTICLE 14 NOTE GUARANTEES |
82 | |||||
| Section 1401. |
Guarantee. | 82 | ||||
| Section 1402. |
Limitation on Guarantor Liability. | 83 | ||||
| Section 1403. |
Execution and Delivery of Note Guarantee. | 83 | ||||
| Section 1404. |
Guarantors May Consolidate, etc., on Certain Terms. | 84 | ||||
| Section 1405. |
Releases. | 85 | ||||
EXHIBITS
| EXHIBIT A. | Form of Securities. | |
| EXHIBIT B. | Form of Certificate To Be Delivered to Euroclear or Clearstream Banking by a Beneficial Owner of Securities in Order to Receive a Definitive Bearer Security in Exchange for an Interest in a Temporary Global Security or to Exchange an Interest in a Temporary Global Security for an Interest in a Permanent Global Security. | |
| EXHIBIT C. | Form of Certificate To Be GiveN to the Appropriate Trustee by Euroclear or Clearstream Banking Regarding the Exchange of a Temporary Global Security for Definitive Securities or for a Portion of a Permanent Global Security. | |
| EXHIBIT D. | Form of Certificate To Be Delivered to Euroclear or Clearstream Banking by a Beneficial Owner of Securities in Order to Receive Payment on a Temporary Global Security. | |
| EXHIBIT E. | Form of Certificate To Be Given to the Appropriate Trustee by Euroclear or Clearstream Banking Regarding Payment on a Temporary Global Security. | |
| EXHIBIT F. | Form of Notation of Note Guarantee. | |
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INDENTURE dated as of ●, between CHS/COMMUNITY HEALTH SYSTEMS, INC., a corporation duly incorporated and existing under the laws of Delaware and having its principal executive office at 4000 Meridian Boulevard, Franklin, Tennessee 37067 (hereinafter called “the Company”), and REGIONS BANK, an Alabama banking corporation, as Trustee (hereinafter called the “Trustee”).
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its lawful purposes securities (hereinafter called the “Securities”) evidencing its senior indebtedness and has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of the Securities, unlimited as to principal amount, to have such titles, to bear such rates of interest, to mature at such time or times and to have such other provisions as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done, and the Company proposes to do all things necessary to make the Securities, when executed by the Company and authenticated and delivered by the Trustee hereunder and duly issued by the Company, the valid obligations of the Company as hereinafter provided.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or series thereof, as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 101. Definitions.
For all purposes of this Indenture and all Securities issued hereunder, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States, and the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States at the date or time of such computation; and
(4) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Three and Article Six, are defined in those Articles.
“Act”, when used with respect to any Holder, has the meaning specified in Section 104.
“Affiliate” means, with respect to a specified Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control”, when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Authenticating Agent” means any Person authorized to authenticate and deliver Securities on behalf of the Trustee for the Securities of any series pursuant to Section 614.
“Authorized Newspaper” means a newspaper customarily published at least once a day for at least five days in each calendar week and of general circulation in the City of New York, in London and, to the extent the Securities are listed on the Luxembourg Stock Exchange and the Luxembourg Stock Exchange shall so require, in Luxembourg or, if it shall be impracticable in the opinion of the Company to make such publication, in another capital city in Western Europe. Such publication (which may be in different newspapers) is expected to be made in the Eastern edition of The Wall Street Journal, in the London edition of the Financial Times and, if applicable, in the Luxemburger Wort.
“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
“Bearer Security” means any Security established pursuant to Section 201 which is payable to bearer.
“Board of Directors” means:
(1) with respect to the Company, either the board of directors or any duly authorized committee of that board or any director or directors and/or officer or officers to whom that board or committee shall have duly delegated its authority, of the Company;
(2) with respect to any other corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;
(3) with respect to a partnership, the board of directors of the general partner of the partnership;
- 2 -
(4) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and
(5) with respect to any other Person, the board or committee of such Person serving a similar function.
“Board Resolution” means, when used with reference to any Person, (1) a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person, as the case may be, to have been duly adopted by its Board of Directors or the managing member(s) or the managing partner(s) of such Person and to be in full force and effect on the date of such certification, or (2) a certificate signed by the director or directors or officer or officers or managing member(s) or managing partners(s) to whom the Board of Directors shall have duly delegated its authority, and delivered to the Trustee for the Securities of any series.
“Business Day” means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which commercial banks are authorized or required by law, regulation or executive order to close in The City of New York or in the city in which the Corporate Trust Office is located; provided, however, that, with respect to Securities not denominated in Dollars, the day is also not a day on which commercial banks are authorized or required by law, regulation or executive order to close in the Principal Financial Center of the country issuing the Foreign Currency or currency unit or, if the Foreign Currency or currency unit is euro, the day is also a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) System is open; provided, further, that, with respect to LIBOR Securities, the day is also a London Business Day.
“Capital Stock” means, with respect to any Person, shares, interests, rights to purchase, warrants, options, participation or other equivalents of or interests in (however designated) equity of such Person, including any preferred stock, but excluding any debt securities convertible into such equity.
“Certificate of a Firm of Independent Public Accountants” means a certificate signed by any firm of independent public accountants of recognized standing selected by the Company. The term “independent” when used with respect to any specified firm of public accountants means such a firm which (1) is in fact independent, (2) does not have any direct financial interest or any material indirect financial interest in the Company or in any other obligor upon the Securities of any series or in any affiliate of the Company or of such other obligor, and (3) is not connected with the Company or such other obligor or any affiliate of the Company or of such other obligor, as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions, but such firm may be the regular auditors employed by the Company. Whenever it is herein provided that any Certificate of a Firm of Independent Public Accountants shall be furnished to the Trustee for Securities of any series, such Certificate shall state that the signer has read this definition and that the signer is independent within the meaning hereof.
“Code” means the Internal Revenue Code of 1986, as amended, and the regulations thereunder.
- 3 -
“Clearstream Banking” means Clearstream Banking S.A. or its successor.
“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on such date.
“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor corporation.
“Company Request” and “Company Order” mean a written request or order signed in the name of the Company, as the case may be by (1) the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company, as the case may be, or (2) by any two Persons designated in a Company Order previously delivered to the Trustee for Securities of any series by any two of the foregoing officers and delivered to the Trustee for Securities of any series.
“Component Currency” has the meaning specified in Section 311(e).
“Conversion Event” means the unavailability of any Foreign Currency or currency unit due to the imposition of exchange controls or other circumstances beyond the Company’s control.
“Corporate Trust Office” means the office of the Trustee for Securities of any series at which at any particular time its corporate trust business shall be principally administered, which office of Regions Bank, at the date of the execution of this Indenture, is located at 150 4th Avenue North, Suite 900, Nashville, Tennessee 37219, Attention: Corporate Trust Services, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
“corporation” includes corporations, limited liability companies, associations, companies and business trusts.
“coupon” means any interest coupon appertaining to a Bearer Security.
“Currency Determination Agent” means, with respect to Securities of any series, unless otherwise specified in the Securities of any series, a New York Clearing House bank designated pursuant to Section 301 or Section 312.
“Defaulted Interest” has the meaning specified in Section 307.
“Depositary” means, with respect to the Securities of any series issuable or issued in the form of a Global Security, the Person designated as Depositary by the Company pursuant to Section 301 until a successor Depositary shall have become such pursuant to the applicable
- 4 -
provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as used with respect to the Securities of any such series shall mean the Depositary with respect to the Securities of that series.
“Dollars” and the sign “$” mean the currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
“Election Date” has the meaning specified in Section 311(e).
“Euroclear” means Euroclear Bank S.A./N.V. or its successor.
“Event of Default” has the meaning specified in Section 501.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, as in force at the date as of which this Indenture is executed; provided, however, that in the event the Securities Exchange Act of 1934 is amended after such date, “Exchange Act” means, to the extent required by any such amendment, the Securities Exchange Act of 1934 as so amended.
“Exchange Date” has the meaning specified in Section 304.
“Foreign Currency” means a currency issued and actively maintained as a country’s recognized unit of domestic exchange by the government of any country other than the United States or by any recognized confederation or association of such governments, and such term shall include, without limitation, the euro.
“Global Exchange Agent” has the meaning specified in Section 304.
“Global Securities” means Securities in global form.
“Government Obligations” means securities which are (i) direct obligations of the government which issued the currency in which the Securities of a particular series are payable (except as provided in Sections 311(b) and 311(d), in which case with respect to Securities for which an election has occurred pursuant to Section 311(b), or a Conversion Event has occurred as provided in Section 311(d), such obligations shall be issued in the currency or currency unit in which such Securities are payable as a result of such election or Conversion Event) or (ii) obligations of a Person controlled or supervised by or acting as an agency or instrumentality of the government which issued the currency in which the Securities of such series are payable (except as provided in Sections 311(b) and 311(d), in which case with respect to Securities for which an election has occurred pursuant to Section 311(b), or a Conversion Event has occurred as provided in Section 311(d)), such obligations shall be issued in the currency or currency unit in which such Securities are payable as a result of such election or Conversion Event), the payment of which is unconditionally guaranteed by such government, which, in either case, are full faith and credit obligations of such government payable in such currency and are not callable or redeemable at the option of the issuer thereof.
“Guarantors” means any Subsidiary of the Company and any Parent or other Affiliate of the Company who specified in a Board Resolution of the Company establishing a series of
- 5 -
Securities pursuant to Section 301 hereof, for the purpose of providing a Note Guarantee of Securities pursuant to this Indenture until (a) a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Guarantors” shall mean such successor Person or (b) such Person shall have been released from its Note Guarantee pursuant to the provisions of this Indenture.
“Holder” means, when used with respect to any Security, in the case of a Registered Security, the Person in whose name a Security is registered in the Security Register, and in the case of a Bearer Security, the bearer thereof and, when used with respect to any coupon, means any bearer thereof.
“Identifying Numbers” has the meaning specified in Section 204.
“Incur” means issue, create, assume, guarantee, incur or otherwise become liable for; and the terms “Incurred” and “Incurrence” have meanings correlative to the foregoing.
“Indenture” means this instrument as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of a particular series of Securities established as contemplated by Section 301.
“Indexed Security” means any Security as to which the amount of payments of principal (and premium, if any) and/or interest, if any, due thereon is determined with reference to the rate of exchange between the currency or currency unit in which the Security is denominated and any other specified currency or currency unit, to the relationship between two or more currencies or currency units, to the price of one or more specified securities or commodities, to one or more securities or commodities exchange indices or other indices or by other similar methods or formulas, all as specified in accordance with Section 301.
“interest” means, when used with respect to an OID Security which by its terms bears interest only after Maturity, interest payable after Maturity.
“Interest Payment Date” means, when used with respect to any Security, the Stated Maturity of an installment of interest on such Security.
“Issue Date” means the date on which the Securities of a particular series are originally issued under this Indenture.
“Judgment Date” has the meaning specified in Section 516.
“LIBOR” means, with respect to any series of Securities, the rate specified as LIBOR for such Securities in accordance with Section 301.
“LIBOR Currency” means the currency specified pursuant to Section 301 as to which LIBOR will be calculated or, if no currency is specified pursuant to Section 301, Dollars.
“LIBOR Security” means any Security which bears interest at a floating rate calculated with reference to LIBOR.
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“London Business Day” means, with respect to any LIBOR Security, a day on which commercial banks are open for business, including dealings in the LIBOR Currency, in London.
“Luxembourg Stock Exchange” means, unless specified with respect to any particular series of Securities, the Luxembourg Stock Exchange.
“Market Exchange Rate” means, with respect to any Foreign Currency or currency unit on any date, unless otherwise specified in accordance with Section 301, the noon buying rate in The City of New York for cable transfers in such Foreign Currency or currency unit as certified for customs purposes by the Federal Reserve Bank of New York for such Foreign Currency or currency unit.
“Maturity” means, when used with respect to any Security, the date on which the principal (or, if the context so requires, in the case of an OID Security, a lesser amount or, in the case of an Indexed Security, an amount determined in accordance with the specified terms of that Security) of that Security becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, request for redemption, repayment at the option of the holder, pursuant to any sinking fund or otherwise.
“Note Guarantee” has the meaning stated in Section 1401.
“Notice of Default” has the meaning specified in Section 501(3).
“Officers’ Certificate” means, when used with reference to the Company, a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the Chief Executive Officer, the President or a Vice President (any reference herein to a Vice President of the Company, as the case may be, shall be deemed to include any Vice President of the Company, as the case may be, whether or not designated by a number or a word or words added before or after the title “Vice President”), and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company, as the case may be, and delivered to the Trustee for the Securities of any series.
“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel to the Company or any Subsidiary of the Company.
“OID Security” means a Security which provides for an amount (excluding any amounts attributable to accrued but unpaid interest thereon) less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.
“Outstanding” means, when used with respect to Securities, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee for such Securities or delivered to such Trustee for cancellation;
(2) Securities or portions thereof for whose payment or redemption money in the necessary amount and in the required currency or currency unit has been theretofore
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deposited with the Trustee for such Securities or any Paying Agent (other than the Company or any Guarantor (if any) or other obligor upon the Securities) in trust or set aside and segregated in trust by the Company or any Guarantor (if any) or other obligor upon the Securities (if the Company or any Guarantor (if any) or other obligor upon the Securities shall act as its own Paying Agent) for the Holders of such Securities; provided, however, that, if such Securities or portions thereof are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture, or provision therefor satisfactory to such Trustee has been made; and
(3) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented proof satisfactory to the Trustee for such Securities that any such Securities are held by a bona fide holder in due course;
provided, however, that in determining whether the Holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, (a) Securities owned by the Company, the Guarantors (if any) or any other obligor upon the Securities or any Affiliate of the Company, the Guarantors (if any) or such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee for such Securities shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of such Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of such Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company, the Guarantors (if any) or any other obligor upon the Securities or any Affiliate of the Company, the Guarantors (if any) or of such other obligor, (b) the principal amount of an OID Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration pursuant to Section 502 and (c) the principal amount of a Security denominated in a Foreign Currency or currency unit that shall be deemed to be outstanding for such purposes shall be determined in accordance with Section 115.
“Parent” means Community Health Systems, Inc., a Delaware corporation, and its successors or any other direct or indirect parent of the Company.
“Paying Agent” means Regions Bank, or any other Person authorized by the Company to pay the principal of (and premium, if any) or interest, if any, on any Securities of any series on behalf of the Company.
“Person” means any individual, firm, corporation, partnership, association, joint venture, tribunal, limited liability company, trust, government or political subdivision or agency or instrumentality thereof, or any other entity or organization.
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“Place of Payment” means, when used with respect to the Securities of any particular series, the place or places where the principal of (and premium, if any) and interest, if any, on the Securities of that series are payable, as contemplated by Section 301 and 1002.
“Predecessor Security” means, with respect to any particular Security, every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security, and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a mutilated, destroyed, lost or stolen coupon appertains shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Security or the Security to which the mutilated, destroyed, lost or stolen coupon appertains, as the case may be.
“Principal Financial Center” means, unless otherwise specified in accordance with Section 301:
(1) the capital city of the country issuing the Foreign Currency or currency unit, except that with respect to Dollars, Australian dollars, Canadian dollars, South African rand and Swiss francs, the “Principal Financial Center” will be The City of New York, Sydney and Melbourne, Toronto, Johannesburg and Zurich, respectively, and with respect to Euros, the “Principal Financial Center” will be London; or
(2) the capital city of the country to which the LIBOR Currency relates, except that with respect to Dollars, Canadian dollars, South African rand and Swiss francs, the “Principal Financial Center” will be The City of New York, Toronto, Johannesburg and Zurich, respectively, and with respect to Euros, the “Principal Financial Center” will be London.
“Property” means any asset, revenue or any other property, including Capital Stock, whether tangible or intangible, real or personal, including, without limitation, any right to receive income.
“Redemption Date” means, when used with respect to any Security to be redeemed in whole or in part, the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price” means, when used with respect to any Security to be redeemed, the price at which it is to be redeemed pursuant to the terms of this Indenture or in any Security issued hereunder.
“Registered Security” means any Security established pursuant to this Indenture which is registered in the Security Register.
“Regular Record Date” means, with respect to the interest payable on any Interest Payment Date on the Registered Securities of any series, the date, if any, specified for that purpose as contemplated by Section 301 whether or not a Business Day.
“Responsible Officer” means, when used with respect to the Trustee for any series of Securities, (i) any vice president, assistant vice president, treasurer, assistant treasurer or any trust officer of the Trustee who shall have direct responsibility for the administration of the trust
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created by this Indenture or (ii) any other officer of the Corporate Trust Department of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject and who is charged with the administration of this Indenture.
“Securities” means securities evidencing indebtedness of the Company authenticated and delivered under this Indenture.
“Security Register” and “Security Registrar” have the respective meanings specified in Section 305.
“series” of Securities means all Securities denoted as part of the same series authorized by or pursuant to a particular Board Resolution.
“Special Record Date” means, with respect to the payment of any Defaulted Interest on the Registered Securities of any series, a date fixed by the Trustee for such series pursuant to Section 307.
“Stated Maturity” means, when used with respect to any Security or any installment of principal thereof or interest thereon, the date specified in such Security or a coupon representing such installment of interest as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of capital stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person, (ii) such Person and one or more Subsidiaries of such Person or (iii) one or more Subsidiaries of such Person.
“Substitute Date” has the meaning specified in Section 516.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, as in force at the date as of which this Indenture was executed; provided, however, that in the event the Trust Indenture Act is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument and, subject to the provisions of Article Six hereof, shall also include its successors and assigns as Trustee hereunder. If there shall be at one time more than one Trustee hereunder, “Trustee” shall mean each such Trustee and shall apply to each such Trustee only with respect to those series of Securities with respect to which it is serving as Trustee.
“United States” means, unless otherwise specified with respect to Securities of any series, the United States of America (including the states and the District of Columbia), its territories, its possessions (which include, at the date of this Indenture, Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands) and other areas subject to its jurisdiction.
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“Yield to Maturity” means, when used with respect to any OID Security, the yield to maturity, if any, set forth on the face thereof.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee for any series of Securities to take any action under any provision of this Indenture or any supplement hereto, the Company shall furnish to such Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with, and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate (other than certificates provided pursuant to Section 1004) or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, or a certificate or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the opinion, certificate or representations with respect to matters upon which his certificate or opinion is based are erroneous.
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Any such Opinion of Counsel or certificate or representations may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing. If Securities of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of such series may, alternatively, be embodied in and evidenced by the record of Holders of Securities of such series voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly called and held in accordance with the provisions of Article Thirteen, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee for the appropriate series of Securities and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee for the appropriate series of Securities and the Company and any agent of such Trustee or the Company, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 1306.
The Company may at its discretion set a record date for purposes of determining the identity of Holders of Registered Securities entitled to vote or consent to any action by vote or consent authorized or permitted under this Indenture, but the Company shall have no obligation to do so. If not set by the Company prior to the first solicitation of Holders of Registered Securities of a particular series made by any Person in respect of any such action, or, in the case of any such vote, prior to such vote, the record date for any such action or vote shall be 30 days prior to the first solicitation of such vote or consent. Upon the fixing of such a record date, those persons who were Holders of Registered Securities at such record date (or their duly designated
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proxies), and only those persons, shall be entitled with respect to such Registered Securities to take such action by vote or consent or to revoke any vote or consent previously given, whether or not such persons continue to be Holders after such record date.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by an officer of a corporation or association or a member of a partnership, or an official of a public or governmental body, on behalf of such corporation, association, partnership or public or governmental body or by a fiduciary, such certificate or affidavit shall also constitute sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee for the appropriate series of Securities deems reasonably sufficient.
(d) The principal amount and serial numbers of Registered Securities held by any Person, and the date of holding the same, shall be proved by the Security Register.
(e) The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may be proved by the production of such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary, wherever situated, if such certificate shall be deemed by the Trustee for such Securities to be satisfactory, showing that at the date therein mentioned such Person had on deposit with such depositary, or exhibited to it, the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by such Trustee to be satisfactory. The Trustee for such Securities and the Company may assume that such ownership of any Bearer Security continues until (1) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, (2) such Bearer Security is produced to such Trustee by some other Person, (3) such Bearer Security is surrendered in exchange for a Registered Security, or (4) such Bearer Security is no longer Outstanding. The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may also be proved in any other manner which the Company and the Trustee for such Securities deem sufficient.
(f) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee for such Securities, the Security Registrar, any Paying Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
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(g) For purposes of this Indenture, any action by the Holders which may be taken in writing may be taken by electronic means or as otherwise reasonably acceptable to the Trustee for the appropriate series of Securities.
Section 105. Notices, Etc., to Trustee and the Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other documents provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee for a series of Securities by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with such Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration, Re: Community Health Systems, Inc., or if sent by facsimile transmission, to a facsimile number provided by the Trustee, with a copy mailed, first class postage prepaid to the Trustee addressed to it as provided above, or
(2) the Company or any of the Guarantors (if any) by such Trustee or by any Holder shall be sufficient for every purpose hereunder (except as provided in paragraph (3) of Section 501) if furnished in writing and mailed, first class postage prepaid, addressed in the case of the Company to it, to the attention of the General Counsel, at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to such Trustee by the Company, or if sent by facsimile transmission, to a facsimile number provided to the Trustee by the Company, with a copy mailed, first class postage prepaid, to the Company, and the Guarantors (if any), as the case may be, addressed to it or them as provided above.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, (1) such notice shall be sufficiently given (unless otherwise herein expressly provided) to Holders of Registered Securities if in writing and mailed, first class postage prepaid, to each Holder affected by such event, at his or her address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice or as otherwise permitted by the Trustee; and (2) such notice shall be sufficiently given (unless otherwise herein expressly provided) to Holders of Bearer Securities if published in (a) an Authorized Newspaper on a Business Day or (b) an electronic medium easily accessible by the Holders as may be specified by the Company to such Holders, such publication to be not earlier than the earliest date, and not later than the latest date, prescribed herein for the giving of such notice. Any such notice by publication shall be deemed to have been given on the date of such publication or, if published more than once, on the date of the first publication.
In any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Registered Security shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein. Any notice mailed in the manner prescribed by this Indenture shall be
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conclusively deemed to have been given whether or not received by any particular Holder. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders of Registered Securities by mail, then such notification as shall be made with the reasonable approval of the Trustee for such Securities shall constitute a sufficient notification for every purpose hereunder.
In case by reason of the suspension of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be made with the reasonable approval of the Trustee for such Securities shall constitute sufficient notice to such Holders for every purpose hereunder. Neither the failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any notice to Holders of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee for such Securities, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture Act through the operation of Section 318(c) thereof, such imposed duties shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the provision shall be deemed to apply to this Indenture as so modified or excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities or coupons shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
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Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities or in any coupons appertaining thereto, expressed or implied, shall give to any Person, other than the parties hereto, any Paying Agent, any Security Registrar, an Authenticating Agent and their successors hereunder and the Holders of Securities or coupons, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 113. Non-Business Day.
Unless otherwise stated with respect to Securities of any series, in any case where any Interest Payment Date, Redemption Date or Stated Maturity of a Security of any particular series shall not be a Business Day at any Place of Payment with respect to Securities of that series, then (notwithstanding any other provision of this Indenture or of the Securities or coupons) payment of principal of (and premium, if any) and interest, if any, with respect to such Security need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
Section 114. Immunity of Incorporators, Stockholders, Directors and Officers.
No recourse shall be had for the payment of the principal of (and premium, if any), or the interest, if any, on any Security or coupon of any series, or for any claim based thereon, or upon any obligation, covenant or agreement of this Indenture, against any incorporator, stockholder, director, officer or employee, as such, past, present or future, of the Company or of any successor of the Company, either directly or indirectly through the Company or any successor of the Company or any Guarantor (if any) or any successor of any Guarantor (if any), whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment of penalty or otherwise; it being expressly agreed and understood that this Indenture and all the Securities and coupons of each series and any related Note Guarantees are solely corporate obligations, and that no personal liability whatever shall attach to, or is incurred by, any incorporator, stockholder, director, officer or employee, past, present or future, of the Company or any successor of the Company or any Guarantor (if any) of any successor of any Guarantor (if any), either directly or indirectly through the Company or any successor of the Company or any Guarantor (if any) or any successor of any Guarantor (if any), because of the incurring of the indebtedness hereby authorized or under or by reason of any of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or coupons of any series or any Note Guarantees related thereto, or to be implied herefrom or therefrom; and that all such personal liability is hereby expressly released and waived as a condition of, and as part of the consideration for, the execution of this Indenture and the issuance of the Securities and coupons of each series and the Note Guarantees related thereto.
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Section 115. Certain Matters Relating to Currencies.
Subject to Section 311, each reference to any currency or currency unit in any Security, or in the Board Resolution or supplemental indenture relating thereto, shall mean only the referenced currency or currency unit and no other currency or currency unit.
The Trustee shall segregate moneys, funds and accounts held by the Trustee in one currency or currency unit from any moneys, funds or accounts held in any other currencies or currency units, notwithstanding any provision herein which would otherwise permit the Trustee to commingle such amounts.
Whenever any action or Act is to be taken hereunder by the Holders of Securities denominated in a Foreign Currency or currency unit, then for purposes of determining the principal amount of Securities held by such Holders, the aggregate principal amount of the Securities denominated in a Foreign Currency or currency unit shall be deemed to be that amount of Dollars that could be obtained for such principal amount on the basis of a spot rate of exchange specified to the Trustee for such series in an Officers’ Certificate for such Foreign Currency or currency unit into Dollars as of the date the taking of such action or Act by the Holders of the requisite percentage in principal amount of the Securities is evidenced to such Trustee.
Section 116. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, and any published notice may also be in an official language of the country of publication.
ARTICLE 2
Security Forms
Section 201. Forms of Securities.
The Registered Securities, if any, of each series and the Bearer Securities, if any, of each series and related coupons shall be substantially in the form (including global form) of Exhibit A to this Indenture or in such other form as shall be established by or pursuant to a Board Resolution of the Company, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or any indenture supplemental hereto and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as the Company may reasonably deem appropriate and as may be required to comply with any law, with any rule or regulation made pursuant thereto, with any rules of any securities exchange, automated quotation system or clearing agency or to conform to usage, as may, consistently herewith, be determined by the officers executing such Securities or coupons, as evidenced by their execution of such Securities or coupons. If temporary Securities of any series are issued in global form as permitted by Section 304, the form thereof shall be established as provided in the preceding sentence.
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Unless otherwise specified as contemplated by Section 301, Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed, lithographed or engraved or produced by any combination of these methods on a steel engraved border or steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities or coupons, as evidenced by their execution thereof.
Section 202. Form of Trustee’s Certificate of Authentication.
Subject to Section 614, the Certificate of Authentication on all Securities shall be in substantially the following form:
This is one of the Securities of the series designated therein described in the within-mentioned Indenture.
| REGIONS BANK, as Trustee | ||
| By: | ||
| Authorized Signatory | ||
Section 203. Securities in Global Form.
If any Security of a series is issuable in global form, such Security may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be increased or reduced to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee and in such manner as shall be specified in such Security. Any instructions by the Company with respect to a Security in global form, after its initial issuance, shall be in writing but need not comply with Section 102.
Global Securities may be issued in either registered or bearer form and in either temporary or permanent form.
Any Security issued in global form shall bear the legends as set forth in Exhibit A to this Indenture.
Section 204. CUSIP Numbers.
The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use) or other identifying numbers (“Identifying Numbers”) and, if so, the Trustee shall use such
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Identifying Numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such Identifying Numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identifying numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the Identifying Numbers.
ARTICLE 3
The Securities
Section 301. Title; Payment and Terms.
The aggregate principal amount of Securities which may be authenticated and delivered and Outstanding under this Indenture is unlimited. The Securities may be issued up to the aggregate principal amount of Securities from time to time authorized by or pursuant to Board Resolutions of the Company.
The Securities may be issued in one or more series, each of which shall be issued pursuant to Board Resolutions of the Company. There shall be established in one or more Board Resolutions or pursuant to one or more Board Resolutions of the Company and, subject to Section 303, set forth in, or determined in the manner provided in, an Officer’s Certificate of the Company, or established in one or more supplemental indentures hereto, prior to the issuance of Securities of any series all or any of the following, as applicable (each of which, if so provided, may be determined from time to time by the Company with respect to unissued Securities of that series and set forth in the Securities of that series when issued from time to time):
(1) the title of the Securities of that series (which shall distinguish the Securities of that series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of that series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series pursuant to Section 304, 305, 306, 906 or 1107) and whether that series may be reopened for additional Securities of that series; in the event that such series of Securities may be reopened from time to time for issuance of additional Securities of such series, the terms thereof shall indicate whether any such additional Securities shall have the same terms as the prior Securities of such series or whether the Company may establish additional or different terms with respect to such additional Securities;
(3) whether Securities of that series are to be issuable as Registered Securities, Bearer Securities or both and any restrictions on the exchange of one form of Securities for another and on the offer, sale and delivery of the Securities in either form;
(4) the date or dates (or manner of determining the same) on which the principal of the Securities of that series is payable (which, if so provided in such Board Resolutions, may be determined by the Company from time to time and set forth in the Securities of the series issued from time to time);
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(5) the rate or rates (or the manner of calculation thereof) at which the Securities of that series shall bear interest (if any), the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable (or manner of determining the same) and the Regular Record Date for the interest payable on any Registered Securities on any Interest Payment Date and the extent to which, or the manner in which, any interest payable on a temporary Global Security on an Interest Payment Date will be paid if other than in the manner provided in Section 307;
(6) the place or places where, subject to the provisions of Section 1002, the principal of (and premium, if any) and interest, if any, on Securities of that series shall be payable, any Registered Securities of that series may be surrendered for registration of transfer, any Securities of that series may be surrendered for exchange, and notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served;
(7) the period or periods within which (or manner of determining the same), the price or prices at which (or manner of determining the same), the currency or currency unit in which, and the terms and conditions upon which Securities of that series may be redeemed, in whole or in part, at the option of the Company, and any remarketing arrangements with respect to the Securities of that series;
(8) the obligation, if any, of the Company to redeem, repay or purchase Securities of that series pursuant to any sinking fund or analogous provisions, upon a change of control or at the option of a Holder thereof, and the period or periods within which (or manner of determining the same), the price or prices at which (or manner of determining the same), the currency or currency unit in which, and the terms and conditions upon which, Securities of that series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) if the currency in which the Securities of that series shall be issuable is Dollars, the denominations in which any Registered Securities of that series shall be issuable, if other than denominations of $1,000 and any integral multiple thereof, and the denominations in which any Bearer Securities of that series shall be issuable, if other than the denomination of $5,000;
(10) if other than the principal amount thereof, the portion of the principal amount of Securities of that series which shall be payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502;
(11) if a Person other than Regions Bank is to act as Trustee for the Securities of that series, the name and location of the Corporate Trust Office of such Trustee;
(12) if other than Dollars, the currency or currency unit in which payment of the principal of (and premium, if any) or interest, if any, on the Securities of that series shall be made or in which the Securities of that series shall be denominated and the particular provisions applicable thereto in accordance with, in addition to or in lieu of the provisions of Section 311;
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(13) the inapplicability of any Event of Default or covenant set forth in Article 10 hereof to the Securities of that series, or the applicability of any other Events of Defaults or covenants in addition to the Events of Default or covenants set forth herein to Securities of that series;
(14) if the principal of (and premium, if any) and interest, if any, on the Securities of that series are to be payable, at the election of the Company or a Holder thereof, in a currency or currency unit other than that in which such Securities are denominated or stated to be payable, in accordance with provisions in addition to or in lieu of, or in accordance with the provisions of, Section 311, the period or periods within which (including the Election Date), and the terms and conditions upon which, such election may be made, and the time and manner of determining the exchange rate between the currency or currency unit in which such Securities are denominated or stated to be payable and the currency or currency unit in which such Securities are to be so payable;
(15) the designation of the original Currency Determination Agent, if any;
(16) if the Securities of such series are issuable as Indexed Securities, the manner in which the amount of payments of principal of (and premium, if any) and interest, if any, on that series shall be determined;
(17) if the Securities of that series do not bear interest, the applicable dates for purposes of Section 701;
(18) if other than as set forth in Article Four, provisions for the satisfaction and discharge of this Indenture with respect to the Securities of that series;
(19) the date as of which any Bearer Securities of that series and any Global Security representing Outstanding Securities of that series shall be dated if other than the date of original issuance of the first Security of that series to be issued;
(20) whether the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities and, in such case, the Depositary and Global Exchange Agent, if any, for such Global Security or Securities, whether such global form shall be permanent or temporary and, if applicable, the Exchange Date;
(21) if Securities of the series are to be issuable initially in the form of a temporary Global Security, the circumstances under which the temporary Global Security can be exchanged for definitive Securities and whether the definitive Securities will be Registered Securities and/or Bearer Securities and will be in global form and whether interest in respect of any portion of such Global Security payable in respect of an Interest Payment Date prior to the Exchange Date shall be paid to any clearing organization with respect to a portion of such Global Security held for its account and, in such event, the terms and conditions (including any certification requirements) upon which any such
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interest payment received by a clearing organization will be credited to the Persons entitled to interest payable on such Interest Payment Date if other than as provided in this Article Three;
(22) whether payment of any amount due under such Securities will be entitled to the benefits of any Note Guarantee of any Guarantors, pursuant to the Indenture;
(23) the terms, if any, upon which such Securities of any series may be converted or exchanged into or for common stock, preferred stock or other securities or property of the Company;
(24) the forms of the Securities of that series; and
(25) any other terms of that series (which terms shall not be inconsistent with the requirements of the Trust Indenture Act).
All Securities of any particular series and the coupons appertaining to any Bearer Securities of such series shall be substantially identical except as to denomination, rate of interest, Stated Maturity and the date from which interest, if any, shall accrue, and except as may otherwise be provided in or pursuant to such Board Resolutions of the Company and set forth in such Officer’s Certificate relating thereto or provided in or pursuant to any supplemental indenture hereto. The terms of such Securities, as set forth above, may be determined by the Company from time to time if so provided in or established pursuant to the authority granted in its Board Resolutions. All Securities of any one series need not be issued at the same time, and unless otherwise provided, a series may be reopened for issuance of additional Securities of such series.
Prior to the delivery of a Security of any series in any such form to the Trustee for the Securities of such series for authentication, the Company shall deliver to such Trustee the following:
(1) The Board Resolutions of the Company by or pursuant to which such form of Security have been approved and, if applicable, the supplemental indenture by or pursuant to which such form of Security has been approved;
(2) An Officers’ Certificate of the Company dated the date such Certificate is delivered to such Trustee satisfying the requirements of Sections 102 and 103, and stating that all conditions precedent provided for in this Indenture relating to the authentication and delivery of Securities in such forms have been complied with; and
(3) An Opinion of Counsel satisfying the requirements of Sections 102 and 103 substantially to the effect that Securities in such forms, together with any coupons appertaining thereto, when (a) completed by appropriate insertions and executed and delivered by the Company to such Trustee for authentication in accordance with this Indenture, (b) authenticated and delivered by such Trustee in accordance with this Indenture, and (c) issued by the Company in the manner and subject to the conditions specified in such Opinion of Counsel, will constitute the legal, valid and binding obligations of the Company, subject to the effects of applicable bankruptcy,
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reorganization, fraudulent conveyance, moratorium, insolvency and other similar laws generally affecting creditors’ rights, to general equitable principles, to an implied covenant of good faith and fair dealing and to such other qualifications as such counsel shall conclude do not materially affect the rights of Holders of such Securities.
Section 302. Denominations and Currencies.
Unless otherwise provided with respect to any series of Securities as contemplated by Section 301, any Registered Securities of a series other than Registered Securities issued in global form (which may be of any denomination) shall be issuable in denominations of $1,000 and any integral multiple thereof, and any Bearer Securities of a series other than Bearer Securities issued in global for (which may be of any denomination) shall be issuable in the denomination of $5,000, or the equivalent amounts thereof in the case of Registered Securities and Bearer Securities denominated in a Foreign Currency or currency unit.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities and any related coupons shall be executed on behalf of the Company by its Chairman of the Board, a Vice Chairman of the Board, or its President, Chief Executive Officer or one of its Vice Presidents. The Securities shall be so executed under the corporate seal of the Company reproduced thereon and attested to by its Secretary or any one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile.
Securities and coupons bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series together with any coupons appertaining thereto, executed by the Company (and, if applicable, having endorsed thereon the Note Guarantees executed as provided in Section 1403 hereof) to the Trustee for the Securities of such series for authentication, together with a Company Order for the authentication and delivery of such Securities, and such Trustee, in accordance with the Company Order, shall authenticate and deliver such Securities; provided, however, that, during the “restricted period” (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations), no Bearer Security shall be mailed or otherwise delivered to any location in the United States; and provided, further, that a Bearer Security may be delivered outside the United States in connection with its original issuance only if the Person entitled to receive such Bearer Security shall have furnished to the Trustee for the Securities of such series a certificate substantially in the form set forth in Exhibit B to this Indenture. If any Security shall be represented by a permanent Global Security, then, for purposes of this Section and Section 304, the notation of a beneficial owner’s interest therein upon original issuance of such Security or upon exchange of a portion of a temporary Global Security shall be deemed to be delivery in connection with the original issuance of such beneficial owner’s interest in such permanent Global Security. Except as permitted by Section 306 or 307, the Trustee for the Securities of a series shall not authenticate and deliver any Bearer Security unless all appurtenant coupons for interest then matured other than matured
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coupons in default have been detached and cancelled. If all the Securities of any one series are not to be issued at one time and if a Board Resolution relating to such Securities shall so permit, such Company Order may set forth procedures acceptable to the Trustee for the issuance of such Securities, including, without limitation, procedures with respect to interest rate, Stated Maturity, date of issuance and date from which interest, if any, shall accrue.
Notwithstanding any contrary provision herein, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Board Resolution, Officers’ Certificate and Opinion of Counsel otherwise required pursuant to Sections 102 and 301 at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Registered Security shall be dated the date of its authentication, and, unless otherwise specified as contemplated by Section 301, each Bearer Security shall be dated as of the date of original issuance of the first Security of such series to be issued.
No Security or coupon appertaining thereto or Note Guarantee endorsed thereon shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein manually executed by the Trustee for such Security or on its behalf pursuant to Section 614, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder.
In case any Securities shall have been authenticated, but not delivered, by the Trustee or the Authenticating Agent for such series then in office, any successor by merger, conversion or consolidation to such Trustee, or any successor Authenticating Agent, as the case may be, may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee or successor Authenticating Agent had itself authenticated such Securities.
Each Depositary designated pursuant to Section 301 for a Global Security in registered form must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders.
Section 304. Temporary Securities and Exchange of Securities.
Pending the preparation of definitive Securities of any particular series, the Company may execute, and upon Company Order the Trustee for the Securities of such series shall authenticate and deliver, in the manner specified in Section 303, temporary Securities which are printed, lithographed, typewritten, photocopied or otherwise produced, in any denomination, with like terms and conditions as the definitive Securities of like series in lieu of which they are issued in registered form or, if authorized, in bearer form with one or more coupons or without
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coupons, and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities. Any such temporary Securities may be in global form, representing such of the Outstanding Securities of such series as shall be specified therein.
Except in the case of temporary Securities in global form (which shall be exchanged only in accordance with the provisions of the following paragraphs or as otherwise provided in or pursuant to a Board Resolution or a Supplemental Indenture), if temporary Securities of any particular series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of such definitive Securities, the temporary Securities of such series shall be exchangeable for such definitive Securities of a like Stated Maturity and with like terms and provisions upon surrender of the temporary Securities of such series, together with all unmatured coupons and matured coupons in default, if any, at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any particular series, the Company shall execute and (in accordance with a Company Order delivered at or prior to the authentication of the first definitive Security of such series) the Trustee for the Securities of such series or the Global Exchange Agent shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of authorized denominations of the same series and of a like Stated Maturity and with like terms and provisions; provided, however, unless otherwise specified pursuant to Section 301, no definitive Bearer Security shall be delivered in exchange for a temporary Registered Security; and provided, further, that a definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth in Section 303. Until exchanged as hereinabove provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and with like terms and conditions, except as to payment of interest, if any, authenticated and delivered hereunder.
Any temporary Global Security and any permanent Global Security shall, unless otherwise provided therein, be delivered to a Depositary designated pursuant to Section 301.
Without unnecessary delay but in any event not later than the date specified in or determined pursuant to the terms of any such temporary Global Security (the “Exchange Date”), the Securities represented by any temporary Global Security of a series of Securities issuable in bearer form may be exchanged for definitive Securities (subject to the second succeeding paragraph) or Securities to be represented thereafter by one or more permanent Global Securities, without interest coupons. On or after the Exchange Date such temporary Global Security shall be surrendered by the Depositary to the Trustee for such Security, as the Company’s agent for such purpose, or the agent appointed by the Company pursuant to Section 301 to effect the exchange of the temporary Global Security for definitive Securities (the “Global Exchange Agent”), and following such surrender, such Trustee or the Global Exchange Agent (as authorized by the Trustee as an Authenticating Agent pursuant to Section 614) shall (1) endorse the temporary Global Security to reflect the reduction of its principal amount by an equal aggregate principal amount of such Security, (2) endorse the applicable permanent Global Security, if any, to reflect the initial amount, or an increase in the amount of Securities represented thereby, (3) manually authenticate such definitive Securities or such permanent Global Security, as the case may be, (4) subject to Section 303, deliver such definitive Securities to the Holder thereof or, as the case
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may be, deliver such permanent Global Security to the Depositary to be held outside the United States for the accounts of Euroclear and Clearstream Banking, for credit to the respective accounts at Euroclear and Clearstream Banking, designated by or on behalf of the beneficial owners of such Securities (or to such other accounts as they may direct) and (5) redeliver such temporary Global Security to the Depositary, unless such temporary Global Security shall have been cancelled in accordance with Section 309 hereof; provided, however, that, unless otherwise specified in such temporary Global Security, upon such presentation by the Depositary, such temporary Global Security shall be accompanied by a certificate dated the Exchange Date or a subsequent date and signed by Euroclear as to the portion of such temporary Global Security held for its account then to be exchanged for definitive Securities or one or more permanent Global Securities, as the case may be, and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream Banking, as to the portion of such temporary Global Security held for its account then to be exchanged for definitive Securities or one or more permanent Global Securities, as the case may be, each substantially in the form set forth in Exhibit C to this Indenture. Each certificate substantially in the form of Exhibit C hereto of Euroclear or Clearstream Banking, as the case may be, shall be based on certificates of the account holders listed in the records of Euroclear or Clearstream Banking, as the case may be, as being entitled to all or any portion of the applicable temporary Global Security. An account holder of Euroclear or Clearstream Banking, as the case may be, desiring to effect the exchange of interest in a temporary Global Security for an interest in definitive Securities or one or more permanent Global Securities shall instruct Euroclear or Clearstream Banking, as the case may be, to request such exchange on its behalf and shall deliver to Euroclear or Clearstream Banking, as the case may be, a certificate substantially in the form of Exhibit B hereto and dated no earlier than 15 days prior to the Exchange Date. Until so exchanged, temporary Global Securities shall in all respects be entitled to the same benefits under this Indenture as definitive Securities and permanent Global Securities of the same series authenticated and delivered hereunder, except as provided in the fourth succeeding paragraph.
The delivery to the Trustee for the Securities of the appropriate series or the Global Exchange Agent by Euroclear or Clearstream Banking of any certificate substantially in the form of Exhibit C hereto may be relied upon by the Company and such Trustee or the Global Exchange Agent as conclusive evidence that a corresponding certificate or certificates has or have been delivered to Euroclear or to Clearstream Banking, as the case may be, pursuant to the terms of this Indenture.
On or prior to the Exchange Date, the Company shall deliver to the Trustee for the Securities of the appropriate series or the Global Exchange Agent definitive Securities or one or more permanent Global Securities in aggregate principal amount equal to the principal amount of such temporary Global Security, executed by the Company in the case of the Securities. At any time, on or after the Exchange Date, upon 30 days’ notice to the Trustee for the Securities of the appropriate series or the Global Exchange Agent by Euroclear or Clearstream Banking, as the case may be, acting at the request of or on behalf of the beneficial owner, a Security represented by a temporary Global Security or a permanent Global Security, as the case may be, may be exchanged, in whole or from time to time in part, for definitive Securities without charge and such Trustee or the Global Exchange Agent shall authenticate and deliver, in exchange for each portion of such temporary Global Security or such permanent Global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized
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denominations and with like terms and provisions as the portion of such temporary Global Security or such permanent Global Security to be exchanged, which, unless the Securities of the series are not issuable both as Bearer Securities and as Registered Securities, as contemplated by Section 301, shall be in the form of Bearer Securities or Registered Securities, or any combination thereof, as shall be specified by the beneficial owner thereof; provided, however, that definitive Bearer Securities shall be delivered in exchange for a portion of the temporary Global Security or the permanent Global Security only in compliance with the requirements of the second preceding paragraph. On or prior to the thirtieth day following receipt by the Trustee for the Securities of the appropriate series or the Global Exchange Agent of such notice with respect to a Security, or, if such day is not a Business Day, the next succeeding Business Day, the temporary Global Security or the permanent Global Security, as the case may be, shall be surrendered by the Depositary to such Trustee, as the Company’s agent for such purpose, or the Global Exchange Agent to be exchanged in whole, or from time to time in part, for definitive Securities without charge following such surrender, upon the request of Euroclear or Clearstream Banking, as the case may be, and such Trustee or the Global Exchange Agent shall (1) endorse the applicable temporary Global Security or the permanent Global Security to reflect the reduction of its principal amount by the aggregate principal amount of such Security, (2) in accordance with procedures acceptable to the Trustee cause the terms of such Security and coupons, if any, to be entered on a definitive Security, (3) manually authenticate such definitive Security and (4) if a Bearer Security is to be delivered, deliver such definitive Security outside the United States to Euroclear or Clearstream Banking, as the case may be, for or on behalf of the beneficial owner thereof, in exchange for a portion of such permanent Global Security.
Unless otherwise specified in such temporary Global Security or permanent Global Security, any such exchange shall be made free of charge to the beneficial owners of such temporary Global Security or permanent Global Security, except that a Person receiving definitive Securities must bear the cost of any taxes, insurance, postage, transportation and the like in the event that such Person does not take delivery of such definitive Securities in person at the offices of Euroclear or Clearstream Banking. Definitive Securities in bearer form to be delivered in exchange for any portion of a temporary Global Security or a permanent Global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, any temporary Global Security or permanent Global Security shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and with like terms and conditions, except as to payment of interest, if any, authenticated and delivered hereunder. Unless otherwise specified as contemplated by Section 301, interest payable on such temporary Global Security on an Interest Payment Date for Securities of such series shall be payable to Euroclear and Clearstream Banking on such Interest Payment Date upon delivery by Euroclear and Clearstream Banking to the Trustee for the Securities of the appropriate series or the Global Exchange Agent in the case of payment of interest on a temporary Global Security with respect to an Interest Payment Date occurring prior to the applicable Exchange Date of a certificate or certificates substantially in the form set forth in Exhibit D to this Indenture, for credit without further interest on or after such Interest Payment Date to the respective accounts of the Persons who are the beneficial owners of such Global Security on such Interest Payment Date and who have, in the case of payment of interest on a temporary Global Security with respect to an Interest Payment Date occurring prior to the applicable Exchange Date, each delivered to Euroclear or Clearstream Banking, as the case may be, a certificate substantially in the form set forth in Exhibit E to this Indenture.
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Any definitive Bearer Security authenticated and delivered by the Trustee for the Securities of the appropriate series or the Global Exchange Agent in exchange for a portion of a temporary Global Security or a permanent Global Security shall not bear a coupon for any interest which shall theretofore have been duly paid by such Trustee to Euroclear or Clearstream Banking or by the Company to such Trustee in accordance with the provisions of this Section 304.
With respect to Exhibits A, B, C and D to this Indenture, the Company may, in its discretion and if required or desirable under applicable law, substitute one or more other forms of such exhibits for such exhibits, eliminate the requirement that any or all certificates be provided, or change the time that any certificate may be required, provided that such substitute form or forms or notice of elimination or change of such certification requirement have theretofore been delivered to the Trustee with a Company Request and such form or forms, elimination or change is reasonably acceptable to the Trustee.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee for the Securities of each series a register (the register maintained in such office being herein sometimes referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and of transfers of Registered Securities. The Trustee for the Securities of each series is hereby initially appointed “Security Registrar” for the purpose of registering Registered Securities and transfers of Registered Securities of such series as herein provided.
Upon surrender for registration of transfer of any Registered Security of any particular series at the office or agency of the Company in a Place of Payment for that series, the Company shall execute, and the Trustee for the Securities of each series shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of any authorized denominations, and of a like Stated Maturity and of a like series and aggregate principal amount and with like terms and conditions.
Except as set forth below, at the option of the Holder, Registered Securities of any particular series may be exchanged for other Registered Securities of any authorized denominations, and of a like Stated Maturity and of a like series and aggregate principal amount and with like terms and conditions upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee for such Securities shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive. Except as otherwise specified pursuant to Section 301, Registered Securities may not be exchanged for Bearer Securities.
Notwithstanding any other provision of this Section or Section 304, unless and until it is exchanged in whole or in part for Registered Securities in definitive form, a Global Security representing all or a portion of the Registered Securities of a series may not be transferred except
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as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
If (but not only if) permitted by the applicable Board Resolution and (subject to Section 308) set forth in the applicable Officer’s Certificate, at the option of the Holder, Bearer Securities of any series may be exchanged for Registered Securities of the same series of any authorized denominations and of a like aggregate principal amount and with like terms and provisions upon surrender of the Bearer Securities to be exchanged at any office or agency of the Company in a Place of Payment for that series, with all unmatured coupons and all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default, such exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Company (or to the Trustee for the Security in case of matured coupons in default) in an amount equal to the face amount of such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and such Trustee if there is furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 1002, interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency of the Company in a Place of Payment for that series located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in exchange for a Registered Security of the same series and with like terms and conditions after the close of business at such office or agency on or after (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date for payment, as the case may be (or, if such coupon is so surrendered with such Bearer Security, such coupon shall be returned to the person so surrendering the Bearer Security), and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee for such Securities shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for Securities of a series in registered form notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series or if at any time the Depositary for the Securities of such series shall no longer be eligible under Section 303, the Company shall appoint a successor Depositary with respect to the Securities for such series. If (i) a successor Depositary for the Securities of such series is not appointed by the
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Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, (ii) the Company delivers to the Trustee for Securities of such series in registered form a Company Order stating that the Securities of such series shall be exchangeable, or (iii) an Event of Default under Section 501 hereof has occurred and is continuing with respect to the Securities of such series, the Company’s election pursuant to Section 301 shall no longer be effective with respect to the Securities for such series and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver Securities of such series in definitive form in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the Registered Securities of any series issued in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Registered Securities of such series, will authenticate and deliver, Registered Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities.
If specified in a Board Resolution adopted by the Company pursuant to Section 301 with respect to a series of Securities in registered form, the Depositary for such series of Securities may surrender a Global Security for such series of Securities in exchange in whole or in part for Securities of such series of like tenor and terms and in definitive form on such terms as are acceptable to the Company and such Depositary. Thereupon the Company shall execute, and, upon receipt of a Company Order, the Trustee shall authenticate and deliver, without service charge, (i) to each Person specified by such Depositary a new Security or Securities of the same series, of like tenor and terms and of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Global Security; and (ii) to such Depositary a new Global Security of like tenor and terms and in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Securities delivered to Holders thereof.
Upon the exchange of a Global Security for Securities in definitive form representing the aggregate principal amount of such Global Security, such Global Security shall be cancelled by the Trustee. Registered Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee in writing. The Trustee shall deliver such Registered Securities to the persons in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
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Every Security presented or surrendered for registration of transfer or exchange shall (if so required by the Company or the Trustee for such Security) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar for such series duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of that series selected for redemption under Section 1104 and ending at the close of business on (A) if Securities of the series are issuable only as Registered Securities, the day of the mailing of the relevant notice of redemption and (B) if Securities of the series are issuable as Bearer Securities, the day of the first publication of the relevant notice of redemption or, if Securities of the series are also issuable as Registered Securities and there is no publication, the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Registered Security so selected for redemption as a whole or in part, except the unredeemed portion of any Security being redeemed in part, or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of that series and like tenor; provided, however, that such Registered Security shall be simultaneously surrendered for redemption.
Furthermore, notwithstanding any other provision of this Section 305, the Company will not be required to exchange any Securities if, as a result of the exchange, the Company would suffer adverse consequences under any United States law or regulation.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If (i) any mutilated Security or a Security with a mutilated coupon appertaining thereto is surrendered to the Trustee for such Security or the Company and the Trustee for a Security receive evidence to their satisfaction of the destruction, loss or theft of any Security or coupon and (ii) there is delivered to the Company and such Trustee such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or such Trustee that such Security or coupon has been acquired by a bona fide or protected purchaser, the Company shall execute and upon its request such Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security or in exchange for such mutilated Security, or in exchange for the Security to which a mutilated, destroyed, lost or stolen coupon appertains (with all appurtenant coupons not mutilated, destroyed, lost or stolen) a new Security of the same series and in a like principal amount and of a like Stated Maturity and with like terms and conditions, and bearing a number not contemporaneously outstanding with coupons corresponding to the coupons, if any, appertaining to such mutilated, destroyed, lost or stolen Security or to the Security to which such mutilated, destroyed, lost or stolen coupon appertains.
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In case any such mutilated, destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security or coupon (without surrender thereof except in the case of a mutilated Security or coupon) if the applicant for such payment shall furnish to the Company and the Trustee for such Security such security or indemnity as may be required by them to save each of them harmless, and in case of destruction, loss or theft, evidence satisfactory to the Company and such Trustee and any agent of any of them of the destruction, loss or theft of such Security and the ownership thereof; provided, however, that the principal of (and premium, if any) and interest, if any, on Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an office or agency located outside the United States and, unless otherwise specified as contemplated by Section 301, any interest on Bearer Securities shall be payable only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including all fees and expenses of the Trustee for such Security) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security or in exchange for any mutilated Security, or in exchange for a Security to which a mutilated, destroyed, lost or stolen coupon appertains shall constitute an original additional contractual obligation of the Company whether or not the destroyed, lost or stolen Security and its coupons, if any, or the destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and each such new Security shall be at any time enforceable by anyone, and each such new Security shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall, if so provided in such Security, be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest payment.
Unless otherwise provided with respect to the Securities of any series, payment of interest may be made at the Corporate Trust Office or, at the option of the Company (i) in the case of Registered Securities, may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register, or (ii) in the case of Bearer Securities, upon presentation and surrender of the appropriate coupon appertaining thereto or by transfer to an account maintained by the payee with a bank located outside the United States. Notwithstanding the foregoing, a Holder of $5,000,000 or more in aggregate principal amount of Securities of any series in definitive form (other than Bearer Securities), whether having identical or different
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terms and provisions, having the same Interest Payment Dates will, at the option of the Company, be entitled to receive interest payments, other than at Maturity, by wire transfer of immediately available funds if appropriate wire transfer instructions have been received in writing by the Trustee for the Securities of such series at least 15 days prior to the applicable Interest Payment Date. Any wire instructions received by the Trustee for the Securities of such series shall remain in effect until revoked by the Holder.
Unless otherwise provided or contemplated by Section 301, every permanent Global Security will provide that interest, if any, payable on any Interest Payment Date will be paid to each of Euroclear and Clearstream Banking with respect to that portion of such permanent Global Security held for its account by the Depositary. Each of Euroclear and Clearstream Banking will in such circumstances credit the interest received by it in respect of such permanent Global Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any particular series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of that series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee for the Registered Securities of such series in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of that series and the date of the proposed payment, and at the same time the Company shall deposit with such Trustee an amount of money in the currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d)), equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to such Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon such Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall not be more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by such Trustee of the notice of the proposed payment. Such Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Registered Securities of that series at his address as it appears in the Security Register not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names the Registered Securities of that series (or their respective Predecessor Securities) are registered on such Special Record Date and shall no longer be payable pursuant to the following clause (2).
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(2) The Company may make payment of any Defaulted Interest on Registered Securities of any particular series in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Registered Securities may be listed, and upon such notice as may be required by such exchange, if, after notice is given by the Company to the Trustee for the Securities of such series of the proposed manner of payment pursuant to this clause, such manner of payment shall be deemed practicable by such Trustee.
Subject to the foregoing provisions of this Section and Section 305, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee for such Security and any agent of the Company or such Trustee may treat the Person in whose name any such Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 307) interest, if any, on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and none of the Company, such Trustee or any agent of the Company or such Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall pass by delivery. The Company, the Trustee for such Security and any agent of the Company or such Trustee may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner of such Bearer Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Security or coupon be overdue, and none of the Company, such Trustee or any agent of the Company or such Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Section 309. Cancellation.
All Securities and coupons surrendered for payment, redemption, registration of transfer or exchange, or delivered in satisfaction of any sinking fund payment, shall, if surrendered to any Person other than the Trustee for such Securities, be delivered to such Trustee and, in the case of Registered Securities and matured coupons, shall be promptly cancelled by it. All Bearer Securities and unmatured coupons so delivered to the Trustee for such Securities shall be cancelled by such Trustee. The Company may at any time deliver to the Trustee for Securities of a series for cancellation any Securities previously authenticated and delivered hereunder which
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the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by such Trustee. Notwithstanding any other provision of this Indenture to the contrary, in the case of a series, all the Securities of which are not to be originally issued at one time, a Security of such series shall not be deemed to have been Outstanding at any time hereunder if and to the extent that, subsequent to the authentication and delivery thereof, such Security is delivered to the Trustee for such Security for cancellation by the Company or any agent thereof upon the failure of the original purchaser thereof to make payment therefor against delivery thereof, and any Security so delivered to such Trustee shall be promptly cancelled by it. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities and coupons held by the Trustee for such Securities shall be disposed of by such Trustee in accordance with its standard procedures and a certificate of disposition evidencing such disposition of Securities and coupons shall be provided to the Company by such Trustee. In the case of any temporary Global Security, which shall be disposed of if the entire aggregate principal amount of the Securities represented thereby has been exchanged, the certificate of disposition shall state that all certificates required pursuant to Section 304 hereof, substantially in the form of Exhibit C hereto (or in the form of any substitute exhibit as provided in the last paragraph of Section 304), to be given by Euroclear or Clearstream Banking, have been duly presented to the Trustee for such Securities by Euroclear or Clearstream Banking, as the case may be. Permanent Global Securities shall not be disposed of until exchanged in full for definitive Securities or until payment thereon is made in full.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any particular series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 311. Currency and Manner of Payments in Respect of Securities.
Unless otherwise specified in accordance with Section 301 with respect to any series of Securities, the following provisions shall apply:
(a) Except as provided in paragraphs (b) and (d) below, the principal of (and premium, if any) and interest on Securities of any series denominated in a Foreign Currency or currency unit will be payable by the Company in Dollars based on the equivalent of that Foreign Currency or currency unit converted into Dollars in the manner described in paragraph (c) below.
(b) It may be provided pursuant to Section 301 with respect to Registered Securities of any series denominated in a Foreign Currency or currency unit that Holders shall have the option, subject to paragraph (d) below, to receive payments of principal of (and premium, if any) and interest on such Registered Securities in such Foreign Currency or currency unit by delivering to the Trustee (or to any duly appointed Paying Agent) for the Registered Securities of that series a written election, to be in form and substance satisfactory to such Trustee (or to any such Paying Agent), not later than the close of business on the Election Date immediately preceding the applicable payment
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date. If a Holder so elects to receive such payments in such Foreign Currency or currency unit, such election will remain in effect for such Holder until changed by such Holder by written notice to the Trustee (or to any such Paying Agent) for the Registered Securities of that series; provided, however, that any such change must be made not later than the close of business on the Election Date immediately preceding the next payment date to be effective for the payment to be made on such payment date; and provided, further, that no such change or election may be made with respect to payments to be made on any Registered Security of such series with respect to which an Event of Default has occurred, the Company has exercised any defeasance, satisfaction or discharge options pursuant to Article Four or notice of redemption has been given by the Company pursuant to Article Eleven. If any Holder makes any such election, such election will not be effective as to any transferee of such Holder and such transferee shall be paid in Dollars unless such transferee makes an election as specified above; provided, however, that such election, if in effect while funds are on deposit with respect to the Registered Securities of such series as described in Section 404 or Section 405, will be effective as to any transferee of such Holder unless otherwise specified pursuant to Section 301 for such Registered Securities. Any Holder of any such Registered Security who shall not have delivered any such election to the Trustee (or to any duly appointed Paying Agent) for the Registered Securities of such series not later than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date in Dollars.
(c) With respect to any Registered Securities of any series denominated in a Foreign Currency or currency unit and payable in Dollars, the amount of Dollars so payable will be determined by the Currency Determination Agent based on the highest indicative quotation in The City of New York selected by the Currency Determination Agent (after consultation with the Company) at approximately 11:00 A.M., New York City time, on the second Business Day preceding the applicable payment date. Such selection shall be made from among the quotations appearing on the bank composite or multi-contributor pages of the Reuters Monitor Foreign Exchange Service or, if not available, the Telerate Monitor Foreign Exchange Service, for three (or two if three are not available) major banks in New York City. The first three (or two) such banks selected by the Currency Determination Agent which are offering quotes on the Reuters Foreign Exchange Service shall be used. If such quotations are unavailable from either such foreign exchange service, such selection shall be made from the quotations received by the Currency Determination Agent from no more than three nor less than two recognized foreign exchange dealers in The City of New York selected by the Currency Determination Agent and approved by the Company (one of which may be the Currency Determination Agent) for the purchase by the quoting dealer, for settlement on such payment date, of the aggregate amount of the Foreign Currency or currency unit payable on such payment date in respect of all Registered Securities denominated in such Foreign Currency or currency unit and for which the applicable dealer commits to execute a contract. If fewer than two such bid quotations are available at 11:00 a.m., New York City time, on the second Business Day preceding the applicable payment date, such payment will be based on the Market Exchange Rate as of the second Business Day preceding the applicable payment date. If the Market Exchange Rate for such date is not then available, payments shall be made in the Foreign Currency or currency unit. All currency exchange costs associated with any payment in Dollars on any such Registered Securities will be borne by the Holder thereof by deductions from such payment.
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(d) If a Conversion Event occurs with respect to a Foreign Currency or currency unit in which Registered Securities of any series are payable, then with respect to each date for the payment of principal of (and premium, if any) and interest on the Registered Securities of that series occurring after the last date on which such Foreign Currency or currency unit was used, the Company may make such payment in Dollars. The Dollar amount to be paid by the Company to the Trustee for the Registered Securities of such series and by such Trustee or any Paying Agent for the Registered Securities of such series to the Holders of such Registered Securities with respect to such payment date shall be determined by the Currency Determination Agent on the basis of the Market Exchange Rate as of the second Business Day preceding the applicable payment date or, if such Market Exchange Rate is not then available, on the basis of the most recently available Market Exchange Rate, or as otherwise established pursuant to Section 301 with respect to such Securities. Any payment in respect of such Registered Security made under such circumstances in Dollars will not constitute an Event of Default hereunder.
(e) For purposes of this Indenture the following terms shall have the following meanings:
A “Component Currency” shall mean any currency which is a component currency of any currency unit.
“Election Date” shall mean, for the Registered Securities of any series, the date specified pursuant to Section 301(14).
(f) Notwithstanding any other provisions of this Section 311, the following shall apply: (i) if the official unit of any Component Currency is altered by way of combination or subdivision, the number of units of that currency as a component shall be divided or multiplied in the same proportion, (ii) if two or more Component Currencies are consolidated into a single currency, the amounts of those currencies as components shall be replaced by an amount in such single currency equal to the sum of the amounts of the consolidated Component Currencies expressed in such a single currency, (iii) if any Component Currency is divided into two or more currencies, the amount of that original Component Currency as a component shall be replaced by the amounts of such two or more currencies having an aggregate value on the date of division equal to the amount of the former Component Currency immediately before such division and (iv) in the event of an official redenomination of any currency (including, without limitation, a currency unit), the obligations of the Company to make payments in or with reference to such currency on the Registered Securities of any series shall, in all cases, be deemed immediately following such redenomination to be obligations to make payments in or with reference to that amount of redenominated currency representing the amount of such currency immediately before such redenomination.
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(g) All determinations referred to in this Section 311 made by the Currency Determination Agent shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Holders of the applicable Securities. The Currency Determination Agent shall promptly give written notice to the Trustee of any such decision or determination. The Currency Determination Agent shall have no liability for any determinations referred to in this Section 311 made by it.
(h) The Trustee for the Securities of a particular series shall be fully justified and protected in relying and acting upon information received by it from the Company and the Currency Determination Agent with respect to any of the matters addressed in or contemplated by this Section 311 and shall not otherwise have any duty or obligation to determine such information independently.
Section 312. Appointment and Resignation of Currency Determination Agent.
(a) If and so long as the Securities of any series (i) are denominated in a currency unit or a currency other than Dollars or (ii) may be payable in a currency unit or a currency other than Dollars, or so long as it is required under any other provision of this Indenture, then the Company shall maintain with respect to each such series of Securities, or as so required, a Currency Determination Agent. The Company shall cause the Currency Determination Agent to make the necessary foreign exchange determinations at the time and in the manner specified pursuant to Section 301 for the purpose of determining the applicable rate of exchange and for the purpose of converting the issued currency or currency unit into the applicable payment currency or currency unit for the payment of principal (and premium, if any) and interest, if any, pursuant to Section 311.
(b) No resignation of the Currency Determination Agent and no appointment of a successor Currency Determination Agent pursuant to this Section shall become effective until the acceptance of appointment by the successor Currency Determination Agent as evidenced by a written instrument delivered to the Company and the Trustee of the appropriate series of Securities accepting such appointment executed by the successor Currency Determination Agent.
(c) If the Currency Determination Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Currency Determination Agent for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Currency Determination Agent or Currency Determination Agents with respect to the Securities of that or those series (it being understood that any such successor Currency Determination Agent may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall only be one Currency Determination Agent with respect to the Securities of any particular series).
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Section 313. Ranking.
The Securities shall constitute the senior indebtedness of the Company and shall rank pari passu in right of payment among themselves and with all of the other existing and future senior indebtedness of the Company.
ARTICLE 4
Satisfaction and Discharge
Section 401. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by a Board Resolution set forth in an Officers’ Certificate, at any time, with respect to the Securities of any series, elect to have either Section 402 or 403 be applied to all of the Outstanding Securities of that series upon compliance with the conditions set forth below in this Article Four.
Section 402. Legal Defeasance and Discharge.
Upon the Company’s exercise under Section 401 of the option applicable to this Section 402, the Company shall be deemed to have been discharged from its obligations with respect to all Outstanding Securities of the particular series and any coupons appertaining thereto on the date the conditions set forth below in Section 404 are satisfied (hereinafter, “Legal Defeasance”). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged all the obligations relating to the Outstanding Securities of that series and the Securities of that series, including any coupons appertaining thereto, shall thereafter be deemed to be “Outstanding” only for the purposes of Section 406, Section 408 and the other Sections of this Indenture referred to below in this Section 402, and to have satisfied all of its other obligations under such Securities and any coupons appertaining thereto and this Indenture and cured all then existing Events of Default (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of Outstanding Securities of the particular series and coupons, if any, of such series to receive payments in respect of the principal of (and premium, if any) and interest, if any, on such Securities when such payments are due or on the Redemption Date solely out of the trust created pursuant to this Indenture; (b) the Company’s obligations with respect to such Securities concerning issuing temporary Securities of that series, or, where relevant, registration of such Securities, mutilated, destroyed, lost or stolen Securities of that series and the maintenance of an office or agency for payment and money for Securities payments held in trust; (c) the rights, powers, trusts, duties and immunities of the Trustee for the Securities of that series, and the Company’s obligations in connection therewith; and (d) this Article Four and the obligations set forth in Section 406 hereof.
Subject to compliance with this Article Four, the Company may exercise its option under Section 402 notwithstanding the prior exercise of its option under Section 403 with respect to the Securities of a particular series and any coupons appertaining thereto.
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Section 403. Covenant Defeasance.
Upon the Company’s exercise under Section 401 of the option applicable to this Section 403, the Company shall be released from any obligations under the covenants contained in Sections 704 and 801 hereof (and any other covenant in addition to those set forth herein applicable to Securities of any series pursuant to Section 301 hereof specified to be released as provided under this Section 403) with respect to the Outstanding Securities of the particular series, along with any additional covenants or other provisions (including Events of Default) contained in such Security or any Supplemental Indenture in connection therewith, on and after the date the conditions set forth below in Section 404 are satisfied (hereinafter, “Covenant Defeasance”), and the Securities of that series and any coupons appertaining thereto shall thereafter be deemed not “Outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “Outstanding” for all other purposes hereunder (it being understood that such Securities shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the Outstanding Securities of that series and any coupons appertaining thereto, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a default or Event of Default under subsection 501 but, except as specified above, the remainder of this Indenture and the Securities of that series shall be unaffected thereby.
Section 404. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section 402 or Section 403 to the Outstanding Securities of a particular series:
(a) the Company must irrevocably deposit, or cause to be irrevocably deposited, with the Trustee for the Securities of that series, in trust, for the benefit of the Holders of the Securities of that series, cash in the currency or currency unit in which the Securities of that series are payable (except as otherwise specified pursuant to Section 301 for the Securities of that series and except as provided in Sections 311(b) and 311(d), in which case the deposit to be made with respect to Securities for which an election has occurred pursuant to Section 311(b), or a Conversion Event has occurred as provided in Section 311(d), shall be made in the currency or currency unit in which the Securities of that series are payable as a result of such election or Conversion Event), Government Obligations or a combination thereof in such amounts as will be sufficient, in the opinion of an internationally recognized firm of independent public accountants, to pay the principal of (and premium, if any) and interest, if any, due on the outstanding Securities of that series and any related coupons at the Stated Maturity, or on the applicable Redemption Date, as the case may be, with respect to the outstanding Securities of that series and any related coupons;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee for the Securities of that series an Opinion of Counsel in the United States
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reasonably acceptable to such Trustee confirming that, subject to customary assumptions and exclusions, (1) the Company has received from, or there has been published by, the U.S. Internal Revenue Service a ruling or (2) since the Issue Date, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel in the United States shall confirm that, subject to customary assumptions and exclusions, the Holders of the Outstanding Securities of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee for the Securities of that series an Opinion of Counsel in the United States reasonably acceptable to such Trustee confirming that, subject to customary assumptions and exclusions, the Holders of the Outstanding Securities of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to such tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Event of Default or event which with the giving of notice or the lapse of time, or both, would become an Event of Default with respect to the Securities of that series shall have occurred and be continuing on the date of such deposit and no Event of Default under Section 501(4) or Section 501(5) shall have occurred and be continuing on the 123rd day after such date; and
(e) the Company shall have delivered to the Trustee for the Securities of that series an Officers’ Certificate and an Opinion of Counsel in the United States (which opinion of counsel may be subject to customary assumptions and exclusions) each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Section 405. Satisfaction and Discharge of Indenture.
This Indenture will be discharged and will cease to be of further effect as to all Securities of any particular series issued hereunder when either (i) all Securities of that series theretofore authenticated and delivered and all coupons, if any, appertaining thereto (except (A) coupons appertaining to Bearer Securities surrendered for exchange for Registered Securities and maturing after such exchange, whose surrender is not required or has been waived as provided in Section 305, (B) lost, stolen or destroyed Securities or coupons of such series which have been replaced or paid as provided in Section 306, (A) coupons appertaining to Securities called for redemption and maturing after the relevant Redemption Date, whose surrender is not required as provided in Section 1106 and (D) Securities and coupons of such series for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company or discharged from such trust, as provided in the last paragraph of Section 1003) have been delivered to the Trustee for the Securities of that series for cancellation or (ii) (A) all Securities of that series and any coupons appertaining thereto not theretofore delivered to Trustee for
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cancellation are due and payable by their terms within one year or have become due and payable by reason of the making of a notice of redemption and the Company has irrevocably deposited or caused to be deposited with such Trustee as trust funds in trust an amount of cash in any combination of currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d), in which case the deposit to be made with respect to Securities for which an election has occurred pursuant to Section 311(b) or a Conversion Event has occurred as provided in Section 311(d), shall be made in the currency or currency unit in which such Securities are payable as a result of such election or Conversion Event) sufficient to pay and discharge the entire indebtedness on such Securities and coupons not theretofore delivered to the Trustee for the Securities of that series for cancellation for principal (and premium, if any) and accrued and unpaid interest, if any, to the Stated Maturity or Redemption Date, as the case may be; (B) no Event of Default or event which with the giving of notice or the lapse of time, or both, would become an Event of Default shall have occurred and be continuing on the date of such deposit and no Event of Default under Section 501(4) or Section 501(5) shall have occurred and be continuing on the 123rd day after such date; (C) the Company has paid, or caused to be paid, all sums payable by it under this Indenture; and (D) the Company has delivered irrevocable instructions to the Trustee for the Securities of that series under this Indenture to apply the deposited money toward the payment of such Securities and coupons at the Stated Maturity or the Redemption Date, as the case may be. In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel to the Trustee for the Securities of that series stating that all conditions precedent to satisfaction and discharge have been satisfied.
Section 406. Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this Indenture and of the Securities of a particular series referred to in Sections 401, 402, 404 or 405, the respective obligations of the Company and the Trustee for the Securities of a particular series under Sections 303, 304, 305, 309, 407, 408, 409, 410, and 508, Article Six, and Sections 701, 702, 1002, 1003, 1004 and 1005, shall survive with respect to Securities of that series until the Securities of that series are no longer outstanding, and thereafter the obligations of the Company and the Trustee for the Securities of a particular series with respect to that series under Sections 407, 408, 409, and 410 shall survive. Nothing contained in this Article Four shall abrogate any of the obligations or duties of the Trustee of any series of Securities under this Indenture.
Notwithstanding the satisfaction of the conditions set forth in Sections 404 or 405 with respect to all the Securities of any series not payable in Dollars, upon the happening of any Conversion Event the Company shall be obligated to make the payments in Dollars required by Section 311(d) to the extent that the Trustee is unable to convert any Foreign Currency or currency unit or currency unit in its possession pursuant to Sections 404 or 405 into the Dollar equivalent of such Foreign Currency or currency unit, as the case may be. If, after the deposits referred to in Sections 404 or 405 have been made, (x) the Holder of a Security is entitled to, and does, elect pursuant to Section 311(b) to receive payment in a currency or currency unit other than that in which the deposit pursuant to Sections 404 or 405 was made, or (y) a Conversion Event occurs as contemplated in Section 311(d), then the indebtedness represented by such Security shall be fully discharged to the extent that the deposit made with respect to such
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Security shall be converted into the currency or currency unit in which such Security is payable. The Trustee shall return to the Company any non-converted funds or securities in its possession after such payments have been made.
Section 407. Acknowledgment of Discharge by Trustee.
Subject to Section 410, after (i) the conditions of Sections 404 or 405have been satisfied with respect to the Securities of a particular series, (ii) the Company has paid or caused to be paid all other sums payable hereunder by the Company and (iii) the Company has delivered to the Trustee for the Securities of that series an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent referred to in clause (i) above relating to the satisfaction and discharge of this Indenture have been complied with, the Trustee for the Securities of that series upon written request shall acknowledge in writing the discharge of all of the Company’s obligations under this Indenture except for those surviving obligations specified in this Article Four.
Section 408. Application of Trust Moneys.
All money and Government Obligations deposited with the Trustee for the Securities of a particular series pursuant to Sections 404 or 405 in respect of the Securities of that series shall be held in trust and applied by it, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of the Securities and all related coupons of all sums due and to become due thereon for principal (and premium, if any) and interest, if any, but such money need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee for the Securities of a particular series against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Sections 404 or 405 with respect to the Securities of that series or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of outstanding Securities of that series.
Section 409. Repayment to the Company; Unclaimed Money.
The Trustee and any Paying Agent for a series of Securities shall promptly pay or return to the Company upon Company Order any cash or Government Obligations held by them at any time that are not required for the payment of the principal of (and premium, if any) and interest, if any, on the Securities and all related coupons for Securities of that series for which cash or Government Obligations have been deposited pursuant to Sections 404 or 405.
Any money deposited with the Trustee or any Paying Agent for the Securities of any series, or then held by the Company, in trust for the payment of the principal of (and premium, if any) and interest, if any, on any Security of any particular series and all related coupons appertaining thereto and remaining unclaimed for two years after such principal (and premium, if any) and interest, if any, has become due and payable shall, unless otherwise required by mandatory provisions of applicable escheat, or abandoned or unclaimed property law, be paid to the Company on Company Request or (if then held by the Company) shall be discharged from such trusts; and the Holder of such Security and all related coupons shall, thereafter, as an
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unsecured general creditor, look only to the Company for payment thereof, and all liability of such Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that such Trustee or such Paying Agent, before being required to make any such repayment may give written notice to the Holder of such Security in the manner set forth in Section 106, that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will, unless otherwise required by mandatory provisions of applicable escheat, or abandoned or unclaimed property law, be repaid to the Company, as the case may be.
Section 410. Reinstatement.
If the Trustee or Paying Agent for a series of Securities is unable to apply any cash or Government Obligations, as applicable, in accordance with Section 402, 403, 404 or 405 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture and the Securities of that series shall be revived and reinstated as though no deposit had occurred pursuant to Section 402, 403, 404 or 405 until such time as the Trustee or Paying Agent for that series is permitted to apply all such cash or Government Obligations in accordance with Section 402, 403, 404 or 405; provided, however, that if the Company has made any payment of principal (and premium, if any) and interest, if any, on any Securities and any related coupons because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities and such coupons to receive such payment from the cash or Government Obligations, as applicable, held by such Trustee or Paying Agent. In the event the Company’s obligations under this Indenture and the Securities are revived and reinstated pursuant to this Section 410, then the obligations of each Guarantor, if any, under its Note Guarantee and this Indenture that were released pursuant to Section 1405 as a result of the Company’s exercise of its rights under this Article Four shall be revived and reinstated as though such release had not occurred.
ARTICLE 5
Remedies
Section 501. Events of Default.
“Event of Default” wherever used herein with respect to any particular series of Securities means any one of the following events and such other events as may be established with respect to the Securities of such series as contemplated by Section 301 (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any installment of interest upon any Security of that series and any related coupon when it becomes due and payable, and continuance of such default for a period of 30 days; or
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(2) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity or default in the deposit of any sinking fund payment when and as due by the terms of any Security of that series; or
(3) default in the performance of, or breach of, any covenant or warranty of the Company or any Guarantor (if any) in respect of any Security of that series contained in this Indenture or in such Securities (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with) and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee for the Securities of such series or to the Company and such Trustee by the Holders of at least 30% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(4) the Company shall commence any case or proceeding seeking to have an order for relief entered on its behalf as debtor or to adjudicate it as bankrupt or insolvent or seeking reorganization, liquidation, dissolution, winding-up, arrangement, composition or readjustment of its debts or any other relief under any bankruptcy, insolvency, reorganization, liquidation, dissolution, arrangement, composition, readjustment of debt or other similar act or law of any jurisdiction, domestic or foreign, now or hereafter existing; or the Company shall apply for a receiver, custodian or trustee (other than any trustee appointed as a mortgagee or secured party in connection with the issuance of indebtedness for borrowed money of the Company) of it or for all or a substantial part of its property; or the Company shall make a general assignment for the benefit of creditors; or the Company shall take any corporate action in furtherance of any of the foregoing; or
(5) an involuntary case or other proceeding shall be commenced against the Company with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect seeking the appointment of a trustee, receiver, liquidator, custodian or similar official of the Company or any substantial part of its property; and such case or other proceeding (A) results in the entry of an order for relief or a similar order against the Company or (B) shall continue unstayed and in effect for a period of 60 consecutive days; or
(6) any other Event of Default provided in the Security or the Board Resolution with respect to Securities of that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any particular series of Securities and any related coupons occurs and is continuing (other than an Event of Default described in Section 501(4) or 501(5) with respect to the Company), then and in every such case either the Trustee for the Securities of such series or the Holders of not less than [30%] in principal amount of the Outstanding Securities of that series may declare the entire principal amount (or, in the case of (i) OID Securities, such lesser amount as may be provided for in the terms of that series or (ii) Indexed Securities, the amount determined in accordance with the specified terms of those
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Securities) of all the Securities of that series, to be due and payable immediately, by a notice in writing to the Company (and to such Trustee if given by Holders), and upon any such declaration of acceleration such principal or such lesser amount, as the case may be, together with accrued interest and all other amounts owing hereunder, shall become immediately due and payable, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived.
If any Event of Default specified in Section 501(4) or 501(5) occurs with respect to the Company, all of the unpaid principal amount (or, if the Securities of any series then outstanding are (i) OID Securities, such lesser amount as may be provided for in the terms of that series or (ii) Indexed Securities, the amount determined in accordance with the specified terms of those Securities) and accrued interest on all Securities of each series then outstanding shall ipso facto become and be immediately due and payable without any declaration or other act by the Trustee or any Holder.
At any time after such a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee for the Securities of any series as hereinafter provided in this Article, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and such Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with such Trustee a sum sufficient to pay in the currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d)):
| (A) | all overdue interest on all Securities of that series and any related coupons; |
| (B) | the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and interest thereon from the date such principal became due at a rate per annum equal to the rate borne by the Securities of such series (or, in the case of (i) OID Securities, the Securities’ Yield to Maturity or (ii) Indexed Securities, the rate determined in accordance with the specified terms of those Securities), to the extent that the payment of such interest shall be legally enforceable; |
| (C) | to the extent that payment of such interest is lawful, interest upon overdue interest at a rate per annum equal to the rate borne by the Securities of such series (or, in the case of (i) OID Securities, the Securities’ Yield to Maturity or (ii) Indexed Securities, the rate determined in accordance with the specified terms of those Securities); and |
| (D) | all sums paid or advanced by such Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607; |
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and
(2) all Events of Default with respect to the Securities of such series, other than the nonpayment of the principal of Securities of that series which has become due solely by such acceleration, have been cured or waived as provided in Section 513. No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest upon any Security of any series and any related coupons when such interest becomes due and payable and such default continues for a period of 30 days; or
(2) default is made in the payment of the principal of (or premium, if any, on) any Security of any series at its Maturity;
the Company will, upon demand of the Trustee for the Securities of such series, pay to the Trustee, for the benefit of the Holders of such Securities and coupons, the whole amount then due and payable on such Securities and coupons for principal (and premium if any) and interest, if any, with interest upon the overdue principal (and premium, if any) and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installments of interest at a rate per annum equal to the rate borne by such Securities (or, in the case of (i) OID Securities, the Securities’ Yield to Maturity or (ii) Indexed Securities, the rate determined in accordance with the specified terms of those Securities); and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon such demand, such Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding against the Company for the collection of the sums so due and unpaid, and may prosecute such proceedings to judgment or final decree, and may enforce the same against the Company or any other obligor upon the Securities of such series and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any particular series occurs and is continuing, the Trustee for the Securities of such series may, in its discretion, proceed to protect and enforce its rights and the rights of the Holders of Securities of that series by such appropriate judicial proceedings as such Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
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Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relating to the Company or any other obligor upon the Securities of any series or the property of the Company or of such other obligor or their creditors, the Trustee for the Securities of such series (irrespective of whether the principal (or, if the Securities of such series are (i) OID Securities or (ii) Indexed Securities, such amount as may be due and payable with respect to such Securities pursuant to a declaration in accordance with Section 502) of any Security of such series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether such Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise
(i) to file and prove a claim for the whole amount of principal (or, if the Securities of such series are (i) OID Securities or (ii) Indexed Securities, such amount as may be due and payable with respect to such Securities pursuant to a declaration in accordance with Section 502) (and premium, if any) and interest, if any, owing and unpaid in respect of the Securities of such series and any related coupons and to file such other papers or documents as may be necessary or advisable in order to have the claims of such Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607) and of the Holders of the Securities of such series and any related coupons allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any such judicial proceeding is hereby authorized by each Holder of Securities and coupons to make such payments to such Trustee, and in the event that such Trustee shall consent to the making of such payments directly to the Holders of Securities and coupons, to pay to such Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel, and any other amounts due such Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee for the Securities of any series to authorize or consent to or accept or adopt on behalf of any Holder of a Security or coupon any plan of reorganization, arrangement, adjustment or composition affecting the Securities of such series or the rights of any Holder thereof, or to authorize the Trustee for the Securities or coupons of any series to vote in respect of the claim of any Holder in any such proceeding for the election of a trustee in bankruptcy or other person performing similar functions.
Section 505. Trustee May Enforce Claims Without Possession of Securities or Coupons.
All rights of action and claims under this Indenture or the Securities or coupons of any series may be prosecuted and enforced by the Trustee for the Securities of any series without the
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possession of any of the Securities or coupons of such series or the production thereof in any proceeding relating thereto, and any such proceeding instituted by such Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607, be for the ratable benefit of the Holders of the Securities and coupons of such series in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee for the Securities of any series pursuant to this Article with respect to the Securities or coupons of such series shall be applied in the following order, at the date or dates fixed by such Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, if any, upon presentation of the Securities or coupons of such series, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due such Trustee under Section 607;
Second: To the payment of the amounts then due and unpaid upon the Securities and coupons of such series for principal of (and premium, if any) and interest, if any, on such Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities and coupons for principal (and premium, if any) and interest, if any, respectively; and
Third: The balance, if any, to the Company.
Section 507. Limitation on Suits.
No Holder of any Security of any particular series or any related coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) an Event of Default with respect to that series shall have occurred and be continuing and such Holder shall have previously given written notice to the Trustee for the Securities of such series of such default and the continuance thereof;
(2) the Holders of not less than 30% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee for the Securities of such series to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to such Trustee indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;
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(4) such Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to such Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more Holders of Securities of that series shall have any right in any manner whatsoever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Securities of that series, or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all the Holders of Securities of that series.
Section 508. Unconditional Right of Holders to Receive Principal (and Premium, if any) and Interest, if any.
Notwithstanding any other provision in this Indenture, the Holder of any Security or coupon shall have the right which is absolute and unconditional to receive payment of the principal of (and premium, if any) and (subject to Section 307) interest, if any, on such Security on the respective Stated Maturities expressed in such Security or coupon (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee for the Securities of any series or any Holder of a Security or coupon has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to such Trustee or to such Holder, then and in every such case the Company, such Trustee and the Holders of Securities or coupons shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of such Trustee and such Holders shall continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee for the Securities of any series or to the Holders of Securities or coupons is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
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Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee for the Securities of any series or of any Holder of any Security of such series to exercise any right or remedy accruing upon any Event of Default with respect to the Securities of such series shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to such Trustee for the Securities or coupons of any series or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by such Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of any particular series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee for the Securities of such series with respect to the Securities of that series or exercising any trust or power conferred on such Trustee with respect to such Securities, provided that:
(1) such direction shall not be in conflict with any rule of law or with this Indenture, the Securities or any Note Guarantee, and could not involve the Trustee in personal liability; and
(2) such Trustee may take any other action deemed proper by such Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
Except as otherwise specified for a series of Securities pursuant to Section 301 and subject to Section 502, the Holders of not less than a majority in principal amount of the Outstanding Securities of any particular series and any related coupons may on behalf of the Holders of all the Securities of that series waive any past default hereunder with respect to that series and its consequences, except:
(1) a default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of that series; or
(2) a default with respect to a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of that series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security or coupon by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in
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any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for the Securities or coupons of any series for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee for the Securities of any series, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any particular series or to any suit instituted by any Holder of any Security or coupon for the enforcement of the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series or the payment of any coupon on or after the respective Stated Maturities expressed in such Security or coupon (or, in the case of redemption, on or after the Redemption Date).
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee for any series of Securities, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 516. Judgment Currency.
If, for the purpose of obtaining a judgment in any court with respect to any obligation of the Company hereunder or under any Security or any related coupon, it shall become necessary to convert into any other currency or currency unit any amount in the currency or currency unit due hereunder or under such Security or coupon, then such conversion shall be made by the Currency Determination Agent at the Market Exchange Rate as in effect on the date of entry of the judgment (the “Judgment Date”). If pursuant to any such judgment, conversion shall be made on a date (the “Substitute Date”) other than the Judgment Date and there shall occur a change between the Market Exchange Rate as in effect on the Judgment Date and the Market Exchange Rate as in effect on the Substitute Date, the Company agrees to pay such additional amounts, if any, as may be necessary to ensure that the amount paid is equal to the amount in such other currency or currency unit which, when converted at the Market Exchange Rate as in effect on the Judgment Date, is the amount due hereunder or under such Security or coupon. Any amount due from the Company under this Section 516 shall be due as a separate debt and is not to be affected by or merged into any judgment being obtained for any other sums due hereunder or in respect of any Security or coupon. In no event, however, shall the Company be required to pay more in the currency or currency unit due hereunder or under such Security or coupon at the Market Exchange Rate as in effect on the Judgment Date than the amount of currency or currency unit stated to be due hereunder or under such Security or coupon so that in any event the Company’s obligations hereunder or under such Security or coupon will be effectively maintained as obligations in such currency or currency unit, and the Company shall be entitled to withhold (or be reimbursed for, as the case may be) any excess of the amount actually realized upon any such conversion on the Substitute Date over the amount due and payable on the Judgment Date.
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ARTICLE 6
The Trustee
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to the Securities of any series for which the Trustee is serving as such,
(1) such Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against such Trustee; and
(2) in the absence of bad faith on its part, such Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to such Trustee and conforming to the requirements of this Indenture.
(b) In case an Event of Default with respect to a series of Securities has occurred and is continuing, the Trustee for the Securities of such series shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee for Securities of any series from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section;
(2) such Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) such Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any particular series, determined as provided in Section 512, relating to the time, method and place of conducting any proceeding for any remedy available to such Trustee, or exercising any trust or power conferred upon such Trustee, under this Indenture with respect to the Securities of that series; and
(4) no provision of this Indenture shall require the Trustee for any series of Securities to expend or risk its own funds or otherwise incur any financial liability in the
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performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee for any series of Securities shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect to Securities of any particular series, the Trustee for the Securities of such series shall give to Holders of Securities of that series, in the manner set forth in Section 106, notice of such default known to such Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of that series, or in the deposit of any sinking fund payment with respect to Securities of that series, such Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of such Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Securities of that series and related coupons. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of that series.
Section 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee for any series of Securities may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, discretion, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order (other than delivery of any Security, together with any coupons appertaining thereto, to the Trustee for authentication and delivery pursuant to Section 303 which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors of the Company may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture such Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, such Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’ Certificate;
(d) such Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
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(e) such Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any series pursuant to this Indenture for which it is acting as Trustee, unless such Holders shall have offered to such Trustee security or indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) such Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, discretion, consent, order, bond, debenture or other paper or document, but such Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters at it may see fit, and, if such Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company;
(g) the Trustee may employ or retain such counsel, accountants, appraisers or other experts or advisers as it may reasonably require for the purpose of determining and discharging its rights and duties hereunder and shall not be responsible for any misconduct on the part of any of them;
(h) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(i) the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder; and
(k) the Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication thereof and in any coupons shall be taken as the statements of the Company, as
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the case may be, and neither the Trustee for any series of Securities, nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee for any series of Securities makes no representations as to the validity or sufficiency of this Indenture or of the Securities of any series or coupons, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities, and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Company are true and correct, subject to the qualifications set forth therein. Neither the Trustee for any series of Securities nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee for any series of Securities, any Authenticating Agent, Paying Agent, Security Registrar or any other agent of the Company, or such Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not such Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee for any series of Securities in trust hereunder need not be segregated from other funds except as provided in Section 115 and except to the extent required by law. The Trustee for any series of Securities shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company in writing, as the case may be.
Section 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee for each series of Securities as the Company and the Trustee shall agree in writing from time to time such compensation in Dollars for all services rendered by it hereunder as shall be agreed upon in writing from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee for each series of Securities in Dollars upon its request for all reasonable expenses, disbursements and advances incurred or made by such Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify such Trustee, its employees, officers, directors and agents in Dollars for, and to hold them harmless against, any loss, damage, claims, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending themselves against any claim, whether asserted by the Company or any Holder or any other Person, or liability in connection with the exercise or performance of any of their powers or duties hereunder.
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As security for the performance of the obligations of the Company under this Section, the Trustee for any series of Securities shall have a lien prior to the Securities upon all property and funds held or collected by such Trustee as such, except funds held in trust for the payment of principal of (and premium, if any) or interest, if any, on particular Securities.
When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 501(4) or Section 501(5), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law.
Section 608. Disqualification; Conflicting Interests.
The Trustee for the Securities shall be subject to the provisions of Section 310(b) of the Trust Indenture Act during the period of time required thereby. Nothing herein shall prevent the Trustee from filing with the Commission the application referred to in the penultimate paragraph of Section 310(b) of the Trust Indenture Act. In determining whether the Trustee has a conflicting interest as defined in Section 310(b) of the Trust Indenture Act with respect to the Securities of any series, there shall be excluded Securities of any particular series of Securities other than that series.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder for each series of securities which shall be
(i) a corporation or banking company organized and doing business under the laws of the United States of America, any state thereof, or the District of Columbia, authorized under such laws to exercise corporate trust powers, and subject to supervision or examination by Federal or State authority, or
(ii) a corporation or other Person organized and doing business under the laws of a foreign government that is permitted to act as Trustee pursuant to a rule, regulation, or other order of the Commission, authorized under such laws to exercise corporate trust powers, and subject to supervision or examination by authority of such foreign government or a political subdivision thereof substantially equivalent to supervision or examination applicable to United States institutional trustee, having a combined capital and surplus of at least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. Neither the Company nor any Person directly or indirectly controlling, controlled by, or under the common control of the Company shall serve as Trustee for the Securities. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereunder specified in this Article.
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Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee for the Securities of any series and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
(b) The Trustee for the Securities of any series may resign at any time with respect to the Securities of such series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee for the Securities of such series within 60 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(c) The Trustee for the Securities of any series may be removed at any time with respect to the Securities of such series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to such Trustee and to the Company.
(d) If at any time:
(1) the Trustee for the Securities of any series shall fail to comply with Section 310(b) of the Trust Indenture Act pursuant to Section 608 hereof after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security of such series for at least six months, unless the Trustee’s duty to resign is stayed in accordance with the provisions of Section 310(b) of the Trust Indenture Act, or
(2) such Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(3) such Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of such Trustee or of its property shall be appointed or any public officer shall take charge or control of such Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove such Trustee and appoint a successor Trustee or (ii) subject to Section 514, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor Trustee.
(e) If the Trustee for the Securities of any series shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for the Securities of any series for any cause, the Company, by a Board Resolution, shall promptly appoint a successor Trustee with respect to the Securities of such series and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor
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Trustee with respect to the Securities of such series shall have not been appointed by the Company pursuant to this Section 610, then a successor Trustee may be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee. If no successor Trustee for the Securities of such series shall have been so appointed by the Company or the Holders and shall have accepted appointment in the manner required by Section 611, and if such Trustee to be replaced is still incapable of acting, any Holder who has been a bona fide Holder of a Security of such series for at least six months, on behalf of himself and all others similarly situated, or the retiring Trustee, may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series in the manner and to the extent provided in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities of that series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) Every such successor Trustee appointed hereunder with respect to the Securities of any series shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall
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constitute such Trustees co-trustees of the same trust and each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in Subsections (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee for the Securities of any series shall be qualified and eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee for the Securities of any series may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of such Trustee, shall be the successor of such Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee or the Authenticating Agent for such series then in office, any successor by merger, conversion or consolidation to such authenticating Trustee or Authenticating Agent, as the case may be, may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee or successor Authenticating Agent had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
The Trustee is subject to Section 311(a) of the Trust Indenture Act, excluding any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent indicated.
Section 614. Authenticating Agents.
At any time when any of the Securities of any series remain Outstanding, the Trustee for the Securities of such series may, subject to its sole discretion, appoint one or more
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Authenticating Agents with respect to the Securities of such series, which may include the Company or any Affiliate of the Company, with power to act on the Trustee’s behalf and subject to its discretion in the authentication and delivery of Securities of such series in connection with transfers and exchanges under Sections 304, 305 and 1107 as fully to all intents and purposes as though such Authenticating Agent had been expressly authorized by those Sections of this Indenture to authenticate and deliver Securities of such series. For all purposes of this Indenture, the authentication and delivery of Securities of such series by an Authenticating Agent for such Securities pursuant to this Section shall be deemed to be authentication and delivery of such Securities “by the Trustee” for the Securities of such series. Any such Authenticating Agent shall at all times be a corporation organized and doing business under the laws of the United States or of any State, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually pursuant to law or the requirements of such supervising or examining authority, then for the purposes of this Section the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent for any series of Securities shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, consolidation or conversion to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate trust business of any Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, if such successor corporation is otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the parties hereto or the Authenticating Agent or such successor corporation.
Any Authenticating Agent for any series of Securities may resign at any time by giving written notice of resignation to the Trustee for such series and to the Company. The Trustee for any series of Securities may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company in the manner set forth in Section 105. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent for any series of Securities shall cease to be eligible under this Section, the Trustee for such series may appoint a successor Authenticating Agent, shall give written notice of such appointment to the Company and shall give written notice of such appointment to all Holders of Securities of such series in the manner set forth in Section 106. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
If an appointment with respect to one or more series of Securities is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certification of authentication, an alternate certificate of authentication in the following form:
“This is one of the Securities of the series designated therein described in the within-mentioned Indenture.
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REGIONS BANK, as Trustee
| By | By | |||||
| As Authenticating Agent | Authorized Signatory” |
ARTICLE 7
Holders’ Lists and Reports by Trustee and the Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each particular series of Securities, the Company will furnish or cause to be furnished to the Trustee for the Securities of such series,
(a) semi-annually, not more than 15 days after each Regular Record Date relating to Securities of each series at the time Outstanding (or, if there is no Regular Record Date relating to that series, on June 30 and December 31), a list, in such form as such Trustee may reasonably require, containing all the information in the possession or control of the Company or any of its Paying Agents other than such Trustee as to the names and addresses of the Holders of that series as of such dates,
(b) on semi-annual dates on each year to be determined pursuant to Section 301 if the Securities of such series do not bear interest, a list of similar form and content, and
(c) at such other times as such Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished,
excluding from any such list names and addresses received by such Trustee in its capacity as Security Registrar for the Securities of such series, if so acting.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee for each series of Securities shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of the Securities of such series contained in the most recent lists furnished to such Trustee as provided in Section 701 and the names and addresses of Holders of the Securities of such series received by such Trustee in its capacity as Security Registrar for such series, if so acting. The Trustee for each series of Securities may destroy any list relating to such series of Securities furnished to it as provided in Section 701 upon receipt of a new list relating to such series so furnished.
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(b) If three or more Holders of Securities of any particular series (hereinafter referred to as “applicants”) apply in writing to the Trustee for the Securities of any such series, and furnish to such Trustee reasonable proof that each such applicant has owned a Security of that series for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders of Securities of that series with respect to their rights under this Indenture or under the Securities of that series and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then such Trustee shall, within five Business Days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at the time by such Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders of Securities of that series whose names and addresses appear in the information preserved at the time by such Trustee in accordance with Section 702(a), and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.
If any such Trustee shall elect not to afford such applicants access to that information, such Trustee shall, upon the written request of such applicants, mail to each Holder of Securities of that series whose name and address appears in the information preserved at the time by such Trustee in accordance with Section 702(a), a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to such Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender, such Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of such Trustee, such mailing would be contrary to the best interests of the Holders of Securities of that series or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, such Trustee shall mail copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise such Trustee shall be relieved of any obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities of each series or coupons, by receiving and holding the same, agrees with the Company and the Trustee for the Securities of such series that neither the Company nor such Trustee, nor any agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of the Securities of such series in accordance with Section 702(b), regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 702(b).
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Section 703. Reports by Trustee.
(a) Within 60 days after March 15 of each year, the Trustee for the Securities of each series shall mail to each Holder of the Securities of such series entitled to receive reports pursuant to Section 704(3), a brief report dated as of such date that complies with Section 313(a) of the Trust Indenture Act. The Trustee for the Securities of each series shall also comply with Sections 313(b), 313(c) and 313(d) of the Trust Indenture Act.
(b) At the time that the Trustee for the Securities of each series mails such a report to the Holders of Securities of such series, each such Trustee shall file a copy of that report with the Commission and with each stock exchange on which the Securities of that series are listed. The Company shall provide notice to the appropriate Trustee when the Securities of any series are listed on any stock exchange.
Section 704. Reports by Company.
The Company will:
(1) file with the Trustee for the Securities of such series, within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if the Company is not required to file information, documents or reports pursuant to either of said Sections, then it will file with such Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee for the Securities of such series and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents, and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders of Securities of each series, as provided in Section 703(a), within 30 days after the filing thereof with the Trustee for the Securities of such series, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (1) and (2) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee, subject to Section 601 hereof, is entitled to rely exclusively on Officers’ Certificates).
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ARTICLE 8
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation or convey or transfer its properties and assets substantially as an entirety to any Person unless:
(1) either the Company shall be the continuing corporation or the corporation (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer the properties and assets of the Company substantially as an entirety shall be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia, and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee for each series of Securities, in form reasonably satisfactory to each such Trustee, the due and punctual payment of the principal of (and premium, if any) and interest, if any, (including all additional amounts, if any, payable pursuant to Section 516) on all the Securities and any related coupons and the performance of every covenant of this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of Default with respect to any series of Securities, and no event which, after notice or lapse of time, or both, would become an Event of Default with respect to any series of Securities, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee for each series of Securities an Officers’ Certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section 802. Successor Person Substituted.
Upon any consolidation or merger, or any conveyance or transfer of the properties and assets of the Company substantially as an entirety in accordance with Section 801, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein and thereafter the predecessor Person shall be relieved of all obligations and covenants under this Indenture, the Securities and any related coupons and, in the event of any such consolidation, merger, conveyance or transfer, the Company as the predecessor Person may thereupon or at any time thereafter be dissolved, wound up, or liquidated.
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ARTICLE 9
Supplemental Indentures
Section 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the Company and, if applicable, each of the Guarantors, if any, in each case when authorized by a Board Resolution, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to such Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or any Guarantor (if any), as the case may be, and the assumption by any such successor of the covenants of the Company or any such Guarantor (if any) herein and in the Securities; or
(2) to add to the covenants of the Company and, if applicable, the Guarantors (if any), for the benefit of the Holders of all or any particular series of Securities and any related coupons (and, if such covenants are to be for the benefit of fewer than all series of Securities, stating that such covenants are being included solely for the benefit of such series), or to surrender any right or power herein conferred upon the Company or any such Guarantor (if any); or
(3) to add any additional Events of Default with respect to any or all series of Securities (and, if any such Event of Default applies to fewer than all series of Securities, stating each series to which such Event of Default applies); provided, however, that in respect of any such additional Events of Default, such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may limit the remedies available to the Trustee upon such default or may limit the right of Holders of a majority in aggregate principal amount of that or those series of Securities to which such additional Events of Default apply to waive such default; or
(4) to pledge property to the Trustee as security for the Securities; or
(5) to reflect the addition or release of any Guarantor in accordance with Article Fourteen hereof; or
(6) to add to or to change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal of (or premium, if any) or interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities of other authorized denominations, to provide for the issuance of uncertificated Securities of any series in addition to or in place of any certificated Securities and to make all appropriate changes for such purposes; provided, however, that any such action shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect; or
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(7) to change or eliminate any of the provisions of this Indenture, provided, however, that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or
(8) to evidence and provide for the acceptance of appointment hereunder of a Trustee other than Regions Bank as Trustee for a series of Securities and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 609; or
(9) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611(b); or
(10) to add to the conditions, limitations and restrictions on the authorized amount, form, terms or purposes of issue, authentication and delivery of Securities, as herein set forth, other conditions, limitations and restrictions thereafter to be observed; or
(11) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Section 401; provided, however, that any such action shall not adversely affect the interests of the Holders of Securities of such series and any related coupons or any other series of Securities in any material respect; or
(12) to add to or change or eliminate any provisions of this Indenture as shall be necessary or desirable in accordance with any amendments to the Trust Indenture Act or to maintain the qualification of this Indenture under the Trust Indenture Act; or
(13) to issue and establish the form and terms of any series of Securities with any terms permitted by the Trust Indenture Act whether or not the provisions hereunder specifically permit the terms in this Indenture to be changed; or
(14) to conform any non-conforming language or defined terms in the text of this Indenture or any Securities to any provision of the section “Description of the Notes” contained in the prospectus or other offering document used in connection with the initial sale of such Securities so that such provision in the “Description of Notes” section of such prospectus or other offering document reflects a verbatim recitation of a provision of this Indenture; or
(15) to change any other provisions of this Indenture with respect to any series of Securities; provided, however, that any such action shall not adversely affect the interests of the Holders of Securities of such series and any related coupons or any other series of Securities in any material respect; or
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(16) to make any other provisions with respect to matters or questions arising under this Indenture, provided any such provision other shall not adversely affect the Holders of Securities of any series in any material respect; or
(17) to cure any ambiguity or mistake, to correct or supplement any provision herein which may be inconsistent with any other provision herein, to convey, transfer, assign, mortgage or pledge any property to or with the Trustee for the Securities of any series or to surrender any right or power herein conferred upon the Company, or to make any other provisions with respect to matters or questions arising under this Indenture, provided such action shall not adversely affect the interests of the Holders of Securities of any particular series in any material respect.
Section 902. Supplemental Indentures with Consent of Holders.
The Company and, if applicable, the Guarantors (if any), in each case, when authorized by a Board Resolution, may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of such Securities and any related coupons under this Indenture, but only with the consent of the Holders of more than 50% in aggregate principal amount of the Outstanding Securities of each series of Securities then Outstanding affected thereby, in each case by Act of said Holders of Securities of each such series delivered to the Company, the Guarantors (if any) and the Trustee for Securities of each such series; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon, if any (or, in the case of OID Securities, reduce the rate of accretion of original issue discount), or any premium payable upon the redemption thereof, or reduce the amount of the principal of an OID Security that would be due and payable upon a declaration of acceleration of the Maturity thereof, or provable in bankruptcy, or, in the case of Indexed Securities, reduce the amount payable in accordance with the terms of those Securities upon a declaration of acceleration of Maturity thereof, or provable in bankruptcy, pursuant to Section 502, or change the Place of Payment, or the currency or currency unit in which any Security or the principal or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date); or reduce or alter the method of computation of any amount payable upon redemption, repayment or purchase of any Securities by the Issuer (or the time when such redemption, repayment or purchase may be made); or release any Note Guarantee by any Guarantor (if any) other than as provided in this Indenture (it being understood that any release effected by Section 802 shall not constitute any of the foregoing); or
(2) reduce the percentage in principal amount of the Outstanding Securities of any particular series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture; or
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(3) modify any of the provisions of this Section or Section 513, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder of a Security or coupon with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements of Sections 609, 611(b), 901(8) and 901(9).
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee for any series of Securities shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Officers’ Certificate and Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and that all conditions to the execution of such supplemental indenture have been satisfied. The Trustee for any series of Securities may, but shall not be obligated to, enter into any such supplemental indenture which affects such Trustee’s own rights, liabilities, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder and of any coupons appertaining thereto shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
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Section 906. Reference in Securities to Supplemental Indentures.
Securities of any particular series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee for the Securities of such series, bear a notation in form approved by such Trustee as to any matter provided for in such supplemental indenture. If the Company or the Guarantors (if any) shall so determine, new Securities of any series and any related coupons so modified as to conform, in the opinion the Board of Directors of the Company or the Guarantors (if any), to any such supplemental indenture may be prepared and executed by the Company or the Guarantors (if any) and such Securities may be authenticated and delivered by such Trustee in exchange for Outstanding Securities of such series and any related coupons.
ARTICLE 10
Covenants
Section 1001. Payment of Principal (and Premium, if any) and Interest, if any.
The Company agrees, for the benefit of each particular series of Securities, that it will duly and punctually pay in the currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d)) the principal of (and premium, if any) and interest, if any, on that series of Securities in accordance with the terms of the Securities of such series, any coupons appertaining thereto and this Indenture. Unless otherwise specified as contemplated by Section 301 with respect to any series of Securities, any interest due on Bearer Securities on or before Maturity shall be payable only upon presentation and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature. The interest, if any, due in respect of any temporary or permanent Global Security, as provided in the terms and conditions of such Security, shall be payable only upon presentation of such Security to the Trustee thereof for notation thereon of the payment of such interest.
Section 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities the Company will maintain in each Place of Payment for that series an office or agency where Securities of that series may be presented or surrendered for payment, an office or agency where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company with respect to the Securities of that series and this Indenture may be served. If Securities of a series are issuable as Bearer Securities, the Company will maintain (A) an office or agency (which may be the same office or agency) in a Place of Payment for that series in the United States where any Registered Securities of that series may be presented or surrendered for payment, where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange, where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served and where Bearer Securities of that series and related coupons may be presented or surrendered for payment in the circumstances described in the
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following paragraph (and not otherwise), (B) subject to any laws or regulations applicable thereto, in a Place of Payment for that series which is located outside the United States, an office or agency where Securities of that series and related coupons may be presented and surrendered for payment; provided, however, that if the Securities of that series are listed on the Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, the Company will maintain a Paying Agent for the Securities of that series in Luxembourg or any other required city located outside the United States, as the case may be, so long as the Securities of that series are listed on such exchange, and (C) subject to any laws or regulations applicable thereto, in a Place of Payment for that series located outside the United States an office or agency where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee for the Securities of that series of the location, and any change in the location, of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency in respect of any series of Securities or shall fail to furnish the Trustee for the Securities of that series with the address thereof, such presentations (to the extent permitted by law), and surrenders of Securities of that series may be made and notices and demands may be made or served at the Corporate Trust Office of such Trustee, except that Bearer Securities of that series and the related coupons may be presented and surrendered for payment at the offices specified in the Security, and the Company hereby appoints the same as its agent to receive such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to Section 301, no payment of principal (and premium, if any) or interest, if any, on Bearer Securities shall be made at any office or agency of the Company in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States. Payments will not be made in respect of Bearer Securities or coupons appertaining thereto pursuant to presentation to the Company, or its designated Paying Agents within the United States. Notwithstanding the foregoing, payment of principal of (and premium, if any) and interest, if any, on any Bearer Security denominated and payable in Dollars will be made at the office of the Company’s Paying Agent in the United States, if, and only if, payment in Dollars of the full amount of such principal, premium or interest, as the case may be, at all offices or agencies outside the United States maintained for that purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions and the Company has delivered to the Trustee an Opinion of Counsel to that effect.
The Company may also from time to time designate one or more other offices or agencies (in or outside the Place of Payment) where the Securities of one or more series may be presented or surrendered for any or all of the purposes specified above in this Section and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for such purpose. The Company will give prompt written notice to the Trustee for the Securities of each series so affected of any such designation or rescission and of any change in the location of any such office or agency. Unless otherwise specified with respect to any Securities pursuant to Section 301 with respect to a series of Securities, the Company hereby designates as a Place of Payment for each series of Securities the office or agency of the
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Company in the Borough of Manhattan, the City of New York, and initially appoints the Trustee at its Corporate Trust Office as Paying Agent in such city and as its agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to Section 301, if and so long as the Securities of any series (i) are denominated in a currency other than Dollars or (ii) may be payable in a currency other than Dollars, or so long as it is required under any other provision of the Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, a Currency Determination Agent.
Section 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any particular series of Securities and any related coupons, it will, on or before each due date of the principal of (and premium, if any) or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d)) sufficient to pay the principal (and premium, if any) and interest, if any, so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee for the Securities of such series of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any particular series of Securities and any related coupons, it will, prior to each due date of the principal of (and premium, if any) or interest, if any, on any such Securities, deposit with a Paying Agent for the Securities of such series a sum (in the currency or currency unit described in the preceding paragraph) sufficient to pay the principal (and premium, if any) and interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled thereto, and (unless such Paying Agent is the Trustee for the Securities of such series) the Company will promptly notify such Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any particular series of Securities other than the Trustee for the Securities of such series to execute and deliver to such Trustee an instrument in which such Paying Agent shall agree with such Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest, if any, on Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give such Trustee notice of any default by the Company (or any other obligor upon the Securities) in the making of any payment of principal (or premium, if any) and interest, if any, on Securities of that series; and
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(3) at any time during the continuation of any such default, upon the written request of such Trustee, forthwith pay to such Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee for the Securities of any series all sums held in trust by the Company or such Paying Agent, such sums to be held by such Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to such Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Section 1004. Statements as to Compliance.
The Company will deliver to the Trustee for each series of Securities, within 120 days after the end of each fiscal year of the Company (beginning with the fiscal year in which the first series of Securities under this Indenture has been issued), a written statement signed by the principal executive officer, principal financial officer or principal accounting officer of the Company stating that:
(1) a review of the activities of the Company and the Guarantors, if any, during such year and of performance under this Indenture has been made under his supervision; and
(2) to the best of his or her knowledge, based on such review, the Company and the Guarantors, if any, is in compliance with all conditions and covenants under this Indenture.
For purposes of this Section, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture.
Section 1005. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any right or franchise if the Board of Directors of the Company shall determine that the preservation thereof is no longer necessary or desirable in the conduct of the business of the Company.
Section 1006. Waiver of Certain Covenants.
The Company and the Guarantors, if any, may omit in any particular instance to comply with any covenant or condition set forth in Sections 1004 and 1005 (and any other covenant or condition in addition to those set forth herein applicable to Securities of any series pursuant to Section 301 hereof), if before or after the time for such compliance the Holders of more than 50% in principal amount of the Outstanding Securities of each series of Securities affected by the omission shall, in each case by Act of such Holders, either waive such compliance in such
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instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee for the Securities of each series with respect to any such covenant or condition shall remain in full force and effect.
Section 1007. Calculation of Original Issue Discount.
If applicable, the Company shall file with the Trustee promptly at the end of each calendar year (i) a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on Outstanding Securities as of the end of such year and (ii) such other specific information relating to such original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time.
Section 1008. Statement by Officers as to Default.
The Company shall deliver to the Trustee, within five Business Days after the Company becomes aware of the occurrence of any Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, an Officers’ Certificate setting forth the details of such Event of Default or event and the action which the Company proposes to take with respect thereto.
ARTICLE 11
Redemption of Securities
Section 1101. Applicability of this Article.
Redemption of Securities of any series (whether by operation of a sinking fund or otherwise) as permitted or required by any form of Security issued pursuant to this Indenture shall be made in accordance with such form of Security and this Article; provided, however, that if any provision of any such form of Security shall conflict with any provision of this Article, the provision of such form of Security shall govern.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities of any series shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company of less than all of the Securities of any particular series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee for the Securities of such series) notify such Trustee by Company Request of such Redemption Date and of the principal amount of Securities of that series to be redeemed and shall deliver to such Trustee such documentation and records as shall enable such Trustee to select the Securities to be redeemed pursuant to Section 1103. In the case of any redemption of Securities of any series prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee for Securities of such series with an Officers’ Certificate evidencing compliance with such restriction.
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Section 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities are to be redeemed, the Company may select the series to be redeemed, and if less than all the Securities of any series are to be redeemed, the particular Securities of that series to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee for the Securities of such series, from the Outstanding Securities of that series not previously called for redemption, by such method as such Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series, or any integral multiple thereof) of the principal amount of Securities of that series of a denomination larger than the minimum authorized denomination for Securities of that series pursuant to Section 302 in the currency or currency unit in which the Securities of such series are denominated.
The Trustee for the Securities of any series to be redeemed shall promptly notify the Company in writing of the Securities of such series selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106 not later than the thirtieth (30th) day and not earlier than the sixtieth (60th) day prior to the Redemption Date, unless as set forth otherwise pursuant to Section 301, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of a particular series are to be redeemed, the identification (and, in the case of partial redemption, the respective principal amounts) of the particular Securities to be redeemed, including the Identifying Number of such Securities,
(4) in case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the Holder will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price will become due and payable upon each such Security or portion thereof, and that interest thereon, if any (or in the case of OID Securities, original issue discount), shall cease to accrue on and after said date,
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(6) the place or places where such Securities, together in the case of Bearer Securities with all coupons appertaining thereto, if any, maturing after the Redemption Date are to be surrendered for payment of the Redemption Price,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by all coupons maturing subsequent to the date fixed for redemption or the amount of any such missing coupon or coupons will be deducted from the Redemption Price or security or indemnity satisfactory to the Company, the Trustee for such series and any Paying Agent is furnished, and
(9) if Bearer Securities of any series are to be redeemed and any Registered Securities of such series are not to be redeemed, and if such Bearer Securities may be exchanged for Registered Securities not subject to redemption on this Redemption Date pursuant to Section 305 or otherwise, the last date, as determined by the Company, on which such exchanges may be made.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee for such Securities in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
Prior to the opening of business on any Redemption Date, the Company shall deposit with the Trustee for the Securities to be redeemed or with a Paying Agent for such Securities (or, if the Company is acting as its own Paying Agent for such Securities, segregate and hold in trust as provided in Section 1003) an amount of money in the currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such Series and except as provided in Sections 311(b) and 311(d)) sufficient to pay the principal amount of (and premium, if any, thereon), and (except if the Redemption Date shall be an Interest Payment Date) any accrued interest on, all the Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified in the currency or currency unit in which the Securities of such series are payable (except as otherwise provided pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d)) and from and after such date (unless the Company shall default in the payment of the Redemption Price) such Securities shall cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below, shall be void. Upon surrender of such Security
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for redemption in accordance with said notice together with all coupons, if any, appertaining thereto maturing after the Redemption Date, such Security or specified portions thereof shall be paid by the Company at the Redemption Price; provided, however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of coupons for such interest, and provided, further, that unless otherwise specified as contemplated by Section 301, installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied by all coupons appertaining thereto maturing after the Redemption Date, such Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing coupons or the surrender of such missing coupon or coupons may be waived by the Company if there is furnished to the Company, the Trustee for such Security and any Paying Agent such security or indemnity as they may require to save the Company, such Trustee and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to such Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest represented by coupons shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Redemption Date at a rate per annum equal to the rate borne by the Security (or, in the case of (i) OID Securities, the Security’s Yield to Maturity or (ii) Indexed Securities, the rate determined in accordance with the specified terms of those Securities).
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be surrendered at the Place of Payment (with, if the Company or the Trustee for such Security so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, and the Security Registrar for such Security duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute and such Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Registered Security or Securities, of any authorized denomination as requested by such Holder, of the same series and having the same terms and provisions and in an aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Registered Security so surrendered.
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ARTICLE 12
Sinking Funds
Section 1201. Applicability of this Article.
Redemption of Securities through operation of a sinking fund as permitted or required by any form of Security issued pursuant to this Indenture shall be made in accordance with such form of Security and this Article; provided, however, that if any provision of any such form of Security shall conflict with any provision of this Article, the provision of such form of Security shall govern.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any particular series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of Securities of any particular series is herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any particular series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any particular series as provided for by the terms of Securities of that series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption), together in the case of any Bearer Securities of such series with all unmatured coupons appertaining thereto, and (2) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided, however, that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee for such Securities at the principal amount thereof and the amount of such sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 30 days prior to each sinking fund payment date for any particular series of Securities, the Company will deliver to the Trustee for the Securities of such series an Officers’ Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash in the currency or currency unit in which the Securities of that series are payable (except as otherwise specified pursuant to Section 301 for the Securities of that series and except as provided in Sections 311(b) and 311(d)) and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 1202 and shall state the basis for such credit and that such Securities have not previously been so credited and will also deliver to such Trustee any Securities to be so delivered. Such Trustee shall select
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the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE 13
Meetings of Holders of Securities
Section 1301. Purposes for Which Meetings May be Called.
If Securities of a series are issuable as Bearer Securities, a meeting of Holders of Securities of such series may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series.
Section 1302. Call, Notice and Place of Meetings.
(a) The Trustee for any series of Securities that includes Bearer Securities, may at any time call a meeting of the Holders of Securities of such series for any purpose specified in Section 1301, to be held at such time and at such place in the Borough of Manhattan, The City of New York, or in London, as such Trustee shall determine. Notice of every meeting of Holders of Securities of such series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 106, not less than 20 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding Securities of any such series shall have requested the Trustee for any such series to call a meeting of the Holders of Securities of such series for any purpose specified in Section 1301, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and such Trustee shall not have made the first publication of the notice of such meeting within 30 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place in the Borough of Manhattan, The City of New York, or in London, for such meeting and may call such meeting for such purposes by giving notice thereof as provided in subsection (a) of this Section.
Section 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be
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present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee for such series and its counsel and any representatives of the Company and its counsel.
Section 1304. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Subject to Section 1305(d), notice of the reconvening of any adjourned meeting shall be given as provided in Section 1302(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly that Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of that series; provided, however, that except as limited by the proviso to Section 902, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage which is less than a majority in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such series and the related coupons, whether or not present or represented at the meeting.
Section 1305. Determination of Voting Rights; Conduct and Adjournment of Meetings.
(a) Notwithstanding any other provision of this Indenture, the Trustee for any series of Securities that includes Bearer Securities may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of such series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 104 and the appointment of any proxy shall be
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proved in the manner specified in Section 104 or by having the signature of the person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized by Section 104 to certify to the holding of Bearer Securities. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee for any series of Securities that includes Bearer Securities shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of Securities as provided in Section 1302(b), in which case the Company or the Holders of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount of Securities of such series held or represented by him as determined in accordance with Section 115; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of holders of Securities of any series duly called pursuant to Section 1302 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting; and the meeting may be held as so adjourned without further notice.
Section 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in triplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 1302 and, if applicable, Section 1304. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee for such series of Securities to be preserved by such Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
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ARTICLE 14
NOTE GUARANTEES
Section 1401. Guarantee.
(a) Subject to this Article Fourteen, each of the Guarantors, if any, hereby, jointly and severally, unconditionally guarantees to each Holder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, (the “Note Guarantee”) that:
(1) the principal of, premium, if any, and interest on, the Securities will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Securities, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(2) in case of any extension of time of payment or renewal of any Securities or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors, if any, will be jointly and severally obligated to pay the same immediately. Each Guarantor, if any, agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The Guarantors, if any, hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor, if any. Each Guarantor, if any, hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Note Guarantee will not be discharged except by complete performance of the obligations contained in the Securities and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors, if any, or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, if any, any amount paid by either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
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(d) Each Guarantor, if any, agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor, if any, further agrees that, as between the Guarantors, if any, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article Five hereof, such obligations (whether or not due and payable) will forthwith become due and payable by the Guarantors, if any, for the purpose of this Note Guarantee. The Guarantors, if any, will have the right to seek contribution from any non-paying Guarantor, if any, so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.
Section 1402. Limitation on Guarantor Liability.
Each Guarantor, if any, and by its acceptance of Securities, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor, if any, not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors, if any, hereby irrevocably agree that the obligations of such Guarantor, if any, will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor, if any, that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor, if any, in respect of the obligations of such other Guarantor, if any, under this Article Fourteen, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance.
Section 1403. Execution and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 1401 hereof, each Guarantor, if any, hereby agrees that a notation of such Note Guarantee substantially in the form attached as Exhibit F hereto will be endorsed by an Officer of such Guarantor, if any, on each Securities authenticated and delivered by the Trustee and that this Indenture will be executed on behalf of such Guarantor, if any, by one of its Officers.
Each Guarantor, if any, hereby agrees that its Note Guarantee set forth in Section 1401 hereof will remain in full force and effect notwithstanding any failure to endorse on each Security a notation of such Note Guarantee.
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If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates the Security on which a Note Guarantee is endorsed, the Note Guarantee will be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors, if any.
Section 1404. Guarantors May Consolidate, etc., on Certain Terms.
Except as otherwise provided in Section 1405 hereof, no Guarantor, if any, will, and the Company will not permit any Guarantor, if any, to, consolidate or merge with or into or wind up into (whether or not such Guarantor, if any, is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all its properties or assets in one or more related transactions, to any Person unless: (a) such Guarantor, if any, is the surviving entity or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor, if any) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Guarantor, if any, or such Person, as the case may be, being herein called the “Successor Person”); (b) the Successor Person, if other than such Guarantor, if any, expressly assumes all the obligations of such Guarantor, if any, under this Indenture and such Guarantor’s Note Guarantee, if any, pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee; (c) immediately after such transaction, no Default or Event of Default exists; and (d) the Company shall have delivered to the Trustee an Officer’s Certificate and an opinion of counsel, each stating that such consolidation, merger or transfer and such supplemental indentures, if any, comply with this Indenture.
In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Note Guarantee endorsed upon the Securities and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, if any, such successor Person will succeed to and be substituted for the Guarantor, if any, with the same effect as if it had been named herein as a Guarantor, if any. Such successor Person thereupon may cause to be signed any or all of the Note Guarantees to be endorsed upon all of the Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee. All the Note Guarantees so issued will in all respects have the same legal rank and benefit under this Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Note Guarantees had been issued at the date of the execution hereof.
Except as set forth in Article 8 hereof, and notwithstanding clause 2 above, nothing contained in this Indenture or in any of the Securities will prevent any consolidation or merger of a Guarantor, if any, with or into the Company or another Guarantor, if any, or will prevent any sale or conveyance of the property of a Guarantor, if any, as an entirety or substantially as an entirety to the Company or another Guarantor, if any.
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Section 1405. Releases.
The Note Guarantee of a Guarantor, if any, will be released:
(a) in connection with any sale or other disposition of all or substantially all the assets of that Guarantor, if any, (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Company or a Company Subsidiary;
(b) in connection with any sale or other disposition of all the Capital Stock of that Guarantor, if any, to a Person that is not (either before or after giving effect to such transaction) the Company or a Company Subsidiary; or
(c) upon Legal Defeasance or Covenant Defeasance or satisfaction and discharge of this Indenture in accordance with Article Four hereof.
Any Guarantor, if any, not released from its obligations under its Note Guarantee as provided in this Section 1405 will remain liable for the full amount of the principal of and interest and premium, if any, on the Securities and for the other obligations of any Guarantor, if any, under this Indenture as provided in this Article Fourteen.
[signature pages follow]
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This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first written above.
| CHS/COMMUNITY HEALTH SYSTEMS, INC., Issuer | ||
| By: | ||
| Name: | ||
| Title: | ||
| REGIONS BANK, Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
EXHIBIT A
[LEGEND IF SECURITY IS A GLOBAL SECURITY]
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 305 OF THE INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 309 OF THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF CHS/COMMUNITY HEALTH SYSTEMS, INC.
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[FACE OF SECURITY]
| CUSIP | ||||
| [TITLE OF SECURITIES] | ||||
| No. | $ | |||
CHS/COMMUNITY HEALTH SYSTEMS, INC.
promises to pay to or registered assigns, the principal sum of Interest Payment Dates [ ] and [ ], commencing on [ ].
Record Dates: [ ] and [ ]
Dated: ,
| CHS/COMMUNITY HEALTH SYSTEMS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
Dated: ,
| This is one of the Securities referred to in the within-mentioned Indenture:
[ ], as Trustee | ||
| By: | ||
| Authorized Signatory | ||
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[Back of Security]
[Insert title of Securities]
[Insert the Global Security Legend, if applicable pursuant to the provisions of the Indenture]
[Insert any legend required by the Internal Revenue Code and the regulations thereunder]
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
| 1. | Interest. |
CHS/Community Health Systems, Inc., a Delaware corporation (herein the “Company” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to , or registered assigns, the principal sum of [Dollars] [if other than Dollars, substitute other currency units] on , [if the Security is to bear interest prior to Stated Maturity, insert — , and to pay interest thereon from or from the most recent Interest Payment Date to which interest has been paid or duly provided for], [semiannually] [if other than semi-annual interest at a fixed rate, insert frequency of payment and payment dates] on and in each year, commencing , and at the Stated Maturity thereof, at [if the Security is to bear interest at a fixed rate, insert — the rate of % per annum], [if the Security is to bear interest at a rate determined with reference to one or more formula, refer to description index below] until the principal hereof is paid or made available for payment] [if applicable, insert — , and (to the extent that the payment of such interest shall be legally enforceable) at [if the Security is to bear interest at a fixed rate, insert — the rate of % per annum on any overdue principal and premium and on any overdue installment of interest from the dates such amounts are due until they are paid or made available for payment]. Interest shall be computed on the basis of [a 360-day year of twelve 30-day months] [if another basis of calculating interest is to be different, insert a description of such method.]
| 2. | Method of Payment. |
The Company will pay interest on the Securities on each [ ] and [ ] to the Persons who are registered Holders of the relevant Securities at the close of business on the [ ] or [ ] next preceding the Interest Payment Date, even if such Securities are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 307 of the Indenture with respect to Defaulted Interest. The Securities will be payable as to principal, premium, if any, and interest at the office or agency of the Company maintained for such purpose in [ ], [if applicable, insert —; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the list provided by the Company to the Registrar and provided, further, that if this Security is a Global Security, payment may be made pursuant to the applicable procedures of the Depositary as permitted in said Indenture]. Such payment shall be in such coin or currency of [the United States of America] [insert other currency or currency unit, if applicable] as at the time of payment is legal tender for payment of public and private debts.
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| 3. | Paying Agent and Registrar. |
Initially, the Trustee under the Indenture will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.
| 4. | Indenture. |
This Security is one of a duly authorized issue of Securities of the Company issued and to be issued in one or more series under an Indenture, dated as of , (herein called the “Indenture”), between the Company and , as Trustee (herein called the “Trustee” which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code § 77aaa-77bbbb). The Securities are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Security conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
| 5. | Redemption. |
[If applicable, insert — The Securities of this series are subject to redemption upon not less than 30 days’ notice to the Holders, [if applicable, insert — (1) on in any year commencing with the year and ending with the year through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [if applicable, insert — on or after , ], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): if redeemed [if applicable insert — on or before , %, and if redeemed] during the 12-month period beginning of the years indicated,
Year Redemption Price Year Redemption Price
and thereafter at a Redemption Price equal to % of the principal amount, together in the case of any such redemption [if applicable, insert — (whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
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[If applicable, insert — The Securities of this series are subject to redemption upon not less than 30 days’ notice to the Holders, (1) on in any year commencing with the year and ending with the year through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert — on or after ], as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning of the years indicated,
| Year |
Redemption Price for Redemption Through Operation of the Sinking Fund |
Redemption Price for Redemption Otherwise than Through Operation of the Sinking Fund | ||
and thereafter at a Redemption Price equal to % of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Date referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert — The sinking fund for this series provides for the redemption on in each year beginning with the year and ending with the year of [if applicable, insert — not less than $ (“mandatory sinking fund”) and not more than] $ aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than through [mandatory] sinking fund payments may be credited against subsequent [if applicable, insert — mandatory] sinking fund payments otherwise required to be made [if applicable, insert — in the inverse order in which they become due].]
[If applicable, insert — The Securities are subject to redemption, as a whole at any time or in part from time to time, at the sole election of the Company, upon not less than 35 or more than 75 days’ notice to the Trustee at a Redemption Price equal to $ .]
[If applicable, insert — The Holder of this Security shall have the right to require the Company to pay this Security in full on , by giving the Company or the Registrar written notice of the exercise of such right not less than 30 or more than 60 days prior to such date.]
[If the Security is subject to redemption, insert — In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
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[If applicable, insert — This Security is not subject to redemption prior to maturity.]
| 6. | Denominations, Transfer, Exchange. |
[If applicable, insert — The Securities of this series are issuable only in registered form without coupons in denominations of $ and any integral multiple thereof.] As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same. A Holder may register the transfer or exchange of the Security as provided in the Indenture and subject to certain limitations therein set forth. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture.
[If applicable, insert — The Securities of this series will be represented by one or more Global Securities registered in the name of , (the “Depositary”), or a nominee of the Depositary. So long as the Depositary, or its nominee, is the registered holder and owner of this Global Security, the Depositary or such nominee, as the case may be, will be considered the sole owner and holder of the Securities for all purposes under the Indenture. The Global Security may be transferred, in whole and not in part, only to the Depositary or another nominee of the Depositary. The Depositary will credit, on its book-entry registration and transfer system, the respective principal amounts of the Securities represented by such Global Security to the accounts of institutions that have accounts with the Depositary or its nominee (“participants”). Ownership of beneficial interests in a Global Security will be shown on, and the transfer of those ownership interests will be effected through, records maintained by the Depositary (with respect to participants’ interests) and such participants (with respect to the owners of beneficial interests in such Global Security).]
[If applicable, insert — The Securities represented by this Global Security are exchangeable for Securities in permanent form of like tenor as such Global Security in denominations of $1,000 and in any greater amount that is an integral multiple thereof if (i) the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for this Global Security or if at any time the Depositary ceases to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, (ii) the Company in its discretion at any time determines not to have all of the Securities of this series represented by the Global Security and notifies the Trustee thereof, or (iii) an Event of Default has occurred and is continuing with respect to the Securities. Any Security that is exchangeable pursuant to the preceding sentence is exchangeable only for Securities of this series.]
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
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| 7. | Persons Deemed Owners. |
The registered Holder of a Security may be treated as its owner for all purposes.
| 8. | Amendment, Supplement and Waiver. |
Subject to certain exceptions, the Indenture and the Securities may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the then outstanding Securities of each series affected by such amendment or supplement. Without the consent of any Holder of a Securities of each series affected by such amendment or supplement, the Indenture and the Securities may be amended or supplemented to, among other things, (a) evidence the succession of another person to the Company or any Guarantor and the assumption of such successor to the covenants in the Indenture; (b) add to the covenants of the Company or Guarantors or to surrender any right or power conferred upon the Company or any such Guarantor; (c) add additional Events of Default with respect to any or all series of Securities; (d) pledge property to the Trustee as security for the Securities; (e) reflect the addition or release of any Guarantor in accordance with Article 14 of the Indenture; (f) revise the provisions of the Indenture with respect to Bearer Securities (provided that such action shall not materially and adversely affect the interests of any Holders of Securities); (g) change provisions of the Indenture, such change only effective when there is no Security Outstanding of any series created prior to such change which is entitled to benefit under such provision; (h) evidence acceptance of a successor Trustee pursuant to the requirements of Section 609 or Section 611(b) of the Indenture; (i) add to the conditions of Securities; (j) supplement any provisions to the extent necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Section 401 of the Indenture (provided that such action shall not materially and adversely affect the interests of any Holders of Securities); (k) revise the Indenture as necessary or desirable in accordance with any amendments to the Trust Indenture Act; (l) issue and establish the form and terms of any series of Securities with any terms permitted by the Trust Indenture Act; (m) conform any provisions of the Indenture or any Securities with the Description of Notes; (n) change any provision of the Indenture with respect to any series of Securities (provided that such action shall not materially and adversely affect the interests of any Holders of Securities); (o) change any provision of the Indenture (provided that such action shall not materially and adversely affect the interests of any Holders of Securities); and (p) cure any ambiguity or mistake.
| 9. | Defaults and Remedies. |
Events of Default include: (a) default for 30 days in the payment when due of interest on the Securities; (b) default in payment when due of principal of or premium, if any, on the Securities; (c) failure by the Company for 90 days to comply with certain other agreements in the Indenture or the Securities; and (d) certain events of bankruptcy or insolvency with respect to the Company or any of its Restricted Subsidiaries. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least [30]% in principal amount of the then outstanding Securities may declare all the Securities to be due and payable. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency involving the Company, all outstanding Securities will become due and payable without further action or notice. Holders may not enforce the Indenture or the Securities except as provided in the Indenture. Subject to certain limitations, Holders of a majority in principal amount of the then
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outstanding Securities may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Securities notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest) if it determines that withholding notice is in their interest. The Holders of a majority in aggregate principal amount of the Securities then outstanding by notice to the Trustee may on behalf of the Holders of all of the Securities waive any past Default or Event of Default and its consequences under the Indenture except a Default or Event of Default in the payment of interest on, or the principal of, the Securities or a Default or Event of Default with respect to a covenant or provision of the Indenture that under Article 9 of the Indenture may not be amended without the consent of the Holder of each of the Outstanding Securities. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.
| 10. | Trustee Dealings with Company. |
The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.
| 11. | No Recourse against Others. |
A director, officer, employee, incorporator or stockholder, of the Company, as such, shall not have any liability for any obligations of the Company or the Guarantors under the Securities or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Securities.
| 12. | [If applicable, insert—Guarantees. |
The payment by the Company of the principal of and interest on the Security is fully and unconditionally guaranteed on a joint and several basis by each of the Guarantors on the terms set forth in the Indenture.]
| 13. | Authentication. |
This Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
| 14. | Abbreviations. |
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
A-8
| 15. | CUSIP Numbers. |
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Securities and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Securities or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:
Regions Bank
150 4th Avenue North, Suite 900
Nashville, Tennessee 37219
Attention: Corporate Trust Services
| 16. | GOVERNING LAW. |
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS SECURITY WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.
A-9
ASSIGNMENT FORM
To assign this Security, fill in the form below:
| (I) or (we) assign and transfer this Security to: | ||
| (Insert assignee’s legal name) |
| (Insert assignee’s soc. sec. or tax I.D. no.) | ||
| (Print or type assignee’s name, address and zip code) | ||
and irrevocably appoint to transfer this Security on the books of the Company. The agent may substitute another to act for him.
Date:
| Your Signature: | ||
| (Sign exactly as your name appears on the face of this Security) |
| Signature Guarantee*: | ||
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
A-10
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY*
The following exchanges of a part of this Global Security for an interest in another Global Security or for a Definitive Security, or exchanges of a part of another Global Security or Definitive Security for an interest in this Global Security, have been made:
| Principal Amount of |
Amount of decrease in Principal Amount of this Global Security |
Amount of increase in Principal Amount of this Global Security |
Signature of authorized officer of Trustee or Date of Exchange Security Custodian | |||
* This schedule should be included only if the Security is issued in global form.
A-11
EXHIBIT B
[FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR CLEARSTREAM BANKING BY A BENEFICIAL OWNER OF SECURITIES, IN ORDER TO RECEIVE A DEFINITIVE BEARER SECURITY IN EXCHANGE FOR AN INTEREST IN A TEMPORARY GLOBAL SECURITY OR TO EXCHANGE AN INTEREST IN A TEMPORARY GLOBAL SECURITY FOR AN INTEREST IN A PERMANENT GLOBAL SECURITY]
CHS/COMMUNITY HEALTH SYSTEMS, INC.
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of ● (the “Indenture”) between CHS/Community Health Systems, Inc. (the “Company”) and Regions Bank, as Trustee. Terms used herein unless otherwise defined shall have the meanings ascribed to them in the Indenture.
This is to certify that as of the date hereof [and except as provided in the fourth paragraph hereof]*, $ principal amount of the above-captioned Securities represented by a temporary Global Security (the “temporary Global Security”) held by you for our account is:
(i) beneficially owned by persons that are not United States persons (as defined below);
(ii) owned by United States person(s) that are (a) foreign branches of United States financial institutions (as defined in United States Treasury Regulation Section 1.165-12(c)(1)(v) (“financial institutions”)) purchasing for their own account or for resale, or (b) United States person(s) who acquired the beneficial interest in the temporary Global Security through foreign branches of United States financial institutions and who hold the beneficial interest in the temporary Global Security through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, for the benefit of the Company, that it will comply with the requirements of Section 165(j) (3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as amended, and the regulations thereunder); or
(iii) owned by financial institution(s) for the purpose of resale during the restricted period (as defined in United States Treasury Regulation Section 1.163-5(c)(2)(i)(D)(7)) and, in addition, financial institution(s) described in this clause (iii) (whether or not also described in clause (i) or (ii)), further certify that they have not acquired the beneficial interest in the temporary Global Security for the purpose of resale directly or indirectly to a United States person or to a person within the United States.
* Delete if inappropriate.
B-1
“United States person” means a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States and an estate or trust the income of which is subject to United States federal income taxation regardless of its source, and “United States” means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction (including the Commonwealth of Puerto Rico).
[This certificate excepts and does not relate to $ principal amount of the temporary Global Security held by you for our account as to which we are not able to provide a certificate in this form. We understand that exchange of such portion of the temporary Global Security for [definitive Bearer Securities] [interests in a permanent Global Security] cannot be made until we are able to provide a certificate in this form.]* We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the above-captioned Securities held by you for our account if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
We understand that this certificate is required in connection with certain tax laws and regulations in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.
Dated:
| [Name of Person Making Certification]* | ||
| By: | ||
| * | Delete if inappropriate. |
| * | Delete if inappropriate. |
B-2
EXHIBIT C
[FORM OF CERTIFICATE TO BE GIVEN TO THE APPROPRIATE TRUSTEE BY EUROCLEAR OR CLEARSTREAM BANKING REGARDING THE EXCHANGE OF A TEMPORARY GLOBAL SECURITY FOR DEFINITIVE SECURITIES OR FOR A PORTION OF A PERMANENT GLOBAL SECURITY]
CHS/COMMUNITY HEALTH SYSTEMS, INC.
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of ● (the “Indenture”) between CHS/Community Health Systems, Inc. (the “Company”) and Regions Bank, as Trustee. Terms used herein unless otherwise defined shall have the meanings ascribed to them in the Indenture.
We refer to that portion of the temporary Global Security in respect of the above-captioned Securities which is herewith submitted to be exchanged for [definitive Bearer Securities] [interests in a permanent Global Security] (the “Submitted Portion”) as provided in the Prospectus Supplement dated [insert date of Prospectus Supplement] in respect of such issue. This is to certify that (i) we have received in writing or by tested telex or electronically (in accordance with the requirements of United States Treasury Regulation Section 1.163-5(c)(2)(i)(D)(3)(ii)) a certificate or certificates with respect to the entire Submitted Portion, substantially in the form of Exhibit C to the Indenture, and (ii) the Submitted Portion includes no part of the temporary Global Security excepted in such certificates.
We further certify that as of the date hereof we have not received any notification from any of the persons giving such certificates to the effect that the statements made by them with respect to any part of the Submitted Portion are no longer true and cannot be relied on as of the date thereof.
We understand that this certificate is required in connection with certain tax laws and regulations in the United States of America. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings. Submitted Portion:
| U.S. $ | ||||||||
| Date: | ||||||||
| [Euroclear Bank S.A./N.V.]* [Clearstream Banking S.A.] | ||||||||
| By: |
||||||||
| * | Delete if inappropriate. |
C-1
EXHIBIT D
[FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR CLEARSTREAM BANKING BY A BENEFICIAL OWNER OF SECURITIES, IN ORDER TO RECEIVE PAYMENT ON A TEMPORARY GLOBAL SECURITY]
CHS/COMMUNITY HEALTH SYSTEMS, INC.
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of ● (the “Indenture”) between CHS/Community Health Systems, Inc. (the “Company”) and Regions Bank, as Trustee. Terms used herein unless otherwise defined shall have the meanings ascribed to them in the Indenture.
This is to certify that as of the date hereof [and except as provided in the fourth paragraph hereof]*, $ principal amount of the above- captioned Securities represented by a temporary Global Security (the “temporary Global Security”) held by you for our account is:
(i) beneficially owned by persons that are not United States persons (as defined below);
(ii) owned by United States person(s) that are (a) foreign branches of United States financial institutions (as defined in United States Treasury Regulation Section 1.165-12(c)(1)(v) (“financial institutions”)) purchasing for their own account or for resale, or (b) United States person(s) who acquired the beneficial interest in the temporary Global Security through foreign branches of United States financial institutions and who hold the beneficial interest in the temporary Global Security through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, for the benefit of the Company, that it will comply with the requirements of Section 165(j) (3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as amended, and the regulations thereunder); or
(iii) owned by financial institution(s) for the purpose of resale during the restricted period (as defined in United States Treasury Regulation Section 1.163-5(c)(2)(i)(D)(7)) and, in addition, financial institution(s) described in this clause (iii) (whether or not also described in clause (i) or (ii)), further certify that they have not acquired the beneficial interest in the temporary Global Security for the purpose of resale directly or indirectly to a United States person or to a person within the United States.
“United States person” means a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States and an estate or trust the income of which is subject to United States federal income taxation regardless of its source, and “United States” means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction (including the Commonwealth of Puerto Rico).
| * | Delete if inappropriate. |
D-1
[This certificate excepts and does not relate to $ principal amount of the temporary Global Security held by you for our account as to which we are not able to provide a certificate in this form. We understand that payments, if any, due with respect to such portion of the temporary Global Security cannot be made until we are able to provide a certificate in this form.]*
We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the above-captioned Securities held by you for our account if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
We understand that this certificate is required in connection with certain tax laws and regulations in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.
Dated:
| [Name of Person Making Certification] | ||
| By: |
||
| * | Delete if inappropriate. |
D-2
EXHIBIT E
[FORM OF CERTIFICATE TO BE GIVEN TO THE APPROPRIATE TRUSTEE BY EUROCLEAR OR CLEARSTREAM BANKING REGARDING PAYMENT ON A TEMPORARY GLOBAL SECURITY]
CHS/COMMUNITY HEALTH SYSTEMS, INC.
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of ● (the “Indenture”) between CHS/Community Health Systems, Inc. (the “Company”) and Regions Bank, as Trustee. Terms used herein unless otherwise defined shall have the meanings ascribed to them in the Indenture.
We refer to that portion of the temporary Global Security in respect of the above-captioned Securities for which we hereby request that you make payment to us of the amounts payable on the relevant payment date (the “Submitted Portion”) as provided in the Prospectus Supplement dated [insert date of Prospectus Supplement] in respect of such issue. This is to certify that (i) we have received in writing or by tested telex or electronically (in accordance with the requirements of United States Treasury Regulation Section 1.163- 5(c)(2)(i)(D)(3)(ii)) a certificate or certificates with respect to the entire Submitted Portion, substantially in the form of Exhibit E to the Indenture, and (ii) the Submitted Portion includes no part of the temporary Global Security excepted in such certificates.
We further certify that as of the date hereof we have not received any notification from any of the persons giving such certificates to the effect that the statements made by them with respect to any part of the Submitted Portion are no longer true and cannot be relied on as of the date thereof.
We understand that this certificate is required in connection with certain tax laws and regulations in the United States of America. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.
Submitted Portion:
| U.S. $ | ||||||||
| Date: | ||||||||
E-1
| [Euroclear Bank S.A./N.V.]* [Clearstream Banking S.A.] | ||
| By: |
||
| * | Delete if inappropriate. |
E-2
EXHIBIT F
[FORM OF NOTATION OF NOTE GUARANTEE]
For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture dated as of ● (the “Indenture”) among CHS/Community Health Systems, Inc. (the “Company”), the Guarantors party thereto and Regions Bank, as trustee (the “Trustee”), (a) the due and punctual payment of the principal of, premium, if any, and interest on, the [Securities], whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on overdue principal of and interest on the [Securities], if any, if lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of any [Securities] or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of [Securities] and to the Trustee pursuant to the Note Guarantee and the Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee. Each Holder of a [Security], by accepting the same, (a) agrees to and shall be bound by such provisions and (b) appoints the Trustee attorney-in-fact of such Holder for such purpose.
Capitalized terms used but not defined herein have the meanings given to them in the Indenture.
| [Name of Guarantor(s)] | ||
| By: |
||
| Name: | ||
| Title: | ||
F-1
Exhibit 4.4
CHS/COMMUNITY HEALTH SYSTEMS, INC.,
Issuer
REGIONS BANK,
Trustee
INDENTURE
Dated as of ●
Subordinated Debt Securities
CROSS-REFERENCE TABLE*
Reconciliation and tie showing the location in the Indenture dated as of ● of the provisions inserted pursuant to Sections 310 to 318(a), inclusive, of the Trust Indenture Act of 1939, as amended.
| Trust Indenture Act Section | Indenture Section | |||
| Section 310 |
(a)(1) | 609 | ||
| (a)(2) | 609 | |||
| (a)(3) | Not Applicable | |||
| (a)(4) | Not Applicable | |||
| (a)(5) | 609 | |||
| (b) | 608 and 610(d) | |||
| (c) | Not Applicable | |||
| Section 311 |
(a) | 613 | ||
| (b) | 613 | |||
| (c) | Not Applicable | |||
| Section 312 |
(a) | 701 and 702(a) | ||
| (b) | 702(b) | |||
| (c) | 702(c) | |||
| Section 313 |
(a) | 703(a) | ||
| (b) | 703(b) | |||
| (c) | 703(a) and 703(b) | |||
| (d) | 703(a) | |||
| Section 314 |
(a) | 704 | ||
| (b) | Not Applicable | |||
| (c) | 102 | |||
| (c)(1) | 102 | |||
| (c)(2) | 102 | |||
| (c)(3) | Not Applicable | |||
| (d) | Not Applicable | |||
| (e) | 102 | |||
| Section 315 |
(a) | 601(a) | ||
| (b) | 602 and 703(a)(7) | |||
| (c) | 601(b) | |||
| (d) | 601(c) | |||
| (d)(1) | 601(a)(1) | |||
| (d)(2) | 601(c)(2) | |||
| (d)(3) | 601(c)(3) | |||
| (e) | 514 | |||
| Section 316 |
(a)(1)(A) | 502 and 512 | ||
| (a)(1)(B) | 513 | |||
| (a)(2) | Not Applicable | |||
| (b) | 508 | |||
| Section 317 |
(a)(1) | 503 | ||
| (a)(2) | 504 | |||
| (b) | 1003 | |||
| Section 318 |
(a) | 107 | ||
| (b) | Not Applicable | |||
| (c) | 107 | |||
* NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
TABLE OF CONTENTS
| PARTIES | 1 | |||||
| RECITALS | 1 | |||||
| ARTICLE 1 Definitions and Other Provisions of General Application | 1 | |||||
| Section 101. |
Definitions. |
1 | ||||
| Section 102. |
Compliance Certificates and Opinions. |
12 | ||||
| Section 103. |
Form of Documents Delivered to Trustee. |
13 | ||||
| Section 104. |
Acts of Holders. |
13 | ||||
| Section 105. |
Notices, Etc., to Trustee and the Company. |
15 | ||||
| Section 106. |
Notice to Holders; Waiver. |
15 | ||||
| Section 107. |
Conflict with Trust Indenture Act. |
16 | ||||
| Section 108. |
Effect of Headings and Table of Contents. |
16 | ||||
| Section 109. |
Successors and Assigns. |
17 | ||||
| Section 110. |
Separability Clause. |
17 | ||||
| Section 111. |
Benefits of Indenture. |
17 | ||||
| Section 112. |
Governing Law. |
17 | ||||
| Section 113. |
Non-Business Day. |
17 | ||||
| Section 114. |
Immunity of Incorporators, Stockholders, Directors and Officers. |
17 | ||||
| Section 115. |
Certain Matters Relating to Currencies. |
18 | ||||
| Section 116. |
Language of Notices, Etc. |
18 | ||||
| ARTICLE 2 Security Forms | 18 | |||||
| Section 201. |
Forms of Securities. |
18 | ||||
| Section 202. |
Form of Trustee’s Certificate of Authentication. |
19 | ||||
| Section 203. |
Securities in Global Form. |
19 | ||||
| Section 204. |
CUSIP Numbers. |
20 | ||||
| ARTICLE 3 The Securities | 20 | |||||
| Section 301. |
Title; Payment and Terms. |
20 | ||||
| Section 302. |
Denominations and Currencies. |
24 | ||||
| Section 303. |
Execution, Authentication, Delivery and Dating. |
24 | ||||
| Section 304. |
Temporary Securities and Exchange of Securities. |
26 | ||||
| Section 305. |
Registration, Registration of Transfer and Exchange. |
29 | ||||
| Section 306. |
Mutilated, Destroyed, Lost and Stolen Securities and Coupons. |
32 | ||||
| Section 307. |
Payment of Interest; Interest Rights Preserved. |
34 | ||||
| Section 308. |
Persons Deemed Owners. |
35 | ||||
| Section 309. |
Cancellation. |
36 | ||||
| Section 310. |
Computation of Interest. |
36 | ||||
| Section 311. |
Currency and Manner of Payments in Respect of Securities. |
37 | ||||
| Section 312. |
Appointment and Resignation of Currency Determination Agent. |
39 | ||||
| ARTICLE 4 Satisfaction and Discharge | 40 | |||||
| Section 401. |
Option to Effect Legal Defeasance or Covenant Defeasance. |
40 | ||||
| Section 402. |
Legal Defeasance and Discharge. |
40 | ||||
-i-
| Section 403. |
Covenant Defeasance. |
40 | ||||
| Section 404. |
Conditions to Legal or Covenant Defeasance. |
41 | ||||
| Section 405. |
Satisfaction and Discharge of Indenture. |
42 | ||||
| Section 406. |
Survival of Certain Obligations. |
43 | ||||
| Section 407. |
Acknowledgment of Discharge by Trustee. |
43 | ||||
| Section 408. |
Application of Trust Moneys. |
44 | ||||
| Section 409. |
Repayment to the Company; Unclaimed Money. |
44 | ||||
| Section 410. |
Reinstatement. |
45 | ||||
| ARTICLE 5 Remedies | 45 | |||||
| Section 501. |
Events of Default. |
45 | ||||
| Section 502. |
Acceleration of Maturity; Rescission and Annulment. |
46 | ||||
| Section 503. |
Collection of Indebtedness and Suits for Enforcement by Trustee. |
48 | ||||
| Section 504. |
Trustee May File Proofs of Claim. |
48 | ||||
| Section 505. |
Trustee May Enforce Claims Without Possession of Securities or Coupons. |
49 | ||||
| Section 506. |
Application of Money Collected. |
50 | ||||
| Section 507. |
Limitation on Suits. |
50 | ||||
| Section 508. |
Unconditional Right of Holders to Receive Principal (and Premium, if any) and Interest, if any. |
51 | ||||
| Section 509. |
Restoration of Rights and Remedies. |
51 | ||||
| Section 510. |
Rights and Remedies Cumulative. |
51 | ||||
| Section 511. |
Delay or Omission Not Waiver. |
52 | ||||
| Section 512. |
Control by Holders. |
52 | ||||
| Section 513. |
Waiver of Past Defaults. |
52 | ||||
| Section 514. |
Undertaking for Costs. |
52 | ||||
| Section 515. |
Waiver of Stay or Extension Laws. |
53 | ||||
| Section 516. |
Judgment Currency. |
53 | ||||
| ARTICLE 6 The Trustee | 54 | |||||
| Section 601. |
Certain Duties and Responsibilities. |
54 | ||||
| Section 602. |
Notice of Defaults. |
55 | ||||
| Section 603. |
Certain Rights of Trustee. |
55 | ||||
| Section 604. |
Not Responsible for Recitals or Issuance of Securities. |
56 | ||||
| Section 605. |
May Hold Securities. |
57 | ||||
| Section 606. |
Money Held in Trust. |
57 | ||||
| Section 607. |
Compensation and Reimbursement. |
57 | ||||
| Section 608. |
Disqualification; Conflicting Interests. |
58 | ||||
| Section 609. |
Corporate Trustee Required; Eligibility. |
58 | ||||
| Section 610. |
Resignation and Removal; Appointment of Successor. |
58 | ||||
| Section 611. |
Acceptance of Appointment by Successor. |
60 | ||||
| Section 612. |
Merger, Conversion, Consolidation or Succession to Business. |
61 | ||||
| Section 613. |
Preferential Collection of Claims Against Company. |
61 | ||||
| Section 614. |
Authenticating Agents. |
61 | ||||
| ARTICLE 7 Holders’ Lists and Reports by Trustee and the Company | 63 | |||||
| Section 701. |
Company to Furnish Trustee Names and Addresses of Holders. |
63 | ||||
| Section 702. |
Preservation of Information; Communications to Holders. |
63 | ||||
-ii-
| Section 703. |
Reports by Trustee. |
64 | ||||
| Section 704. |
Reports by Company. |
65 | ||||
| ARTICLE 8 Consolidation, Merger, Conveyance or Transfer | 65 | |||||
| Section 801. |
Company May Consolidate, Etc., Only on Certain Terms. |
65 | ||||
| Section 802. |
Successor Person Substituted. |
66 | ||||
| ARTICLE 9 Supplemental Indentures | 66 | |||||
| Section 901. |
Section 901. Supplemental Indentures without Consent of Holders. |
66 | ||||
| Section 902. |
Supplemental Indentures with Consent of Holders. |
69 | ||||
| Section 903. |
Execution of Supplemental Indentures. |
70 | ||||
| Section 904. |
Effect of Supplemental Indentures. |
70 | ||||
| Section 905. |
Conformity with Trust Indenture Act. |
70 | ||||
| Section 906. |
Reference in Securities to Supplemental Indentures. |
70 | ||||
| ARTICLE 10 Covenants | 71 | |||||
| Section 1001. |
Payment of Principal (and Premium, if any) and Interest, if any. |
71 | ||||
| Section 1002. |
Maintenance of Office or Agency. |
72 | ||||
| Section 1003. |
Money for Securities Payments to be Held in Trust. |
73 | ||||
| Section 1004. |
Statements as to Compliance. |
74 | ||||
| Section 1005. |
Corporate Existence. |
74 | ||||
| Section 1006. |
Waiver of Certain Covenants. |
74 | ||||
| Section 1007. |
Calculation of Original Issue Discount. |
74 | ||||
| Section 1008. |
Statement by Officers as to Default. |
75 | ||||
| ARTICLE 11 Redemption of Securities | 75 | |||||
| Section 1101. |
Applicability of this Article. |
75 | ||||
| Section 1102. |
Election to Redeem; Notice to Trustee. |
75 | ||||
| Section 1103. |
Selection by Trustee of Securities to be Redeemed. |
75 | ||||
| Section 1104. |
Notice of Redemption. |
76 | ||||
| Section 1105. |
Deposit of Redemption Price. |
77 | ||||
| Section 1106. |
Securities Payable on Redemption Date. |
77 | ||||
| Section 1107. |
Securities Redeemed in Part. |
78 | ||||
| ARTICLE 12 Sinking Funds | 78 | |||||
| Section 1201. |
Applicability of this Article. |
78 | ||||
| Section 1202. |
Satisfaction of Sinking Fund Payments with Securities. |
79 | ||||
| Section 1203. |
Redemption of Securities for Sinking Fund. |
79 | ||||
| ARTICLE 13 Meetings of Holders of Securities | 80 | |||||
| Section 1301. |
Purposes for which Meetings May be Called. |
80 | ||||
| Section 1302. |
Call, Notice and Place of Meetings. |
80 | ||||
| Section 1303. |
Persons Entitled to Vote at Meetings. |
80 | ||||
| Section 1304. |
Quorum; Action. |
81 | ||||
| Section 1305. |
Determination of Voting Rights; Conduct and Adjournment of Meetings. |
81 | ||||
| Section 1306. |
Counting Votes and Recording Action of Meetings. |
82 | ||||
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| ARTICLE 14 Note Guarantees | 82 | |||||
| Section 1401. |
Guarantee. |
82 | ||||
| Section 1402. |
Limitation on Guarantor Liability. |
84 | ||||
| Section 1403. |
Execution and Delivery of Note Guarantee. |
84 | ||||
| Section 1404. |
Guarantors May Consolidate, etc., on Certain Terms. |
84 | ||||
| Section 1405. |
Releases. |
85 | ||||
| ARTICLE 15 Subordination of Securities | 86 | |||||
| Section 1501. |
Agreement to Subordinate. |
86 | ||||
| Section 1502. |
Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Securities. |
86 | ||||
| Section 1503. |
No Payment on Securities in Certain Circumstances. |
88 | ||||
| Section 1504. |
Payments on Securities Permitted. |
89 | ||||
| Section 1505. |
Authorization of Holders to Trustee to Effect Subordination. |
89 | ||||
| Section 1506. |
Notices to Trustee. |
89 | ||||
| Section 1507. |
Trustee as Holder of Senior Indebtedness. |
90 | ||||
| Section 1508. |
Modifications of Terms of Senior Indebtedness. |
90 | ||||
| Section 1509. |
Reliance on Judicial Order or Certificate of Liquidating Agent. |
91 | ||||
EXHIBITS
| EXHIBIT A. | Form of Securities. | |
| EXHIBIT B. | Form of Certificate To Be Delivered to Euroclear or Clearstream Banking by a Beneficial Owner of Securities in Order to Receive a Definitive Bearer Security in Exchange for an Interest in a Temporary Global Security or to Exchange an Interest in a Temporary Global Security for an Interest in a Permanent Global Security. | |
| EXHIBIT C. | Form of Certificate To Be Given to the Appropriate Trustee by Euroclear or Clearstream Banking Regarding the Exchange of a Temporary Global Security for Definitive Securities or for a Portion of a Permanent Global Security. | |
| EXHIBIT D. | Form of Certificate To Be Delivered to Euroclear or Clearstream Banking by a Beneficial Owner of Securities in Order to Receive Payment on a Temporary Global Security. | |
| EXHIBIT E. | Form of Certificate To Be Given to the Appropriate Trustee by Euroclear or Clearstream Banking Regarding Payment on a Temporary Global Security. | |
| EXHIBIT F. | Form of Notation of Note Guarantee. | |
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INDENTURE dated as of ●, between CHS/COMMUNITY HEALTH SYSTEMS, INC., a corporation duly incorporated and existing under the laws of Delaware and having its principal executive office at 4000 Meridian Boulevard, Franklin, Tennessee 37067 (hereinafter called “the Company”), and REGIONS BANK, an Alabama banking corporation, as Trustee (hereinafter called the “Trustee”).
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its lawful purposes securities (hereinafter called the “Securities”) evidencing its subordinated indebtedness and has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of the Securities, unlimited as to principal amount, to have such titles, to bear such rates of interest, to mature at such time or times and to have such other provisions as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done, and the Company proposes to do all things necessary to make the Securities, when executed by the Company and authenticated and delivered by the Trustee hereunder and duly issued by the Company, the valid obligations of the Company as hereinafter provided.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or series thereof, as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 101. Definitions.
For all purposes of this Indenture and all Securities issued hereunder, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States, and the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States at the date or time of such computation; and
(4) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Three and Article Six, are defined in those Articles.
“Act”, when used with respect to any Holder, has the meaning specified in Section 104.
“Affiliate” means, with respect to a specified Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control”, when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Authenticating Agent” means any Person authorized to authenticate and deliver Securities on behalf of the Trustee for the Securities of any series pursuant to Section 614.
“Authorized Newspaper” means a newspaper customarily published at least once a day for at least five days in each calendar week and of general circulation in the City of New York, in London and, to the extent the Securities are listed on the Luxembourg Stock Exchange and the Luxembourg Stock Exchange shall so require, in Luxembourg or, if it shall be impracticable in the opinion of the Company to make such publication, in another capital city in Western Europe. Such publication (which may be in different newspapers) is expected to be made in the Eastern edition of The Wall Street Journal, in the London edition of the Financial Times and, if applicable, in the Luxemburger Wort.
“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.
“Bearer Security” means any Security established pursuant to Section 201 which is payable to bearer.
“Board of Directors” means:
(1) with respect to the Company, either the board of directors or any duly authorized committee of that board or any director or directors and/or officer or officers to whom that board or committee shall have duly delegated its authority, of the Company;
(2) with respect to any other corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;
(3) with respect to a partnership, the board of directors of the general partner of the partnership;
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(4) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and
(5) with respect to any other Person, the board or committee of such Person serving a similar function.
“Board Resolution” means, when used with reference to any Person, (1) a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person, as the case may be, to have been duly adopted by its Board of Directors or the managing member(s) or the managing partner(s) of such Person and to be in full force and effect on the date of such certification, or (2) a certificate signed by the director or directors or officer or officers or managing member(s) or managing partners(s) to whom the Board of Directors shall have duly delegated its authority, and delivered to the Trustee for the Securities of any series.
“Business Day” means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which commercial banks are authorized or required by law, regulation or executive order to close in The City of New York or in the city in which the Corporate Trust Office is located; provided, however, that, with respect to Securities not denominated in Dollars, the day is also not a day on which commercial banks are authorized or required by law, regulation or executive order to close in the Principal Financial Center of the country issuing the Foreign Currency or currency unit or, if the Foreign Currency or currency unit is euro, the day is also a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) System is open; provided, further, that, with respect to LIBOR Securities, the day is also a London Business Day.
“Capital Stock” means, with respect to any Person, shares, interests, rights to purchase, warrants, options, participation or other equivalents of or interests in (however designated) equity of such Person, including any preferred stock, but excluding any debt securities convertible into such equity.
“Certificate of a Firm of Independent Public Accountants” means a certificate signed by any firm of independent public accountants of recognized standing selected by the Company. The term “independent” when used with respect to any specified firm of public accountants means such a firm which (1) is in fact independent, (2) does not have any direct financial interest or any material indirect financial interest in the Company or in any other obligor upon the Securities of any series or in any affiliate of the Company or of such other obligor, and (3) is not connected with the Company or such other obligor or any affiliate of the Company or of such other obligor, as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions, but such firm may be the regular auditors employed by the Company. Whenever it is herein provided that any Certificate of a Firm of Independent Public Accountants shall be furnished to the Trustee for Securities of any series, such Certificate shall state that the signer has read this definition and that the signer is independent within the meaning hereof.
“Code” means the Internal Revenue Code of 1986, as amended, and the regulations thereunder.
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“Clearstream Banking” means Clearstream Banking S.A. or its successor.
“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on such date.
“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor corporation.
“Company Request” and “Company Order” mean a written request or order signed in the name of the Company, as the case may be by (1) the Chairman of the Board, a Vice Chairman of the Board, the President or a Vice President and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company, as the case may be, or (2) by any two Persons designated in a Company Order previously delivered to the Trustee for Securities of any series by any two of the foregoing officers and delivered to the Trustee for Securities of any series.
“Component Currency” has the meaning specified in Section 311(e).
“Conversion Event” means the unavailability of any Foreign Currency or currency unit due to the imposition of exchange controls or other circumstances beyond the Company’s control.
“Corporate Trust Office” means the office of the Trustee for Securities of any series at which at any particular time its corporate trust business shall be principally administered, which office of Regions Bank, at the date of the execution of this Indenture, is located at 150 4th Avenue North, Suite 900, Nashville, Tennessee 37219, Attention: Corporate Trust Services, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
“corporation” includes corporations, limited liability companies, associations, companies and business trusts.
“coupon” means any interest coupon appertaining to a Bearer Security.
“Credit Agreement” means the Third Amended and Restated Credit Agreement, dated as of July 25, 2007, as amended and restated as of November 5, 2010, February 2, 2012 and January 27, 2014, by and among the Company, as borrower, Community Health Systems, Inc., the lender parties from time to time party thereto and Credit Suisse AG, as administrative agent and as collateral agent, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, as the same heretofore may have been or hereafter may be further amended (including, without limitation, as to the principal amount), modified, renewed, refunded, replaced or refinanced from time to time (whether or not with the original agents or lenders and whether or not contemplated under the original agreement relating thereto).
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“Currency Determination Agent” means, with respect to Securities of any series, unless otherwise specified in the Securities of any series, a New York Clearing House bank designated pursuant to Section 301 or Section 312.
“Defaulted Interest” has the meaning specified in Section 307.
“Depositary” means, with respect to the Securities of any series issuable or issued in the form of a Global Security, the Person designated as Depositary by the Company pursuant to Section 301 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as used with respect to the Securities of any such series shall mean the Depositary with respect to the Securities of that series.
“Dollars” and the sign “$” mean the currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
“Election Date” has the meaning specified in Section 311(e).
“Euroclear” means Euroclear Bank S.A./N.V. or its successor.
“Event of Default” has the meaning specified in Section 501.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, as in force at the date as of which this Indenture is executed; provided, however, that in the event the Securities Exchange Act of 1934 is amended after such date, “Exchange Act” means, to the extent required by any such amendment, the Securities Exchange Act of 1934 as so amended.
“Exchange Date” has the meaning specified in Section 304.
“Foreign Currency” means a currency issued and actively maintained as a country’s recognized unit of domestic exchange by the government of any country other than the United States or by any recognized confederation or association of such governments, and such term shall include, without limitation, the euro.
“Global Exchange Agent” has the meaning specified in Section 304.
“Global Securities” means Securities in global form.
“Government Obligations” means securities which are (i) direct obligations of the government which issued the currency in which the Securities of a particular series are payable (except as provided in Sections 311(b) and 311(d), in which case with respect to Securities for which an election has occurred pursuant to Section 311(b), or a Conversion Event has occurred as provided in Section 311(d), such obligations shall be issued in the currency or currency unit in which such Securities are payable as a result of such election or Conversion Event) or
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(ii) obligations of a Person controlled or supervised by or acting as an agency or instrumentality of the government which issued the currency in which the Securities of such series are payable (except as provided in Sections 311(b) and 311(d), in which case with respect to Securities for which an election has occurred pursuant to Section 311(b), or a Conversion Event has occurred as provided in Section 311(d)), such obligations shall be issued in the currency or currency unit in which such Securities are payable as a result of such election or Conversion Event), the payment of which is unconditionally guaranteed by such government, which, in either case, are full faith and credit obligations of such government payable in such currency and are not callable or redeemable at the option of the issuer thereof.
“Guarantors” means any Subsidiary of the Company and any other Affiliate of the Company who specified in a Board Resolution of the Company establishing a series of Securities pursuant to Section 301 hereof, for the purpose of providing a Note Guarantee of Securities pursuant to this Indenture until (a) a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Guarantors” shall mean such successor Person or (b) such Person shall have been released from its Note Guarantee pursuant to the provisions of this Indenture.
“Holder” means, when used with respect to any Security, in the case of a Registered Security, the Person in whose name a Security is registered in the Security Register, and in the case of a Bearer Security, the bearer thereof and, when used with respect to any coupon, means any bearer thereof.
“Identifying Numbers” has the meaning specified in Section 204.
“Incur” means issue, create, assume, guarantee, incur or otherwise become liable for; and the terms “Incurred” and “Incurrence” have meanings correlative to the foregoing.
“Indenture” means this instrument as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of a particular series of Securities established as contemplated by Section 301.
“Indexed Security” means any Security as to which the amount of payments of principal (and premium, if any) and/or interest, if any, due thereon is determined with reference to the rate of exchange between the currency or currency unit in which the Security is denominated and any other specified currency or currency unit, to the relationship between two or more currencies or currency units, to the price of one or more specified securities or commodities, to one or more securities or commodities exchange indices or other indices or by other similar methods or formulas, all as specified in accordance with Section 301.
“interest” means, when used with respect to an OID Security which by its terms bears interest only after Maturity, interest payable after Maturity.
“Interest Payment Date” means, when used with respect to any Security, the Stated Maturity of an installment of interest on such Security.
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“Issue Date” means the date on which the Securities of a particular series are originally issued under this Indenture.
“Judgment Date” has the meaning specified in Section 516.
“LIBOR” means, with respect to any series of Securities, the rate specified as LIBOR for such Securities in accordance with Section 301.
“LIBOR Currency” means the currency specified pursuant to Section 301 as to which LIBOR will be calculated or, if no currency is specified pursuant to Section 301, Dollars.
“LIBOR Security” means any Security which bears interest at a floating rate calculated with reference to LIBOR.
“London Business Day” means, with respect to any LIBOR Security, a day on which commercial banks are open for business, including dealings in the LIBOR Currency, in London.
“Luxembourg Stock Exchange” means, unless specified with respect to any particular series of Securities, the Luxembourg Stock Exchange.
“Market Exchange Rate” means, with respect to any Foreign Currency or currency unit on any date, unless otherwise specified in accordance with Section 301, the noon buying rate in The City of New York for cable transfers in such Foreign Currency or currency unit as certified for customs purposes by the Federal Reserve Bank of New York for such Foreign Currency or currency unit.
“Maturity” means, when used with respect to any Security, the date on which the principal (or, if the context so requires, in the case of an OID Security, a lesser amount or, in the case of an Indexed Security, an amount determined in accordance with the specified terms of that Security) of that Security becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, request for redemption, repayment at the option of the holder, pursuant to any sinking fund or otherwise.
“Note Guarantee” has the meaning stated in Section 1401.
“Notice of Default” has the meaning specified in Section 501(3).
“Officers’ Certificate” means, when used with reference to the Company, a certificate signed by the Chairman of the Board, a Vice Chairman of the Board, the Chief Executive Officer, the President or a Vice President (any reference herein to a Vice President of the Company, as the case may be, shall be deemed to include any Vice President of the Company, as the case may be, whether or not designated by a number or a word or words added before or after the title “Vice President”), and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or an Assistant Secretary of the Company, as the case may be, and delivered to the Trustee for the Securities of any series.
“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel to the Company or any Subsidiary of the Company.
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“OID Security” means a Security which provides for an amount (excluding any amounts attributable to accrued but unpaid interest thereon) less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.
“Outstanding” means, when used with respect to Securities, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee for such Securities or delivered to such Trustee for cancellation;
(2) Securities or portions thereof for whose payment or redemption money in the necessary amount and in the required currency or currency unit has been theretofore deposited with the Trustee for such Securities or any Paying Agent (other than the Company or any Guarantor (if any) or other obligor upon the Securities) in trust or set aside and segregated in trust by the Company or any Guarantor (if any) or other obligor upon the Securities (if the Company or any Guarantor (if any) or other obligor upon the Securities shall act as its own Paying Agent) for the Holders of such Securities; provided, however, that, if such Securities or portions thereof are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture, or provision therefor satisfactory to such Trustee has been made; and
(3) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented proof satisfactory to the Trustee for such Securities that any such Securities are held by a bona fide holder in due course;
provided, however, that in determining whether the Holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, (a) Securities owned by the Company, the Guarantors (if any) or any other obligor upon the Securities or any Affiliate of the Company, the Guarantors (if any) or such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee for such Securities shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of such Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of such Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company, the Guarantors (if any) or any other obligor upon the Securities or any Affiliate of the Company, the Guarantors (if any) or of such other obligor, (b) the principal amount of an OID Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration pursuant to Section 502 and (c) the principal amount of a Security denominated in a Foreign Currency or currency unit that shall be deemed to be outstanding for such purposes shall be determined in accordance with Section 115.
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“Parent” means Community Health Systems, Inc., a Delaware corporation, and its successors or any other direct or indirect parent of the Company.
“Paying Agent” means Regions Bank, or any other Person authorized by the Company to pay the principal of (and premium, if any) or interest, if any, on any Securities of any series on behalf of the Company.
“Person” means any individual, firm, corporation, partnership, association, joint venture, tribunal, limited liability company, trust, government or political subdivision or agency or instrumentality thereof, or any other entity or organization.
“Place of Payment” means, when used with respect to the Securities of any particular series, the place or places where the principal of (and premium, if any) and interest, if any, on the Securities of that series are payable, as contemplated by Section 301 and 1002.
“Predecessor Security” means, with respect to any particular Security, every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security, and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a mutilated, destroyed, lost or stolen coupon appertains shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Security or the Security to which the mutilated, destroyed, lost or stolen coupon appertains, as the case may be.
“Principal Financial Center” means, unless otherwise specified in accordance with Section 301:
(1) the capital city of the country issuing the Foreign Currency or currency unit, except that with respect to Dollars, Australian dollars, Canadian dollars, South African rand and Swiss francs, the “Principal Financial Center” will be The City of New York, Sydney and Melbourne, Toronto, Johannesburg and Zurich, respectively, and with respect to Euros, the “Principal Financial Center” will be London; or
(2) the capital city of the country to which the LIBOR Currency relates, except that with respect to Dollars, Canadian dollars, South African rand and Swiss francs, the “Principal Financial Center” will be The City of New York, Toronto, Johannesburg and Zurich, respectively, and with respect to Euros, the “Principal Financial Center” will be London.
“Property” means any asset, revenue or any other property, including Capital Stock, whether tangible or intangible, real or personal, including, without limitation, any right to receive income.
“Redemption Date” means, when used with respect to any Security to be redeemed in whole or in part, the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price” means, when used with respect to any Security to be redeemed, the price at which it is to be redeemed pursuant to the terms of this Indenture or in any Security issued hereunder.
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“Registered Security” means any Security established pursuant to this Indenture which is registered in the Security Register.
“Regular Record Date” means, with respect to the interest payable on any Interest Payment Date on the Registered Securities of any series, the date, if any, specified for that purpose as contemplated by Section 301 whether or not a Business Day.
“Responsible Officer” means, when used with respect to the Trustee for any series of Securities, (i) any vice president, assistant vice president, treasurer, assistant treasurer or any trust officer of the Trustee who shall have direct responsibility for the administration of the trust created by this Indenture or (ii) any other officer of the Corporate Trust Department of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject and who is charged with the administration of this Indenture.
“Securities” means securities evidencing indebtedness of the Company authenticated and delivered under this Indenture. “Security Register” and “Security Registrar” have the respective meanings specified in Section 305.
“Senior Indebtedness” of the Company or a Guarantor, as the case may be, means, with respect to the Securities of any series and any applicable Note Guarantee thereof (except as otherwise specified as contemplated by Section 301 hereof):
(1) all obligations of the Company or any Guarantor, as the case may be, related to the Credit Agreement, whether for principal, premium, if any, interest, including interest accruing after the filing of, or which would have accrued but for the filing of, a petition by or against the Company or such Guarantor under applicable bankruptcy laws, whether or not such interest is lawfully allowed as a claim after such filing, and all other amounts payable in connection therewith, including, without limitation, any fees, premiums, penalties, expenses, reimbursements, indemnities, damages and other liabilities; and
(2) the principal of, premium, if any, and interest on all other indebtedness of the Company or any Guarantor, as the case may be, other than the Securities, in each case whether outstanding on the date of this Indenture or thereafter created, incurred or assumed, unless, in the case of any particular indebtedness, the instrument creating or evidencing the indebtedness expressly provides that such indebtedness shall not be senior in right of payment to the Securities.
Notwithstanding the foregoing, “Senior Indebtedness” does not include:
(1) indebtedness evidenced by the Securities and the Note Guarantees;
(2) indebtedness of the Company or any applicable Guarantor that is expressly subordinated in right of payment to any Senior Indebtedness of the Company or such Guarantor or the Securities or the applicable Note Guarantee;
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(3) indebtedness of the Company or any applicable Guarantor that by operation of law is subordinate to any general unsecured obligations of the Company or such Guarantor;
(4) indebtedness of the Company or any applicable Guarantor to the extent incurred in violation of any covenant prohibiting the incurrence of indebtedness applicable to the Securities of such series or the Note Guarantee thereof;
(5) any liability for federal, state or local taxes or other taxes, owed or owing by the Company or any applicable Guarantor;
(6) accounts payable or other liabilities owed or owing by the Company or any applicable Guarantor to trade creditors, including guarantees thereof or instruments evidencing such liabilities;
(7) amounts owed by the Company or any applicable Guarantor for compensation to employees or for services rendered to the Company or such Guarantor;
(8) indebtedness of the Company or any applicable Guarantor to any Subsidiary or any other Affiliate of the Company or such Guarantor
(9) Capital Stock of the Company or any applicable Guarantor;
(10) indebtedness which when incurred and without respect to any election under Section 1111(b) of Title 11 of the U.S. Code is without recourse to the Company or any Restricted Subsidiary; and
(11) other indebtedness identified for any series of Securities pursuant to Section 301 hereof.
“series” of Securities means all Securities denoted as part of the same series authorized by or pursuant to a particular Board Resolution.
“Special Record Date” means, with respect to the payment of any Defaulted Interest on the Registered Securities of any series, a date fixed by the Trustee for such series pursuant to Section 307.
“Stated Maturity” means, when used with respect to any Security or any installment of principal thereof or interest thereon, the date specified in such Security or a coupon representing such installment of interest as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of capital stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by (i) such Person, (ii) such Person and one or more Subsidiaries of such Person or (iii) one or more Subsidiaries of such Person.
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“Substitute Date” has the meaning specified in Section 516.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, as in force at the date as of which this Indenture was executed; provided, however, that in the event the Trust Indenture Act is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument and, subject to the provisions of Article Six hereof, shall also include its successors and assigns as Trustee hereunder. If there shall be at one time more than one Trustee hereunder, “Trustee” shall mean each such Trustee and shall apply to each such Trustee only with respect to those series of Securities with respect to which it is serving as Trustee.
“United States” means, unless otherwise specified with respect to Securities of any series, the United States of America (including the states and the District of Columbia), its territories, its possessions (which include, at the date of this Indenture, Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands) and other areas subject to its jurisdiction.
“Yield to Maturity” means, when used with respect to any OID Security, the yield to maturity, if any, set forth on the face thereof.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee for any series of Securities to take any action under any provision of this Indenture or any supplement hereto, the Company shall furnish to such Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with, and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate (other than certificates provided pursuant to Section 1004) or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
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(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, or a certificate or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the opinion, certificate or representations with respect to matters upon which his certificate or opinion is based are erroneous.
Any such Opinion of Counsel or certificate or representations may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing. If Securities of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of such series may, alternatively, be embodied in and evidenced by the record of Holders of Securities of such series voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly called and held in accordance with the provisions of Article Thirteen, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee for the appropriate series of Securities and, where it is hereby expressly required, to the Company. Such instrument or instruments and
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any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee for the appropriate series of Securities and the Company and any agent of such Trustee or the Company, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 1306.
The Company may at its discretion set a record date for purposes of determining the identity of Holders of Registered Securities entitled to vote or consent to any action by vote or consent authorized or permitted under this Indenture, but the Company shall have no obligation to do so. If not set by the Company prior to the first solicitation of Holders of Registered Securities of a particular series made by any Person in respect of any such action, or, in the case of any such vote, prior to such vote, the record date for any such action or vote shall be 30 days prior to the first solicitation of such vote or consent. Upon the fixing of such a record date, those persons who were Holders of Registered Securities at such record date (or their duly designated proxies), and only those persons, shall be entitled with respect to such Registered Securities to take such action by vote or consent or to revoke any vote or consent previously given, whether or not such persons continue to be Holders after such record date.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by an officer of a corporation or association or a member of a partnership, or an official of a public or governmental body, on behalf of such corporation, association, partnership or public or governmental body or by a fiduciary, such certificate or affidavit shall also constitute sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee for the appropriate series of Securities deems reasonably sufficient.
(d) The principal amount and serial numbers of Registered Securities held by any Person, and the date of holding the same, shall be proved by the Security Register.
(e) The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may be proved by the production of such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary, wherever situated, if such certificate shall be deemed by the Trustee for such Securities to be satisfactory, showing that at the date therein mentioned such Person had on deposit with such depositary, or exhibited to it, the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by such Trustee to be satisfactory. The Trustee for such Securities and the Company may assume that such ownership of any Bearer Security continues until (1) another certificate or affidavit bearing a later date issued in respect of the same Bearer
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Security is produced, (2) such Bearer Security is produced to such Trustee by some other Person, (3) such Bearer Security is surrendered in exchange for a Registered Security, or (4) such Bearer Security is no longer Outstanding. The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may also be proved in any other manner which the Company and the Trustee for such Securities deem sufficient.
(f) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee for such Securities, the Security Registrar, any Paying Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
(g) For purposes of this Indenture, any action by the Holders which may be taken in writing may be taken by electronic means or as otherwise reasonably acceptable to the Trustee for the appropriate series of Securities.
Section 105. Notices, Etc., to Trustee and the Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other documents provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee for a series of Securities by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with such Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration, Re: Community Health Systems, Inc., or if sent by facsimile transmission, to a facsimile number provided by the Trustee, with a copy mailed, first class postage prepaid to the Trustee addressed to it as provided above, or
(2) the Company or any of the Guarantors (if any) by such Trustee or by any Holder shall be sufficient for every purpose hereunder (except as provided in paragraph (3) of Section 501) if furnished in writing and mailed, first class postage prepaid, addressed in the case of the Company to it, to the attention of the General Counsel, at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to such Trustee by the Company, or if sent by facsimile transmission, to a facsimile number provided to the Trustee by the Company, with a copy mailed, first class postage prepaid, to the Company, and the Guarantors (if any), as the case may be, addressed to it or them as provided above.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, (1) such notice shall be sufficiently given (unless otherwise herein expressly provided) to Holders of Registered Securities if in writing and mailed, first class postage prepaid, to each Holder affected by such event, at his or her address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice or as otherwise
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permitted by the Trustee; and (2) such notice shall be sufficiently given (unless otherwise herein expressly provided) to Holders of Bearer Securities if published in (a) an Authorized Newspaper on a Business Day or (b) an electronic medium easily accessible by the Holders as may be specified by the Company to such Holders, such publication to be not earlier than the earliest date, and not later than the latest date, prescribed herein for the giving of such notice. Any such notice by publication shall be deemed to have been given on the date of such publication or, if published more than once, on the date of the first publication.
In any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Registered Security shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein. Any notice mailed in the manner prescribed by this Indenture shall be conclusively deemed to have been given whether or not received by any particular Holder. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders of Registered Securities by mail, then such notification as shall be made with the reasonable approval of the Trustee for such Securities shall constitute a sufficient notification for every purpose hereunder.
In case by reason of the suspension of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be made with the reasonable approval of the Trustee for such Securities shall constitute sufficient notice to such Holders for every purpose hereunder. Neither the failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any notice to Holders of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee for such Securities, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture Act through the operation of Section 318(c) thereof, such imposed duties shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the provision shall be deemed to apply to this Indenture as so modified or excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
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Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities or coupons shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities or in any coupons appertaining thereto, expressed or implied, shall give to any Person, other than the parties hereto, any Paying Agent, any Security Registrar, an Authenticating Agent and their successors hereunder and the Holders of Securities or coupons, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 113. Non-Business Day.
Unless otherwise stated with respect to Securities of any series, in any case where any Interest Payment Date, Redemption Date or Stated Maturity of a Security of any particular series shall not be a Business Day at any Place of Payment with respect to Securities of that series, then (notwithstanding any other provision of this Indenture or of the Securities or coupons) payment of principal of (and premium, if any) and interest, if any, with respect to such Security need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
Section 114. Immunity of Incorporators, Stockholders, Directors and Officers.
No recourse shall be had for the payment of the principal of (and premium, if any), or the interest, if any, on any Security or coupon of any series, or for any claim based thereon, or upon any obligation, covenant or agreement of this Indenture, against any incorporator, stockholder, director, officer or employee, as such, past, present or future, of the Company or of any successor of the Company, either directly or indirectly through the Company or any successor of the Company or any Guarantor (if any) or any successor of any Guarantor (if any), whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment of penalty or otherwise; it being expressly agreed and understood that this Indenture and all the Securities and coupons of each series and any related Note Guarantees are solely corporate
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obligations, and that no personal liability whatever shall attach to, or is incurred by, any incorporator, stockholder, director, officer or employee, past, present or future, of the Company or any successor of the Company or any Guarantor (if any) of any successor of any Guarantor (if any), either directly or indirectly through the Company or any successor of the Company or any Guarantor (if any) or any successor of any Guarantor (if any), because of the incurring of the indebtedness hereby authorized or under or by reason of any of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or coupons of any series or any Note Guarantees related thereto, or to be implied herefrom or therefrom; and that all such personal liability is hereby expressly released and waived as a condition of, and as part of the consideration for, the execution of this Indenture and the issuance of the Securities and coupons of each series and the Note Guarantees related thereto.
Section 115. Certain Matters Relating to Currencies.
Subject to Section 311, each reference to any currency or currency unit in any Security, or in the Board Resolution or supplemental indenture relating thereto, shall mean only the referenced currency or currency unit and no other currency or currency unit.
The Trustee shall segregate moneys, funds and accounts held by the Trustee in one currency or currency unit from any moneys, funds or accounts held in any other currencies or currency units, notwithstanding any provision herein which would otherwise permit the Trustee to commingle such amounts.
Whenever any action or Act is to be taken hereunder by the Holders of Securities denominated in a Foreign Currency or currency unit, then for purposes of determining the principal amount of Securities held by such Holders, the aggregate principal amount of the Securities denominated in a Foreign Currency or currency unit shall be deemed to be that amount of Dollars that could be obtained for such principal amount on the basis of a spot rate of exchange specified to the Trustee for such series in an Officers’ Certificate for such Foreign Currency or currency unit into Dollars as of the date the taking of such action or Act by the Holders of the requisite percentage in principal amount of the Securities is evidenced to such Trustee.
Section 116. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, and any published notice may also be in an official language of the country of publication.
ARTICLE 2
Security Forms
Section 201. Forms of Securities.
The Registered Securities, if any, of each series and the Bearer Securities, if any, of each series and related coupons shall be substantially in the form (including global form) of Exhibit A to this Indenture or in such other form as shall be established by or pursuant to a Board
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Resolution of the Company, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or any indenture supplemental hereto and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as the Company may reasonably deem appropriate and as may be required to comply with any law, with any rule or regulation made pursuant thereto, with any rules of any securities exchange, automated quotation system or clearing agency or to conform to usage, as may, consistently herewith, be determined by the officers executing such Securities or coupons, as evidenced by their execution of such Securities or coupons. If temporary Securities of any series are issued in global form as permitted by Section 304, the form thereof shall be established as provided in the preceding sentence.
Unless otherwise specified as contemplated by Section 301, Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed, lithographed or engraved or produced by any combination of these methods on a steel engraved border or steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities or coupons, as evidenced by their execution thereof.
Section 202. Form of Trustee’s Certificate of Authentication.
Subject to Section 614, the Certificate of Authentication on all Securities shall be in substantially the following form:
This is one of the Securities of the series designated therein described in the within-mentioned Indenture.
| REGIONS BANK, as Trustee | ||
| By: | ||
| Authorized Signatory | ||
Section 203. Securities in Global Form.
If any Security of a series is issuable in global form, such Security may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be increased or reduced to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee and in such manner as shall be specified in such Security. Any instructions by the Company with respect to a Security in global form, after its initial issuance, shall be in writing but need not comply with Section 102.
Global Securities may be issued in either registered or bearer form and in either temporary or permanent form.
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Any Security issued in global form shall bear the legends as set forth in Exhibit A to this Indenture.
Section 204. CUSIP Numbers.
The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use) or other identifying numbers (“Identifying Numbers”) and, if so, the Trustee shall use such Identifying Numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such Identifying Numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identifying numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the Identifying Numbers.
ARTICLE 3
The Securities
Section 301. Title; Payment and Terms.
The aggregate principal amount of Securities which may be authenticated and delivered and Outstanding under this Indenture is unlimited. The Securities may be issued up to the aggregate principal amount of Securities from time to time authorized by or pursuant to Board Resolutions of the Company.
The Securities may be issued in one or more series, each of which shall be issued pursuant to Board Resolutions of the Company. There shall be established in one or more Board Resolutions or pursuant to one or more Board Resolutions of the Company and, subject to Section 303, set forth in, or determined in the manner provided in, an Officer’s Certificate of the Company, or established in one or more supplemental indentures hereto, prior to the issuance of Securities of any series all or any of the following, as applicable (each of which, if so provided, may be determined from time to time by the Company with respect to unissued Securities of that series and set forth in the Securities of that series when issued from time to time):
(1) the title of the Securities of that series (which shall distinguish the Securities of that series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of that series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series pursuant to Section 304, 305, 306, 906 or 1107) and whether that series may be reopened for additional Securities of that series; in the event that such series of Securities may be reopened from time to time for issuance of additional Securities of such series, the terms thereof shall indicate whether any such additional Securities shall have the same terms as the prior Securities of such series or whether the Company may establish additional or different terms with respect to such additional Securities;
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(3) whether Securities of that series are to be issuable as Registered Securities, Bearer Securities or both and any restrictions on the exchange of one form of Securities for another and on the offer, sale and delivery of the Securities in either form;
(4) the date or dates (or manner of determining the same) on which the principal of the Securities of that series is payable (which, if so provided in such Board Resolutions, may be determined by the Company from time to time and set forth in the Securities of the series issued from time to time);
(5) the rate or rates (or the manner of calculation thereof) at which the Securities of that series shall bear interest (if any), the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable (or manner of determining the same) and the Regular Record Date for the interest payable on any Registered Securities on any Interest Payment Date and the extent to which, or the manner in which, any interest payable on a temporary Global Security on an Interest Payment Date will be paid if other than in the manner provided in Section 307;
(6) the place or places where, subject to the provisions of Section 1002, the principal of (and premium, if any) and interest, if any, on Securities of that series shall be payable, any Registered Securities of that series may be surrendered for registration of transfer, any Securities of that series may be surrendered for exchange, and notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served;
(7) the period or periods within which (or manner of determining the same), the price or prices at which (or manner of determining the same), the currency or currency unit in which, and the terms and conditions upon which Securities of that series may be redeemed, in whole or in part, at the option of the Company, and any remarketing arrangements with respect to the Securities of that series;
(8) the obligation, if any, of the Company to redeem, repay or purchase Securities of that series pursuant to any sinking fund or analogous provisions, upon a change of control or at the option of a Holder thereof, and the period or periods within which (or manner of determining the same), the price or prices at which (or manner of determining the same), the currency or currency unit in which, and the terms and conditions upon which, Securities of that series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) if the currency in which the Securities of that series shall be issuable is Dollars, the denominations in which any Registered Securities of that series shall be issuable, if other than denominations of $1,000 and any integral multiple thereof, and the denominations in which any Bearer Securities of that series shall be issuable, if other than the denomination of $5,000;
(10) if other than the principal amount thereof, the portion of the principal amount of Securities of that series which shall be payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502;
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(11) if a Person other than Regions Bank is to act as Trustee for the Securities of that series, the name and location of the Corporate Trust Office of such Trustee;
(12) if other than Dollars, the currency or currency unit in which payment of the principal of (and premium, if any) or interest, if any, on the Securities of that series shall be made or in which the Securities of that series shall be denominated and the particular provisions applicable thereto in accordance with, in addition to or in lieu of the provisions of Section 311;
(13) the inapplicability of any Event of Default or covenant set forth in Article 10 hereof to the Securities of that series, or the applicability of any other Events of Defaults or covenants in addition to the Events of Default or covenants set forth herein to Securities of that series;
(14) if the principal of (and premium, if any) and interest, if any, on the Securities of that series are to be payable, at the election of the Company or a Holder thereof, in a currency or currency unit other than that in which such Securities are denominated or stated to be payable, in accordance with provisions in addition to or in lieu of, or in accordance with the provisions of, Section 311, the period or periods within which (including the Election Date), and the terms and conditions upon which, such election may be made, and the time and manner of determining the exchange rate between the currency or currency unit in which such Securities are denominated or stated to be payable and the currency or currency unit in which such Securities are to be so payable;
(15) the designation of the original Currency Determination Agent, if any;
(16) if the Securities of such series are issuable as Indexed Securities, the manner in which the amount of payments of principal of (and premium, if any) and interest, if any, on that series shall be determined;
(17) if the Securities of that series do not bear interest, the applicable dates for purposes of Section 701;
(18) if other than as set forth in Article Four, provisions for the satisfaction and discharge of this Indenture with respect to the Securities of that series;
(19) the date as of which any Bearer Securities of that series and any Global Security representing Outstanding Securities of that series shall be dated if other than the date of original issuance of the first Security of that series to be issued;
(20) whether the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities and, in such case, the Depositary and Global Exchange Agent, if any, for such Global Security or Securities, whether such global form shall be permanent or temporary and, if applicable, the Exchange Date;
(21) if Securities of the series are to be issuable initially in the form of a temporary Global Security, the circumstances under which the temporary Global Security
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can be exchanged for definitive Securities and whether the definitive Securities will be Registered Securities and/or Bearer Securities and will be in global form and whether interest in respect of any portion of such Global Security payable in respect of an Interest Payment Date prior to the Exchange Date shall be paid to any clearing organization with respect to a portion of such Global Security held for its account and, in such event, the terms and conditions (including any certification requirements) upon which any such interest payment received by a clearing organization will be credited to the Persons entitled to interest payable on such Interest Payment Date if other than as provided in this Article Three;
(22) whether the subordination provisions of Article 15 hereof apply to the Securities of that series or any different subordination provisions, including a different definition of “Senior Indebtedness” apply to the Securities of that series;
(23) whether payment of any amount due under such Securities will be entitled to the benefits of any Note Guarantee of any Guarantors, pursuant to the Indenture;
(24) the terms, if any, upon which such Securities of any series may be converted or exchanged into or for common stock, preferred stock or other securities or property of the Company;
(25) the forms of the Securities of that series; and
(26) any other terms of that series (which terms shall not be inconsistent with the requirements of the Trust Indenture Act).
Unless otherwise provided in the Board Resolutions establishing a particular series of Securities, the Securities shall be subordinated in right of payment to Senior Indebtedness as provided in Article Fifteen.
All Securities of any particular series and the coupons appertaining to any Bearer Securities of such series shall be substantially identical except as to denomination, rate of interest, Stated Maturity and the date from which interest, if any, shall accrue, and except as may otherwise be provided in or pursuant to such Board Resolutions of the Company and set forth in such Officer’s Certificate relating thereto or provided in or pursuant to any supplemental indenture hereto. The terms of such Securities, as set forth above, may be determined by the Company from time to time if so provided in or established pursuant to the authority granted in its Board Resolutions. All Securities of any one series need not be issued at the same time, and unless otherwise provided, a series may be reopened for issuance of additional Securities of such series.
Prior to the delivery of a Security of any series in any such form to the Trustee for the Securities of such series for authentication, the Company shall deliver to such Trustee the following:
(1) The Board Resolutions of the Company by or pursuant to which such form of Security have been approved and, if applicable, the supplemental indenture by or pursuant to which such form of Security has been approved;
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(2) An Officers’ Certificate of the Company dated the date such Certificate is delivered to such Trustee satisfying the requirements of Sections 102 and 103, and stating that all conditions precedent provided for in this Indenture relating to the authentication and delivery of Securities in such forms have been complied with; and
(3) An Opinion of Counsel satisfying the requirements of Sections 102 and 103 substantially to the effect that Securities in such forms, together with any coupons appertaining thereto, when (a) completed by appropriate insertions and executed and delivered by the Company to such Trustee for authentication in accordance with this Indenture, (b) authenticated and delivered by such Trustee in accordance with this Indenture, and (c) issued by the Company in the manner and subject to the conditions specified in such Opinion of Counsel, will constitute the legal, valid and binding obligations of the Company, subject to the effects of applicable bankruptcy, reorganization, fraudulent conveyance, moratorium, insolvency and other similar laws generally affecting creditors’ rights, to general equitable principles, to an implied covenant of good faith and fair dealing and to such other qualifications as such counsel shall conclude do not materially affect the rights of Holders of such Securities.
Section 302. Denominations and Currencies.
Unless otherwise provided with respect to any series of Securities as contemplated by Section 301, any Registered Securities of a series other than Registered Securities issued in global form (which may be of any denomination) shall be issuable in denominations of $1,000 and any integral multiple thereof, and any Bearer Securities of a series other than Bearer Securities issued in global for (which may be of any denomination) shall be issuable in the denomination of $5,000, or the equivalent amounts thereof in the case of Registered Securities and Bearer Securities denominated in a Foreign Currency or currency unit.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities and any related coupons shall be executed on behalf of the Company by its Chairman of the Board, a Vice Chairman of the Board, or its President, Chief Executive Officer or one of its Vice Presidents. The Securities shall be so executed under the corporate seal of the Company reproduced thereon and attested to by its Secretary or any one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile.
Securities and coupons bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series together with any coupons appertaining thereto, executed by the Company (and, if applicable, having endorsed thereon the Note Guarantees executed as provided in Section 1403 hereof) to the Trustee for the Securities of such series for authentication, together with a Company Order for the authentication and delivery of such Securities, and such Trustee, in accordance with the Company Order, shall authenticate and
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deliver such Securities; provided, however, that, during the “restricted period” (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations), no Bearer Security shall be mailed or otherwise delivered to any location in the United States; and provided, further, that a Bearer Security may be delivered outside the United States in connection with its original issuance only if the Person entitled to receive such Bearer Security shall have furnished to the Trustee for the Securities of such series a certificate substantially in the form set forth in Exhibit B to this Indenture. If any Security shall be represented by a permanent Global Security, then, for purposes of this Section and Section 304, the notation of a beneficial owner’s interest therein upon original issuance of such Security or upon exchange of a portion of a temporary Global Security shall be deemed to be delivery in connection with the original issuance of such beneficial owner’s interest in such permanent Global Security. Except as permitted by Section 306 or 307, the Trustee for the Securities of a series shall not authenticate and deliver any Bearer Security unless all appurtenant coupons for interest then matured other than matured coupons in default have been detached and cancelled. If all the Securities of any one series are not to be issued at one time and if a Board Resolution relating to such Securities shall so permit, such Company Order may set forth procedures acceptable to the Trustee for the issuance of such Securities, including, without limitation, procedures with respect to interest rate, Stated Maturity, date of issuance and date from which interest, if any, shall accrue.
Notwithstanding any contrary provision herein, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Board Resolution, Officers’ Certificate and Opinion of Counsel otherwise required pursuant to Sections 102 and 301 at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Registered Security shall be dated the date of its authentication, and, unless otherwise specified as contemplated by Section 301, each Bearer Security shall be dated as of the date of original issuance of the first Security of such series to be issued.
No Security or coupon appertaining thereto or Note Guarantee endorsed thereon shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein manually executed by the Trustee for such Security or on its behalf pursuant to Section 614, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder.
In case any Securities shall have been authenticated, but not delivered, by the Trustee or the Authenticating Agent for such series then in office, any successor by merger, conversion or consolidation to such Trustee, or any successor Authenticating Agent, as the case may be, may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee or successor Authenticating Agent had itself authenticated such Securities.
Each Depositary designated pursuant to Section 301 for a Global Security in registered form must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation.
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The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders.
Section 304. Temporary Securities and Exchange of Securities.
Pending the preparation of definitive Securities of any particular series, the Company may execute, and upon Company Order the Trustee for the Securities of such series shall authenticate and deliver, in the manner specified in Section 303, temporary Securities which are printed, lithographed, typewritten, photocopied or otherwise produced, in any denomination, with like terms and conditions as the definitive Securities of like series in lieu of which they are issued in registered form or, if authorized, in bearer form with one or more coupons or without coupons, and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities. Any such temporary Securities may be in global form, representing such of the Outstanding Securities of such series as shall be specified therein.
Except in the case of temporary Securities in global form (which shall be exchanged only in accordance with the provisions of the following paragraphs or as otherwise provided in or pursuant to a Board Resolution or a Supplemental Indenture), if temporary Securities of any particular series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of such definitive Securities, the temporary Securities of such series shall be exchangeable for such definitive Securities of a like Stated Maturity and with like terms and provisions upon surrender of the temporary Securities of such series, together with all unmatured coupons and matured coupons in default, if any, at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any particular series, the Company shall execute and (in accordance with a Company Order delivered at or prior to the authentication of the first definitive Security of such series) the Trustee for the Securities of such series or the Global Exchange Agent shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of authorized denominations of the same series and of a like Stated Maturity and with like terms and provisions; provided, however, unless otherwise specified pursuant to Section 301, no definitive Bearer Security shall be delivered in exchange for a temporary Registered Security; and provided, further, that a definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth in Section 303. Until exchanged as hereinabove provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and with like terms and conditions, except as to payment of interest, if any, authenticated and delivered hereunder.
Any temporary Global Security and any permanent Global Security shall, unless otherwise provided therein, be delivered to a Depositary designated pursuant to Section 301.
Without unnecessary delay but in any event not later than the date specified in or determined pursuant to the terms of any such temporary Global Security (the “Exchange Date”), the Securities represented by any temporary Global Security of a series of Securities issuable in
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bearer form may be exchanged for definitive Securities (subject to the second succeeding paragraph) or Securities to be represented thereafter by one or more permanent Global Securities, without interest coupons. On or after the Exchange Date such temporary Global Security shall be surrendered by the Depositary to the Trustee for such Security, as the Company’s agent for such purpose, or the agent appointed by the Company pursuant to Section 301 to effect the exchange of the temporary Global Security for definitive Securities (the “Global Exchange Agent”), and following such surrender, such Trustee or the Global Exchange Agent (as authorized by the Trustee as an Authenticating Agent pursuant to Section 614) shall (1) endorse the temporary Global Security to reflect the reduction of its principal amount by an equal aggregate principal amount of such Security, (2) endorse the applicable permanent Global Security, if any, to reflect the initial amount, or an increase in the amount of Securities represented thereby, (3) manually authenticate such definitive Securities or such permanent Global Security, as the case may be, (4) subject to Section 303, deliver such definitive Securities to the Holder thereof or, as the case may be, deliver such permanent Global Security to the Depositary to be held outside the United States for the accounts of Euroclear and Clearstream Banking, for credit to the respective accounts at Euroclear and Clearstream Banking, designated by or on behalf of the beneficial owners of such Securities (or to such other accounts as they may direct) and (5) redeliver such temporary Global Security to the Depositary, unless such temporary Global Security shall have been cancelled in accordance with Section 309 hereof; provided, however, that, unless otherwise specified in such temporary Global Security, upon such presentation by the Depositary, such temporary Global Security shall be accompanied by a certificate dated the Exchange Date or a subsequent date and signed by Euroclear as to the portion of such temporary Global Security held for its account then to be exchanged for definitive Securities or one or more permanent Global Securities, as the case may be, and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream Banking, as to the portion of such temporary Global Security held for its account then to be exchanged for definitive Securities or one or more permanent Global Securities, as the case may be, each substantially in the form set forth in Exhibit C to this Indenture. Each certificate substantially in the form of Exhibit C hereto of Euroclear or Clearstream Banking, as the case may be, shall be based on certificates of the account holders listed in the records of Euroclear or Clearstream Banking, as the case may be, as being entitled to all or any portion of the applicable temporary Global Security. An account holder of Euroclear or Clearstream Banking, as the case may be, desiring to effect the exchange of interest in a temporary Global Security for an interest in definitive Securities or one or more permanent Global Securities shall instruct Euroclear or Clearstream Banking, as the case may be, to request such exchange on its behalf and shall deliver to Euroclear or Clearstream Banking, as the case may be, a certificate substantially in the form of Exhibit B hereto and dated no earlier than 15 days prior to the Exchange Date. Until so exchanged, temporary Global Securities shall in all respects be entitled to the same benefits under this Indenture as definitive Securities and permanent Global Securities of the same series authenticated and delivered hereunder, except as provided in the fourth succeeding paragraph.
The delivery to the Trustee for the Securities of the appropriate series or the Global Exchange Agent by Euroclear or Clearstream Banking of any certificate substantially in the form of Exhibit C hereto may be relied upon by the Company and such Trustee or the Global Exchange Agent as conclusive evidence that a corresponding certificate or certificates has or have been delivered to Euroclear or to Clearstream Banking, as the case may be, pursuant to the terms of this Indenture.
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On or prior to the Exchange Date, the Company shall deliver to the Trustee for the Securities of the appropriate series or the Global Exchange Agent definitive Securities or one or more permanent Global Securities in aggregate principal amount equal to the principal amount of such temporary Global Security, executed by the Company in the case of the Securities. At any time, on or after the Exchange Date, upon 30 days’ notice to the Trustee for the Securities of the appropriate series or the Global Exchange Agent by Euroclear or Clearstream Banking, as the case may be, acting at the request of or on behalf of the beneficial owner, a Security represented by a temporary Global Security or a permanent Global Security, as the case may be, may be exchanged, in whole or from time to time in part, for definitive Securities without charge and such Trustee or the Global Exchange Agent shall authenticate and deliver, in exchange for each portion of such temporary Global Security or such permanent Global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and with like terms and provisions as the portion of such temporary Global Security or such permanent Global Security to be exchanged, which, unless the Securities of the series are not issuable both as Bearer Securities and as Registered Securities, as contemplated by Section 301, shall be in the form of Bearer Securities or Registered Securities, or any combination thereof, as shall be specified by the beneficial owner thereof; provided, however, that definitive Bearer Securities shall be delivered in exchange for a portion of the temporary Global Security or the permanent Global Security only in compliance with the requirements of the second preceding paragraph. On or prior to the thirtieth day following receipt by the Trustee for the Securities of the appropriate series or the Global Exchange Agent of such notice with respect to a Security, or, if such day is not a Business Day, the next succeeding Business Day, the temporary Global Security or the permanent Global Security, as the case may be, shall be surrendered by the Depositary to such Trustee, as the Company’s agent for such purpose, or the Global Exchange Agent to be exchanged in whole, or from time to time in part, for definitive Securities without charge following such surrender, upon the request of Euroclear or Clearstream Banking, as the case may be, and such Trustee or the Global Exchange Agent shall (1) endorse the applicable temporary Global Security or the permanent Global Security to reflect the reduction of its principal amount by the aggregate principal amount of such Security, (2) in accordance with procedures acceptable to the Trustee cause the terms of such Security and coupons, if any, to be entered on a definitive Security, (3) manually authenticate such definitive Security and (4) if a Bearer Security is to be delivered, deliver such definitive Security outside the United States to Euroclear or Clearstream Banking, as the case may be, for or on behalf of the beneficial owner thereof, in exchange for a portion of such permanent Global Security.
Unless otherwise specified in such temporary Global Security or permanent Global Security, any such exchange shall be made free of charge to the beneficial owners of such temporary Global Security or permanent Global Security, except that a Person receiving definitive Securities must bear the cost of any taxes, insurance, postage, transportation and the like in the event that such Person does not take delivery of such definitive Securities in person at the offices of Euroclear or Clearstream Banking. Definitive Securities in bearer form to be delivered in exchange for any portion of a temporary Global Security or a permanent Global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, any temporary Global Security or permanent Global Security shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and with like terms and conditions, except as
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to payment of interest, if any, authenticated and delivered hereunder. Unless otherwise specified as contemplated by Section 301, interest payable on such temporary Global Security on an Interest Payment Date for Securities of such series shall be payable to Euroclear and Clearstream Banking on such Interest Payment Date upon delivery by Euroclear and Clearstream Banking to the Trustee for the Securities of the appropriate series or the Global Exchange Agent in the case of payment of interest on a temporary Global Security with respect to an Interest Payment Date occurring prior to the applicable Exchange Date of a certificate or certificates substantially in the form set forth in Exhibit D to this Indenture, for credit without further interest on or after such Interest Payment Date to the respective accounts of the Persons who are the beneficial owners of such Global Security on such Interest Payment Date and who have, in the case of payment of interest on a temporary Global Security with respect to an Interest Payment Date occurring prior to the applicable Exchange Date, each delivered to Euroclear or Clearstream Banking, as the case may be, a certificate substantially in the form set forth in Exhibit E to this Indenture.
Any definitive Bearer Security authenticated and delivered by the Trustee for the Securities of the appropriate series or the Global Exchange Agent in exchange for a portion of a temporary Global Security or a permanent Global Security shall not bear a coupon for any interest which shall theretofore have been duly paid by such Trustee to Euroclear or Clearstream Banking or by the Company to such Trustee in accordance with the provisions of this Section 304.
With respect to Exhibits A, B, C and D to this Indenture, the Company may, in its discretion and if required or desirable under applicable law, substitute one or more other forms of such exhibits for such exhibits, eliminate the requirement that any or all certificates be provided, or change the time that any certificate may be required, provided that such substitute form or forms or notice of elimination or change of such certification requirement have theretofore been delivered to the Trustee with a Company Request and such form or forms, elimination or change is reasonably acceptable to the Trustee.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee for the Securities of each series a register (the register maintained in such office being herein sometimes referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and of transfers of Registered Securities. The Trustee for the Securities of each series is hereby initially appointed “Security Registrar” for the purpose of registering Registered Securities and transfers of Registered Securities of such series as herein provided.
Upon surrender for registration of transfer of any Registered Security of any particular series at the office or agency of the Company in a Place of Payment for that series, the Company shall execute, and the Trustee for the Securities of each series shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of any authorized denominations, and of a like Stated Maturity and of a like series and aggregate principal amount and with like terms and conditions.
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Except as set forth below, at the option of the Holder, Registered Securities of any particular series may be exchanged for other Registered Securities of any authorized denominations, and of a like Stated Maturity and of a like series and aggregate principal amount and with like terms and conditions upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee for such Securities shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive. Except as otherwise specified pursuant to Section 301, Registered Securities may not be exchanged for Bearer Securities.
Notwithstanding any other provision of this Section or Section 304, unless and until it is exchanged in whole or in part for Registered Securities in definitive form, a Global Security representing all or a portion of the Registered Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
If (but not only if) permitted by the applicable Board Resolution and (subject to Section 308) set forth in the applicable Officer’s Certificate, at the option of the Holder, Bearer Securities of any series may be exchanged for Registered Securities of the same series of any authorized denominations and of a like aggregate principal amount and with like terms and provisions upon surrender of the Bearer Securities to be exchanged at any office or agency of the Company in a Place of Payment for that series, with all unmatured coupons and all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default, such exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Company (or to the Trustee for the Security in case of matured coupons in default) in an amount equal to the face amount of such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and such Trustee if there is furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 1002, interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency of the Company in a Place of Payment for that series located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in exchange for a Registered Security of the same series and with like terms and conditions after the close of business at such office or agency on or after (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date for payment, as the case may be (or, if such coupon is so surrendered with such Bearer Security, such coupon shall be returned to the person so surrendering the Bearer Security), and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture.
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Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee for such Securities shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for Securities of a series in registered form notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series or if at any time the Depositary for the Securities of such series shall no longer be eligible under Section 303, the Company shall appoint a successor Depositary with respect to the Securities for such series. If (i) a successor Depositary for the Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, (ii) the Company delivers to the Trustee for Securities of such series in registered form a Company Order stating that the Securities of such series shall be exchangeable, or (iii) an Event of Default under Section 501 hereof has occurred and is continuing with respect to the Securities of such series, the Company’s election pursuant to Section 301 shall no longer be effective with respect to the Securities for such series and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver Securities of such series in definitive form in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the Registered Securities of any series issued in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Registered Securities of such series, will authenticate and deliver, Registered Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities.
If specified in a Board Resolution adopted by the Company pursuant to Section 301 with respect to a series of Securities in registered form, the Depositary for such series of Securities may surrender a Global Security for such series of Securities in exchange in whole or in part for Securities of such series of like tenor and terms and in definitive form on such terms as are acceptable to the Company and such Depositary. Thereupon the Company shall execute, and, upon receipt of a Company Order, the Trustee shall authenticate and deliver, without service charge, (i) to each Person specified by such Depositary a new Security or Securities of the same series, of like tenor and terms and of any authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Global Security; and (ii) to such Depositary a new Global Security of like tenor and terms and in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Securities delivered to Holders thereof.
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Upon the exchange of a Global Security for Securities in definitive form representing the aggregate principal amount of such Global Security, such Global Security shall be cancelled by the Trustee. Registered Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee in writing. The Trustee shall deliver such Registered Securities to the persons in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or exchange shall (if so required by the Company or the Trustee for such Security) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar for such series duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of that series selected for redemption under Section 1104 and ending at the close of business on (A) if Securities of the series are issuable only as Registered Securities, the day of the mailing of the relevant notice of redemption and (B) if Securities of the series are issuable as Bearer Securities, the day of the first publication of the relevant notice of redemption or, if Securities of the series are also issuable as Registered Securities and there is no publication, the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Registered Security so selected for redemption as a whole or in part, except the unredeemed portion of any Security being redeemed in part, or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of that series and like tenor; provided, however, that such Registered Security shall be simultaneously surrendered for redemption.
Furthermore, notwithstanding any other provision of this Section 305, the Company will not be required to exchange any Securities if, as a result of the exchange, the Company would suffer adverse consequences under any United States law or regulation.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If (i) any mutilated Security or a Security with a mutilated coupon appertaining thereto is surrendered to the Trustee for such Security or the Company and the Trustee for a Security receive evidence to their satisfaction of the destruction, loss or theft of any Security or coupon
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and (ii) there is delivered to the Company and such Trustee such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or such Trustee that such Security or coupon has been acquired by a bona fide or protected purchaser, the Company shall execute and upon its request such Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security or in exchange for such mutilated Security, or in exchange for the Security to which a mutilated, destroyed, lost or stolen coupon appertains (with all appurtenant coupons not mutilated, destroyed, lost or stolen) a new Security of the same series and in a like principal amount and of a like Stated Maturity and with like terms and conditions, and bearing a number not contemporaneously outstanding with coupons corresponding to the coupons, if any, appertaining to such mutilated, destroyed, lost or stolen Security or to the Security to which such mutilated, destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security or coupon (without surrender thereof except in the case of a mutilated Security or coupon) if the applicant for such payment shall furnish to the Company and the Trustee for such Security such security or indemnity as may be required by them to save each of them harmless, and in case of destruction, loss or theft, evidence satisfactory to the Company and such Trustee and any agent of any of them of the destruction, loss or theft of such Security and the ownership thereof; provided, however, that the principal of (and premium, if any) and interest, if any, on Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an office or agency located outside the United States and, unless otherwise specified as contemplated by Section 301, any interest on Bearer Securities shall be payable only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including all fees and expenses of the Trustee for such Security) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security or in exchange for any mutilated Security, or in exchange for a Security to which a mutilated, destroyed, lost or stolen coupon appertains shall constitute an original additional contractual obligation of the Company whether or not the destroyed, lost or stolen Security and its coupons, if any, or the destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and each such new Security shall be at any time enforceable by anyone, and each such new Security shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons.
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Section 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall, if so provided in such Security, be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest payment.
Unless otherwise provided with respect to the Securities of any series, payment of interest may be made at the Corporate Trust Office or, at the option of the Company (i) in the case of Registered Securities, may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register, or (ii) in the case of Bearer Securities, upon presentation and surrender of the appropriate coupon appertaining thereto or by transfer to an account maintained by the payee with a bank located outside the United States. Notwithstanding the foregoing, a Holder of $5,000,000 or more in aggregate principal amount of Securities of any series in definitive form (other than Bearer Securities), whether having identical or different terms and provisions, having the same Interest Payment Dates will, at the option of the Company, be entitled to receive interest payments, other than at Maturity, by wire transfer of immediately available funds if appropriate wire transfer instructions have been received in writing by the Trustee for the Securities of such series at least 15 days prior to the applicable Interest Payment Date. Any wire instructions received by the Trustee for the Securities of such series shall remain in effect until revoked by the Holder.
Unless otherwise provided or contemplated by Section 301, every permanent Global Security will provide that interest, if any, payable on any Interest Payment Date will be paid to each of Euroclear and Clearstream Banking with respect to that portion of such permanent Global Security held for its account by the Depositary. Each of Euroclear and Clearstream Banking will in such circumstances credit the interest received by it in respect of such permanent Global Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any particular series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of that series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee for the Registered Securities of such series in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of that series and the date of the proposed payment, and at the same time the Company shall deposit with such Trustee an amount of money in the currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d)), equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to such Trustee
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for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon such Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall not be more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by such Trustee of the notice of the proposed payment. Such Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Registered Securities of that series at his address as it appears in the Security Register not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names the Registered Securities of that series (or their respective Predecessor Securities) are registered on such Special Record Date and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on Registered Securities of any particular series in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Registered Securities may be listed, and upon such notice as may be required by such exchange, if, after notice is given by the Company to the Trustee for the Securities of such series of the proposed manner of payment pursuant to this clause, such manner of payment shall be deemed practicable by such Trustee.
Subject to the foregoing provisions of this Section and Section 305, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee for such Security and any agent of the Company or such Trustee may treat the Person in whose name any such Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 307) interest, if any, on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and none of the Company, such Trustee or any agent of the Company or such Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall pass by delivery. The Company, the Trustee for such Security and any agent of the Company or such Trustee may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner of such Bearer Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Security or coupon be overdue, and none of the Company, such Trustee or any agent of the Company or such Trustee shall be affected by notice to the contrary.
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None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Section 309. Cancellation.
All Securities and coupons surrendered for payment, redemption, registration of transfer or exchange, or delivered in satisfaction of any sinking fund payment, shall, if surrendered to any Person other than the Trustee for such Securities, be delivered to such Trustee and, in the case of Registered Securities and matured coupons, shall be promptly cancelled by it. All Bearer Securities and unmatured coupons so delivered to the Trustee for such Securities shall be cancelled by such Trustee. The Company may at any time deliver to the Trustee for Securities of a series for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by such Trustee. Notwithstanding any other provision of this Indenture to the contrary, in the case of a series, all the Securities of which are not to be originally issued at one time, a Security of such series shall not be deemed to have been Outstanding at any time hereunder if and to the extent that, subsequent to the authentication and delivery thereof, such Security is delivered to the Trustee for such Security for cancellation by the Company or any agent thereof upon the failure of the original purchaser thereof to make payment therefor against delivery thereof, and any Security so delivered to such Trustee shall be promptly cancelled by it. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities and coupons held by the Trustee for such Securities shall be disposed of by such Trustee in accordance with its standard procedures and a certificate of disposition evidencing such disposition of Securities and coupons shall be provided to the Company by such Trustee. In the case of any temporary Global Security, which shall be disposed of if the entire aggregate principal amount of the Securities represented thereby has been exchanged, the certificate of disposition shall state that all certificates required pursuant to Section 304 hereof, substantially in the form of Exhibit C hereto (or in the form of any substitute exhibit as provided in the last paragraph of Section 304), to be given by Euroclear or Clearstream Banking, have been duly presented to the Trustee for such Securities by Euroclear or Clearstream Banking, as the case may be. Permanent Global Securities shall not be disposed of until exchanged in full for definitive Securities or until payment thereon is made in full.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any particular series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
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Section 311. Currency and Manner of Payments in Respect of Securities.
Unless otherwise specified in accordance with Section 301 with respect to any series of Securities, the following provisions shall apply:
(a) Except as provided in paragraphs (b) and (d) below, the principal of (and premium, if any) and interest on Securities of any series denominated in a Foreign Currency or currency unit will be payable by the Company in Dollars based on the equivalent of that Foreign Currency or currency unit converted into Dollars in the manner described in paragraph (c) below.
(b) It may be provided pursuant to Section 301 with respect to Registered Securities of any series denominated in a Foreign Currency or currency unit that Holders shall have the option, subject to paragraph (d) below, to receive payments of principal of (and premium, if any) and interest on such Registered Securities in such Foreign Currency or currency unit by delivering to the Trustee (or to any duly appointed Paying Agent) for the Registered Securities of that series a written election, to be in form and substance satisfactory to such Trustee (or to any such Paying Agent), not later than the close of business on the Election Date immediately preceding the applicable payment date. If a Holder so elects to receive such payments in such Foreign Currency or currency unit, such election will remain in effect for such Holder until changed by such Holder by written notice to the Trustee (or to any such Paying Agent) for the Registered Securities of that series; provided, however, that any such change must be made not later than the close of business on the Election Date immediately preceding the next payment date to be effective for the payment to be made on such payment date; and provided, further, that no such change or election may be made with respect to payments to be made on any Registered Security of such series with respect to which an Event of Default has occurred, the Company has exercised any defeasance, satisfaction or discharge options pursuant to Article Four or notice of redemption has been given by the Company pursuant to Article Eleven. If any Holder makes any such election, such election will not be effective as to any transferee of such Holder and such transferee shall be paid in Dollars unless such transferee makes an election as specified above; provided, however, that such election, if in effect while funds are on deposit with respect to the Registered Securities of such series as described in Section 404 or Section 405, will be effective as to any transferee of such Holder unless otherwise specified pursuant to Section 301 for such Registered Securities. Any Holder of any such Registered Security who shall not have delivered any such election to the Trustee (or to any duly appointed Paying Agent) for the Registered Securities of such series not later than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date in Dollars.
(c) With respect to any Registered Securities of any series denominated in a Foreign Currency or currency unit and payable in Dollars, the amount of Dollars so payable will be determined by the Currency Determination Agent based on the highest indicative quotation in The City of New York selected by the Currency Determination Agent (after consultation with the Company) at approximately 11:00 A.M., New York City time, on the second Business Day preceding the applicable payment date. Such selection shall be made from among the quotations appearing on the bank composite or multi-contributor pages of the Reuters Monitor Foreign Exchange Service or, if not available, the Telerate Monitor Foreign Exchange Service, for three (or two if three are not available) major banks in New York City. The first three (or two) such banks selected by the Currency Determination Agent which are offering quotes on the Reuters Foreign Exchange Service shall be used. If such quotations are unavailable from either such foreign exchange service, such selection shall be made from the quotations received by the Currency Determination Agent from no more than three nor less than two recognized foreign exchange dealers in The City of New York selected by the Currency Determination Agent and approved by the Company (one of which may be the Currency Determination Agent) for the
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purchase by the quoting dealer, for settlement on such payment date, of the aggregate amount of the Foreign Currency or currency unit payable on such payment date in respect of all Registered Securities denominated in such Foreign Currency or currency unit and for which the applicable dealer commits to execute a contract. If fewer than two such bid quotations are available at 11:00 a.m., New York City time, on the second Business Day preceding the applicable payment date, such payment will be based on the Market Exchange Rate as of the second Business Day preceding the applicable payment date. If the Market Exchange Rate for such date is not then available, payments shall be made in the Foreign Currency or currency unit. All currency exchange costs associated with any payment in Dollars on any such Registered Securities will be borne by the Holder thereof by deductions from such payment.
(d) If a Conversion Event occurs with respect to a Foreign Currency or currency unit in which Registered Securities of any series are payable, then with respect to each date for the payment of principal of (and premium, if any) and interest on the Registered Securities of that series occurring after the last date on which such Foreign Currency or currency unit was used, the Company may make such payment in Dollars. The Dollar amount to be paid by the Company to the Trustee for the Registered Securities of such series and by such Trustee or any Paying Agent for the Registered Securities of such series to the Holders of such Registered Securities with respect to such payment date shall be determined by the Currency Determination Agent on the basis of the Market Exchange Rate as of the second Business Day preceding the applicable payment date or, if such Market Exchange Rate is not then available, on the basis of the most recently available Market Exchange Rate, or as otherwise established pursuant to Section 301 with respect to such Securities. Any payment in respect of such Registered Security made under such circumstances in Dollars will not constitute an Event of Default hereunder.
(e) For purposes of this Indenture the following terms shall have the following meanings:
A “Component Currency” shall mean any currency which is a component currency of any currency unit.
“Election Date” shall mean, for the Registered Securities of any series, the date specified pursuant to Section 301(14).
(f) Notwithstanding any other provisions of this Section 311, the following shall apply: (i) if the official unit of any Component Currency is altered by way of combination or subdivision, the number of units of that currency as a component shall be divided or multiplied in the same proportion, (ii) if two or more Component Currencies are consolidated into a single currency, the amounts of those currencies as components shall be replaced by an amount in such single currency equal to the sum of the amounts of the consolidated Component Currencies expressed in such a single currency, (iii) if any Component Currency is divided into two or more currencies, the amount of that original Component Currency as a component shall be replaced by the amounts of such two or more currencies having an aggregate value on the date of division equal to the amount of the former Component Currency immediately before such division and (iv) in the event of an official redenomination of any currency (including, without limitation, a currency unit), the obligations of the Company to make payments in or with reference to such currency on the Registered Securities of any series shall, in all cases, be deemed immediately
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following such redenomination to be obligations to make payments in or with reference to that amount of redenominated currency representing the amount of such currency immediately before such redenomination.
(g) All determinations referred to in this Section 311 made by the Currency Determination Agent shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Holders of the applicable Securities. The Currency Determination Agent shall promptly give written notice to the Trustee of any such decision or determination. The Currency Determination Agent shall have no liability for any determinations referred to in this Section 311 made by it.
(h) The Trustee for the Securities of a particular series shall be fully justified and protected in relying and acting upon information received by it from the Company and the Currency Determination Agent with respect to any of the matters addressed in or contemplated by this Section 311 and shall not otherwise have any duty or obligation to determine such information independently.
Section 312. Appointment and Resignation of Currency Determination Agent.
(a) If and so long as the Securities of any series (i) are denominated in a currency unit or a currency other than Dollars or (ii) may be payable in a currency unit or a currency other than Dollars, or so long as it is required under any other provision of this Indenture, then the Company shall maintain with respect to each such series of Securities, or as so required, a Currency Determination Agent. The Company shall cause the Currency Determination Agent to make the necessary foreign exchange determinations at the time and in the manner specified pursuant to Section 301 for the purpose of determining the applicable rate of exchange and for the purpose of converting the issued currency or currency unit into the applicable payment currency or currency unit for the payment of principal (and premium, if any) and interest, if any, pursuant to Section 311.
(b) No resignation of the Currency Determination Agent and no appointment of a successor Currency Determination Agent pursuant to this Section shall become effective until the acceptance of appointment by the successor Currency Determination Agent as evidenced by a written instrument delivered to the Company and the Trustee of the appropriate series of Securities accepting such appointment executed by the successor Currency Determination Agent.
(c) If the Currency Determination Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Currency Determination Agent for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Currency Determination Agent or Currency Determination Agents with respect to the Securities of that or those series (it being understood that any such successor Currency Determination Agent may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall only be one Currency Determination Agent with respect to the Securities of any particular series).
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ARTICLE 4
Satisfaction and Discharge
Section 401. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by a Board Resolution set forth in an Officers’ Certificate, at any time, with respect to the Securities of any series, elect to have either Section 402 or 403 be applied to all of the Outstanding Securities of that series upon compliance with the conditions set forth below in this Article Four.
Section 402. Legal Defeasance and Discharge.
Upon the Company’s exercise under Section 401 of the option applicable to this Section 402, the Company shall be deemed to have been discharged from its obligations with respect to all Outstanding Securities of the particular series and any coupons appertaining thereto on the date the conditions set forth below in Section 404 are satisfied (hereinafter, “Legal Defeasance”). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged all the obligations relating to the Outstanding Securities of that series and the Securities of that series, including any coupons appertaining thereto, shall thereafter be deemed to be “Outstanding” only for the purposes of Section 406, Section 408 and the other Sections of this Indenture referred to below in this Section 402, and to have satisfied all of its other obligations under such Securities and any coupons appertaining thereto and this Indenture and cured all then existing Events of Default (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of Outstanding Securities of the particular series and coupons, if any, of such series to receive payments in respect of the principal of (and premium, if any) and interest, if any, on such Securities when such payments are due or on the Redemption Date solely out of the trust created pursuant to this Indenture; (b) the Company’s obligations with respect to such Securities concerning issuing temporary Securities of that series, or, where relevant, registration of such Securities, mutilated, destroyed, lost or stolen Securities of that series and the maintenance of an office or agency for payment and money for Securities payments held in trust; (c) the rights, powers, trusts, duties and immunities of the Trustee for the Securities of that series, and the Company’s obligations in connection therewith; and (d) this Article Four and the obligations set forth in Section 406 hereof. Money and Securities held in trust pursuant to this Section 402 shall not be subject to Article Fifteen or any other subordination provisions.
Subject to compliance with this Article Four, the Company may exercise its option under Section 402 notwithstanding the prior exercise of its option under Section 403 with respect to the Securities of a particular series and any coupons appertaining thereto.
Section 403. Covenant Defeasance.
Upon the Company’s exercise under Section 401 of the option applicable to this Section 403, the Company shall be released from any obligations under the covenants contained in Sections 704 and 801 hereof (and any other covenant in addition to those set forth herein
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applicable to Securities of any series pursuant to Section 301 hereof specified to be released as provided under this Section 403) with respect to the Outstanding Securities of the particular series, along with any additional covenants or other provisions (including Events of Default) contained in such Security or any Supplemental Indenture in connection therewith, on and after the date the conditions set forth below in Section 404 are satisfied (hereinafter, “Covenant Defeasance”), and the Securities of that series and any coupons appertaining thereto shall thereafter be deemed not “Outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “Outstanding” for all other purposes hereunder (it being understood that such Securities shall not be deemed outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the Outstanding Securities of that series and any coupons appertaining thereto, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a default or Event of Default under subsection 501 but, except as specified above, the remainder of this Indenture and the Securities of that series shall be unaffected thereby.
Section 404. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section 402 or Section 403 to the Outstanding Securities of a particular series:
(a) the Company must irrevocably deposit, or cause to be irrevocably deposited, with the Trustee for the Securities of that series, in trust, for the benefit of the Holders of the Securities of that series, cash in the currency or currency unit in which the Securities of that series are payable (except as otherwise specified pursuant to Section 301 for the Securities of that series and except as provided in Sections 311(b) and 311(d), in which case the deposit to be made with respect to Securities for which an election has occurred pursuant to Section 311(b), or a Conversion Event has occurred as provided in Section 311(d), shall be made in the currency or currency unit in which the Securities of that series are payable as a result of such election or Conversion Event), Government Obligations or a combination thereof in such amounts as will be sufficient, in the opinion of an internationally recognized firm of independent public accountants, to pay the principal of (and premium, if any) and interest, if any, due on the outstanding Securities of that series and any related coupons at the Stated Maturity, or on the applicable Redemption Date, as the case may be, with respect to the outstanding Securities of that series and any related coupons;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee for the Securities of that series an Opinion of Counsel in the United States reasonably acceptable to such Trustee confirming that, subject to customary assumptions and exclusions, (1) the Company has received from, or there has been published by, the U.S. Internal Revenue Service a ruling or (2) since the Issue Date, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel in the United States shall confirm that, subject to customary assumptions and exclusions, the Holders of the Outstanding Securities of that series will not recognize income, gain or loss for U.S. federal
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income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee for the Securities of that series an Opinion of Counsel in the United States reasonably acceptable to such Trustee confirming that, subject to customary assumptions and exclusions, the Holders of the Outstanding Securities of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to such tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Event of Default or event which with the giving of notice or the lapse of time, or both, would become an Event of Default with respect to the Securities of that series shall have occurred and be continuing on the date of such deposit and no Event of Default under Section 501(4) or Section 501(5) shall have occurred and be continuing on the 123rd day after such date; and
(e) the Company shall have delivered to the Trustee for the Securities of that series an Officers’ Certificate and an Opinion of Counsel in the United States (which opinion of counsel may be subject to customary assumptions and exclusions) each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Section 405. Satisfaction and Discharge of Indenture.
This Indenture will be discharged and will cease to be of further effect as to all Securities of any particular series issued hereunder when either (i) all Securities of that series theretofore authenticated and delivered and all coupons, if any, appertaining thereto (except (A) coupons appertaining to Bearer Securities surrendered for exchange for Registered Securities and maturing after such exchange, whose surrender is not required or has been waived as provided in Section 305, (B) lost, stolen or destroyed Securities or coupons of such series which have been replaced or paid as provided in Section 306, (C) coupons appertaining to Securities called for redemption and maturing after the relevant Redemption Date, whose surrender is not required as provided in Section 1106 and (D) Securities and coupons of such series for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company or discharged from such trust, as provided in the last paragraph of Section 1003) have been delivered to the Trustee for the Securities of that series for cancellation or (ii) (A) all Securities of that series and any coupons appertaining thereto not theretofore delivered to Trustee for cancellation are due and payable by their terms within one year or have become due and payable by reason of the making of a notice of redemption and the Company has irrevocably deposited or caused to be deposited with such Trustee as trust funds in trust an amount of cash in any combination of currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d), in which case the deposit to be made with respect to Securities for which an election has occurred pursuant to Section 311(b) or a Conversion Event has occurred as provided in Section 311(d), shall be made in the currency or
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currency unit in which such Securities are payable as a result of such election or Conversion Event) sufficient to pay and discharge the entire indebtedness on such Securities and coupons not theretofore delivered to the Trustee for the Securities of that series for cancellation for principal (and premium, if any) and accrued and unpaid interest, if any, to the Stated Maturity or Redemption Date, as the case may be; (B) no Event of Default or event which with the giving of notice or the lapse of time, or both, would become an Event of Default shall have occurred and be continuing on the date of such deposit and no Event of Default under Section 501(4) or Section 501(5) shall have occurred and be continuing on the 123rd day after such date; (C) the Company has paid, or caused to be paid, all sums payable by it under this Indenture; and (D) the Company has delivered irrevocable instructions to the Trustee for the Securities of that series under this Indenture to apply the deposited money toward the payment of such Securities and coupons at the Stated Maturity or the Redemption Date, as the case may be. In addition, the Company must deliver an Officers’ Certificate and an Opinion of Counsel to the Trustee for the Securities of that series stating that all conditions precedent to satisfaction and discharge have been satisfied.
Section 406. Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this Indenture and of the Securities of a particular series referred to in Sections 401, 402, 404 or 405, the respective obligations of the Company and the Trustee for the Securities of a particular series under Sections 303, 304, 305, 309, 407, 408, 409, 410, and 508, Article Six, and Sections 701, 702, 1002, 1003, 1004 and 1005, shall survive with respect to Securities of that series until the Securities of that series are no longer outstanding, and thereafter the obligations of the Company and the Trustee for the Securities of a particular series with respect to that series under Sections 407, 408, 409, and 410 shall survive. Nothing contained in this Article Four shall abrogate any of the obligations or duties of the Trustee of any series of Securities under this Indenture.
Notwithstanding the satisfaction of the conditions set forth in Sections 404 or 405 with respect to all the Securities of any series not payable in Dollars, upon the happening of any Conversion Event the Company shall be obligated to make the payments in Dollars required by Section 311(d) to the extent that the Trustee is unable to convert any Foreign Currency or currency unit or currency unit in its possession pursuant to Sections 404 or 405 into the Dollar equivalent of such Foreign Currency or currency unit, as the case may be. If, after the deposits referred to in Sections 404 or 405 have been made, (x) the Holder of a Security is entitled to, and does, elect pursuant to Section 311(b) to receive payment in a currency or currency unit other than that in which the deposit pursuant to Sections 404 or 405 was made, or (y) a Conversion Event occurs as contemplated in Section 311(d), then the indebtedness represented by such Security shall be fully discharged to the extent that the deposit made with respect to such Security shall be converted into the currency or currency unit in which such Security is payable. The Trustee shall return to the Company any non-converted funds or securities in its possession after such payments have been made.
Section 407. Acknowledgment of Discharge by Trustee.
Subject to Section 410, after (i) the conditions of Sections 404 or 405 have been satisfied with respect to the Securities of a particular series, (ii) the Company has paid or caused to be
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paid all other sums payable hereunder by the Company and (iii) the Company has delivered to the Trustee for the Securities of that series an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent referred to in clause (i) above relating to the satisfaction and discharge of this Indenture have been complied with, the Trustee for the Securities of that series upon written request shall acknowledge in writing the discharge of all of the Company’s obligations under this Indenture except for those surviving obligations specified in this Article Four.
Section 408. Application of Trust Moneys.
All money and Government Obligations deposited with the Trustee for the Securities of a particular series pursuant to Sections 404 or 405 in respect of the Securities of that series shall be held in trust and applied by it, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of the Securities and all related coupons of all sums due and to become due thereon for principal (and premium, if any) and interest, if any, but such money need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee for the Securities of a particular series against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Sections 404 or 405 with respect to the Securities of that series or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of outstanding Securities of that series.
Section 409. Repayment to the Company; Unclaimed Money.
The Trustee and any Paying Agent for a series of Securities shall promptly pay or return to the Company upon Company Order any cash or Government Obligations held by them at any time that are not required for the payment of the principal of (and premium, if any) and interest, if any, on the Securities and all related coupons for Securities of that series for which cash or Government Obligations have been deposited pursuant to Sections 404 or 405.
Any money deposited with the Trustee or any Paying Agent for the Securities of any series, or then held by the Company, in trust for the payment of the principal of (and premium, if any) and interest, if any, on any Security of any particular series and all related coupons appertaining thereto and remaining unclaimed for two years after such principal (and premium, if any) and interest, if any, has become due and payable shall, unless otherwise required by mandatory provisions of applicable escheat, or abandoned or unclaimed property law, be paid to the Company on Company Request or (if then held by the Company) shall be discharged from such trusts; and the Holder of such Security and all related coupons shall, thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of such Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that such Trustee or such Paying Agent, before being required to make any such repayment may give written notice to the Holder of such Security in the manner set forth in Section 106, that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will, unless otherwise required by mandatory provisions of applicable escheat, or abandoned or unclaimed property law, be repaid to the Company, as the case may be.
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Section 410. Reinstatement.
If the Trustee or Paying Agent for a series of Securities is unable to apply any cash or Government Obligations, as applicable, in accordance with Section 402, 403, 404 or 405 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture and the Securities of that series shall be revived and reinstated as though no deposit had occurred pursuant to Section 402, 403, 404 or 405 until such time as the Trustee or Paying Agent for that series is permitted to apply all such cash or Government Obligations in accordance with Section 402, 403, 404 or 405; provided, however, that if the Company has made any payment of principal (and premium, if any) and interest, if any, on any Securities and any related coupons because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities and such coupons to receive such payment from the cash or Government Obligations, as applicable, held by such Trustee or Paying Agent. In the event the Company’s obligations under this Indenture and the Securities are revived and reinstated pursuant to this Section 410, then the obligations of each Guarantor, if any, under its Note Guarantee and this Indenture that were released pursuant to Section 1405 as a result of the Company’s exercise of its rights under this Article Four shall be revived and reinstated as though such release had not occurred.
ARTICLE 5
Remedies
Section 501. Events of Default.
“Event of Default” wherever used herein with respect to any particular series of Securities means any one of the following events and such other events as may be established with respect to the Securities of such series as contemplated by Section 301 (whatever the reason for such Event of Default and whether it shall be occasioned by the provisions of Article Fifteen or be voluntary or involuntary or be effected by operation of law pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any installment of interest upon any Security of that series and any related coupon when it becomes due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity or default in the deposit of any sinking fund payment when and as due by the terms of any Security of that series; or
(3) default in the performance of, or breach of, any covenant or warranty of the Company or any Guarantor (if any) in respect of any Security of that series contained in this Indenture or in such Securities (other than a covenant or warranty a default in
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whose performance or whose breach is elsewhere in this Section specifically dealt with) and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee for the Securities of such series or to the Company and such Trustee by the Holders of at least 30% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(4) the Company shall commence any case or proceeding seeking to have an order for relief entered on its behalf as debtor or to adjudicate it as bankrupt or insolvent or seeking reorganization, liquidation, dissolution, winding-up, arrangement, composition or readjustment of its debts or any other relief under any bankruptcy, insolvency, reorganization, liquidation, dissolution, arrangement, composition, readjustment of debt or other similar act or law of any jurisdiction, domestic or foreign, now or hereafter existing; or the Company shall apply for a receiver, custodian or trustee (other than any trustee appointed as a mortgagee or secured party in connection with the issuance of indebtedness for borrowed money of the Company) of it or for all or a substantial part of its property; or the Company shall make a general assignment for the benefit of creditors; or the Company shall take any corporate action in furtherance of any of the foregoing; or
(5) an involuntary case or other proceeding shall be commenced against the Company with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect seeking the appointment of a trustee, receiver, liquidator, custodian or similar official of the Company or any substantial part of its property; and such case or other proceeding (A) results in the entry of an order for relief or a similar order against the Company or (B) shall continue unstayed and in effect for a period of 60 consecutive days; or
(6) any other Event of Default provided in the Security or the Board Resolution with respect to Securities of that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any particular series of Securities and any related coupons occurs and is continuing (other than an Event of Default described in Section 501(4) or 501(5) with respect to the Company), then and in every such case either the Trustee for the Securities of such series or the Holders of not less than [30%] in principal amount of the Outstanding Securities of that series may declare the entire principal amount (or, in the case of (i) OID Securities, such lesser amount as may be provided for in the terms of that series or (ii) Indexed Securities, the amount determined in accordance with the specified terms of those Securities) of all the Securities of that series, to be due and payable immediately, by a notice in writing to the Company (and to such Trustee if given by Holders), and upon any such declaration of acceleration such principal or such lesser amount, as the case may be, together with accrued interest and all other amounts owing hereunder, shall become immediately due and payable, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived.
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If any Event of Default specified in Section 501(4) or 501(5) occurs with respect to the Company, all of the unpaid principal amount (or, if the Securities of any series then outstanding are (i) OID Securities, such lesser amount as may be provided for in the terms of that series or (ii) Indexed Securities, the amount determined in accordance with the specified terms of those Securities) and accrued interest on all Securities of each series then outstanding shall ipso facto become and be immediately due and payable without any declaration or other act by the Trustee or any Holder.
At any time after such a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee for the Securities of any series as hereinafter provided in this Article, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and such Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with such Trustee a sum sufficient to pay in the currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d)):
| (A) | all overdue interest on all Securities of that series and any related coupons; |
| (B) | the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and interest thereon from the date such principal became due at a rate per annum equal to the rate borne by the Securities of such series (or, in the case of (i) OID Securities, the Securities’ Yield to Maturity or (ii) Indexed Securities, the rate determined in accordance with the specified terms of those Securities), to the extent that the payment of such interest shall be legally enforceable; |
| (C) | to the extent that payment of such interest is lawful, interest upon overdue interest at a rate per annum equal to the rate borne by the Securities of such series (or, in the case of (i) OID Securities, the Securities’ Yield to Maturity or (ii) Indexed Securities, the rate determined in accordance with the specified terms of those Securities); and |
| (D) | all sums paid or advanced by such Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607; |
and
(2) all Events of Default with respect to the Securities of such series, other than the nonpayment of the principal of Securities of that series which has become due solely by such acceleration, have been cured or waived as provided in Section 513. No such rescission shall affect any subsequent default or impair any right consequent thereon.
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Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest upon any Security of any series and any related coupons when such interest becomes due and payable and such default continues for a period of 30 days; or
(2) default is made in the payment of the principal of (or premium, if any, on) any Security of any series at its Maturity;
the Company will, upon demand of the Trustee for the Securities of such series, pay to the Trustee, for the benefit of the Holders of such Securities and coupons, the whole amount then due and payable on such Securities and coupons for principal (and premium if any) and interest, if any, with interest upon the overdue principal (and premium, if any) and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installments of interest at a rate per annum equal to the rate borne by such Securities (or, in the case of (i) OID Securities, the Securities’ Yield to Maturity or (ii) Indexed Securities, the rate determined in accordance with the specified terms of those Securities); and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon such demand, such Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding against the Company for the collection of the sums so due and unpaid, and may prosecute such proceedings to judgment or final decree, and may enforce the same against the Company or any other obligor upon the Securities of such series and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any particular series occurs and is continuing, the Trustee for the Securities of such series may, in its discretion, proceed to protect and enforce its rights and the rights of the Holders of Securities of that series by such appropriate judicial proceedings as such Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relating to the Company or any other obligor upon the Securities of any series or the property of the Company or of such other obligor or their creditors, the Trustee for the Securities of such series (irrespective of whether the principal (or, if the Securities of such series are (i) OID Securities or (ii) Indexed Securities, such amount as may be due and payable with respect to such Securities pursuant to a declaration in accordance with Section 502) of any Security of such series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether such Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise
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(i) to file and prove a claim for the whole amount of principal (or, if the Securities of such series are (i) OID Securities or (ii) Indexed Securities, such amount as may be due and payable with respect to such Securities pursuant to a declaration in accordance with Section 502) (and premium, if any) and interest, if any, owing and unpaid in respect of the Securities of such series and any related coupons and to file such other papers or documents as may be necessary or advisable in order to have the claims of such Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607) and of the Holders of the Securities of such series and any related coupons allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any such judicial proceeding is hereby authorized by each Holder of Securities and coupons to make such payments to such Trustee, and in the event that such Trustee shall consent to the making of such payments directly to the Holders of Securities and coupons, to pay to such Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel, and any other amounts due such Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee for the Securities of any series to authorize or consent to or accept or adopt on behalf of any Holder of a Security or coupon any plan of reorganization, arrangement, adjustment or composition affecting the Securities of such series or the rights of any Holder thereof, or to authorize the Trustee for the Securities or coupons of any series to vote in respect of the claim of any Holder in any such proceeding for the election of a trustee in bankruptcy or other person performing similar functions.
Section 505. Trustee May Enforce Claims Without Possession of Securities or Coupons.
All rights of action and claims under this Indenture or the Securities or coupons of any series may be prosecuted and enforced by the Trustee for the Securities of any series without the possession of any of the Securities or coupons of such series or the production thereof in any proceeding relating thereto, and any such proceeding instituted by such Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of such Trustee, its agents and counsel and all other amounts due to such Trustee under Section 607, be for the ratable benefit of the Holders of the Securities and coupons of such series in respect of which such judgment has been recovered.
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Section 506. Application of Money Collected.
Any money collected by the Trustee for the Securities of any series pursuant to this Article with respect to the Securities or coupons of such series shall be applied in the following order, at the date or dates fixed by such Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, if any, upon presentation of the Securities or coupons of such series, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due such Trustee under Section 607;
Second: To the payment of the amounts then due and unpaid upon the Securities and coupons of such series for principal of (and premium, if any) and interest, if any, on such Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities and coupons for principal (and premium, if any) and interest, if any, respectively; and
Third: The balance, if any, to the Company.
Section 507. Limitation on Suits.
No Holder of any Security of any particular series or any related coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) an Event of Default with respect to that series shall have occurred and be continuing and such Holder shall have previously given written notice to the Trustee for the Securities of such series of such default and the continuance thereof;
(2) the Holders of not less than 30% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee for the Securities of such series to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to such Trustee indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) such Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to such Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more Holders of Securities of that series shall have any right in any manner whatsoever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Securities of that series, or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all the Holders of Securities of that series.
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Section 508. Unconditional Right of Holders to Receive Principal (and Premium, if any) and Interest, if any.
Notwithstanding any other provision in this Indenture, the Holder of any Security or coupon shall have the right which is absolute and unconditional to receive payment of the principal of (and premium, if any) and (subject to Section 307) interest, if any, on such Security on the respective Stated Maturities expressed in such Security or coupon (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee for the Securities of any series or any Holder of a Security or coupon has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to such Trustee or to such Holder, then and in every such case the Company, such Trustee and the Holders of Securities or coupons shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of such Trustee and such Holders shall continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee for the Securities of any series or to the Holders of Securities or coupons is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee for the Securities of any series or of any Holder of any Security of such series to exercise any right or remedy accruing upon any Event of Default with respect to the Securities of such series shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to such Trustee for the Securities or coupons of any series or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by such Trustee or by the Holders, as the case may be.
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Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of any particular series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee for the Securities of such series with respect to the Securities of that series or exercising any trust or power conferred on such Trustee with respect to such Securities, provided that:
(1) such direction shall not be in conflict with any rule of law or with this Indenture, the Securities or any Note Guarantee, and could not involve the Trustee in personal liability; and
(2) such Trustee may take any other action deemed proper by such Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
Except as otherwise specified for a series of Securities pursuant to Section 301 and subject to Section 502, the Holders of not less than a majority in principal amount of the Outstanding Securities of any particular series and any related coupons may on behalf of the Holders of all the Securities of that series waive any past default hereunder with respect to that series and its consequences, except:
(1) a default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of that series; or
(2) a default with respect to a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of that series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security or coupon by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for the Securities or coupons of any series for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee for the Securities of any series, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any particular series or to any suit instituted by any Holder of any Security or coupon for the enforcement of the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series or the payment of any coupon on or after the respective Stated Maturities expressed in such Security or coupon (or, in the case of redemption, on or after the Redemption Date).
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Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee for any series of Securities, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 516. Judgment Currency.
If, for the purpose of obtaining a judgment in any court with respect to any obligation of the Company hereunder or under any Security or any related coupon, it shall become necessary to convert into any other currency or currency unit any amount in the currency or currency unit due hereunder or under such Security or coupon, then such conversion shall be made by the Currency Determination Agent at the Market Exchange Rate as in effect on the date of entry of the judgment (the “Judgment Date”). If pursuant to any such judgment, conversion shall be made on a date (the “Substitute Date”) other than the Judgment Date and there shall occur a change between the Market Exchange Rate as in effect on the Judgment Date and the Market Exchange Rate as in effect on the Substitute Date, the Company agrees to pay such additional amounts, if any, as may be necessary to ensure that the amount paid is equal to the amount in such other currency or currency unit which, when converted at the Market Exchange Rate as in effect on the Judgment Date, is the amount due hereunder or under such Security or coupon. Any amount due from the Company under this Section 516 shall be due as a separate debt and is not to be affected by or merged into any judgment being obtained for any other sums due hereunder or in respect of any Security or coupon. In no event, however, shall the Company be required to pay more in the currency or currency unit due hereunder or under such Security or coupon at the Market Exchange Rate as in effect on the Judgment Date than the amount of currency or currency unit stated to be due hereunder or under such Security or coupon so that in any event the Company’s obligations hereunder or under such Security or coupon will be effectively maintained as obligations in such currency or currency unit, and the Company shall be entitled to withhold (or be reimbursed for, as the case may be) any excess of the amount actually realized upon any such conversion on the Substitute Date over the amount due and payable on the Judgment Date.
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ARTICLE 6
The Trustee
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to the Securities of any series for which the Trustee is serving as such,
(1) such Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against such Trustee; and
(2) in the absence of bad faith on its part, such Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to such Trustee and conforming to the requirements of this Indenture.
(b) In case an Event of Default with respect to a series of Securities has occurred and is continuing, the Trustee for the Securities of such series shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee for Securities of any series from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section;
(2) such Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) such Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any particular series, determined as provided in Section 512, relating to the time, method and place of conducting any proceeding for any remedy available to such Trustee, or exercising any trust or power conferred upon such Trustee, under this Indenture with respect to the Securities of that series; and
(4) no provision of this Indenture shall require the Trustee for any series of Securities to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
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(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee for any series of Securities shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect to Securities of any particular series, the Trustee for the Securities of such series shall give to Holders of Securities of that series, in the manner set forth in Section 106, notice of such default known to such Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of that series, or in the deposit of any sinking fund payment with respect to Securities of that series, such Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of such Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Securities of that series and related coupons. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of that series.
Section 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee for any series of Securities may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, discretion, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order (other than delivery of any Security, together with any coupons appertaining thereto, to the Trustee for authentication and delivery pursuant to Section 303 which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors of the Company may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture such Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, such Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’ Certificate;
(d) such Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) such Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any
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series pursuant to this Indenture for which it is acting as Trustee, unless such Holders shall have offered to such Trustee security or indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) such Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, discretion, consent, order, bond, debenture or other paper or document, but such Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters at it may see fit, and, if such Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company;
(g) the Trustee may employ or retain such counsel, accountants, appraisers or other experts or advisers as it may reasonably require for the purpose of determining and discharging its rights and duties hereunder and shall not be responsible for any misconduct on the part of any of them;
(h) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(i) the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder; and
(k) the Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication thereof and in any coupons shall be taken as the statements of the Company, as the case may be, and neither the Trustee for any series of Securities, nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee for any series of Securities makes no representations as to the validity or sufficiency of this Indenture or of the Securities of any series or coupons, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities, and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Company are true and correct, subject to the qualifications set forth therein. Neither the Trustee for any series of Securities nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
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Section 605. May Hold Securities.
The Trustee for any series of Securities, any Authenticating Agent, Paying Agent, Security Registrar or any other agent of the Company, or such Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not such Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee for any series of Securities in trust hereunder need not be segregated from other funds except as provided in Section 115 and except to the extent required by law. The Trustee for any series of Securities shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company in writing, as the case may be.
Section 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee for each series of Securities as the Company and the Trustee shall agree in writing from time to time such compensation in Dollars for all services rendered by it hereunder as shall be agreed upon in writing from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee for each series of Securities in Dollars upon its request for all reasonable expenses, disbursements and advances incurred or made by such Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify such Trustee, its employees, officers, directors and agents in Dollars for, and to hold them harmless against, any loss, damage, claims, liability or expense incurred without negligence or bad faith on their part, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending themselves against any claim, whether asserted by the Company or any Holder or any other Person, or liability in connection with the exercise or performance of any of their powers or duties hereunder.
As security for the performance of the obligations of the Company under this Section, the Trustee for any series of Securities shall have a lien prior to the Securities upon all property and funds held or collected by such Trustee as such, except funds held in trust for the payment of principal of (and premium, if any) or interest, if any, on particular Securities.
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When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 501(4) or Section 501(5), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law.
Section 608. Disqualification; Conflicting Interests.
The Trustee for the Securities shall be subject to the provisions of Section 310(b) of the Trust Indenture Act during the period of time required thereby. Nothing herein shall prevent the Trustee from filing with the Commission the application referred to in the penultimate paragraph of Section 310(b) of the Trust Indenture Act. In determining whether the Trustee has a conflicting interest as defined in Section 310(b) of the Trust Indenture Act with respect to the Securities of any series, there shall be excluded Securities of any particular series of Securities other than that series.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder for each series of securities which shall be
(i) a corporation or banking company organized and doing business under the laws of the United States of America, any state thereof, or the District of Columbia, authorized under such laws to exercise corporate trust powers, and subject to supervision or examination by Federal or State authority, or
(ii) a corporation or other Person organized and doing business under the laws of a foreign government that is permitted to act as Trustee pursuant to a rule, regulation, or other order of the Commission, authorized under such laws to exercise corporate trust powers, and subject to supervision or examination by authority of such foreign government or a political subdivision thereof substantially equivalent to supervision or examination applicable to United States institutional trustee, having a combined capital and surplus of at least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. Neither the Company nor any Person directly or indirectly controlling, controlled by, or under the common control of the Company shall serve as Trustee for the Securities. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereunder specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee for the Securities of any series and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.
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(b) The Trustee for the Securities of any series may resign at any time with respect to the Securities of such series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee for the Securities of such series within 60 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(c) The Trustee for the Securities of any series may be removed at any time with respect to the Securities of such series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to such Trustee and to the Company.
(d) If at any time:
(1) the Trustee for the Securities of any series shall fail to comply with Section 310(b) of the Trust Indenture Act pursuant to Section 608 hereof after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security of such series for at least six months, unless the Trustee’s duty to resign is stayed in accordance with the provisions of Section 310(b) of the Trust Indenture Act, or
(2) such Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(3) such Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of such Trustee or of its property shall be appointed or any public officer shall take charge or control of such Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove such Trustee and appoint a successor Trustee or (ii) subject to Section 514, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of such Trustee and the appointment of a successor Trustee.
(e) If the Trustee for the Securities of any series shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for the Securities of any series for any cause, the Company, by a Board Resolution, shall promptly appoint a successor Trustee with respect to the Securities of such series and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of such series shall have not been appointed by the Company pursuant to this Section 610, then a successor Trustee may be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee. If no successor Trustee for the Securities of such series shall have been so appointed by the Company or the Holders and shall have accepted appointment in the manner required by Section 611, and if such Trustee to be replaced is still incapable of acting, any Holder who has been a bona fide
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Holder of a Security of such series for at least six months, on behalf of himself and all others similarly situated, or the retiring Trustee, may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series in the manner and to the extent provided in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities of that series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) Every such successor Trustee appointed hereunder with respect to the Securities of any series shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
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(c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in Subsections (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee for the Securities of any series shall be qualified and eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee for the Securities of any series may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of such Trustee, shall be the successor of such Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee or the Authenticating Agent for such series then in office, any successor by merger, conversion or consolidation to such authenticating Trustee or Authenticating Agent, as the case may be, may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee or successor Authenticating Agent had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
The Trustee is subject to Section 311(a) of the Trust Indenture Act, excluding any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent indicated.
Section 614. Authenticating Agents.
At any time when any of the Securities of any series remain Outstanding, the Trustee for the Securities of such series may, subject to its sole discretion, appoint one or more Authenticating Agents with respect to the Securities of such series, which may include the Company or any Affiliate of the Company, with power to act on the Trustee’s behalf and subject to its discretion in the authentication and delivery of Securities of such series in connection with transfers and exchanges under Sections 304, 305 and 1107 as fully to all intents and purposes as though such Authenticating Agent had been expressly authorized by those Sections of this Indenture to authenticate and deliver Securities of such series. For all purposes of this Indenture, the authentication and delivery of Securities of such series by an Authenticating Agent for such Securities pursuant to this Section shall be deemed to be authentication and delivery of such Securities “by the Trustee” for the Securities of such series. Any such Authenticating Agent shall at all times be a corporation organized and doing business under the laws of the United States or
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of any State, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually pursuant to law or the requirements of such supervising or examining authority, then for the purposes of this Section the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent for any series of Securities shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, consolidation or conversion to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate trust business of any Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, if such successor corporation is otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the parties hereto or the Authenticating Agent or such successor corporation.
Any Authenticating Agent for any series of Securities may resign at any time by giving written notice of resignation to the Trustee for such series and to the Company. The Trustee for any series of Securities may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company in the manner set forth in Section 105. Upon receiving such a notice of resignation or upon such a termination, or in case at any time any Authenticating Agent for any series of Securities shall cease to be eligible under this Section, the Trustee for such series may appoint a successor Authenticating Agent, shall give written notice of such appointment to the Company and shall give written notice of such appointment to all Holders of Securities of such series in the manner set forth in Section 106. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
If an appointment with respect to one or more series of Securities is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certification of authentication, an alternate certificate of authentication in the following form:
“This is one of the Securities of the series designated therein described in the within-mentioned Indenture.
| REGIONS BANK, as Trustee | ||||||||
| By: | By: | |||||||
| As Authenticating Agent | Authorized Signatory” | |||||||
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ARTICLE 7
Holders’ Lists and Reports by Trustee and the Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each particular series of Securities, the Company will furnish or cause to be furnished to the Trustee for the Securities of such series,
(a) semi-annually, not more than 15 days after each Regular Record Date relating to Securities of each series at the time Outstanding (or, if there is no Regular Record Date relating to that series, on June 30 and December 31), a list, in such form as such Trustee may reasonably require, containing all the information in the possession or control of the Company or any of its Paying Agents other than such Trustee as to the names and addresses of the Holders of that series as of such dates,
(b) on semi-annual dates on each year to be determined pursuant to Section 301 if the Securities of such series do not bear interest, a list of similar form and content, and
(c) at such other times as such Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished,
excluding from any such list names and addresses received by such Trustee in its capacity as Security Registrar for the Securities of such series, if so acting.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee for each series of Securities shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of the Securities of such series contained in the most recent lists furnished to such Trustee as provided in Section 701 and the names and addresses of Holders of the Securities of such series received by such Trustee in its capacity as Security Registrar for such series, if so acting. The Trustee for each series of Securities may destroy any list relating to such series of Securities furnished to it as provided in Section 701 upon receipt of a new list relating to such series so furnished.
(b) If three or more Holders of Securities of any particular series (hereinafter referred to as “applicants”) apply in writing to the Trustee for the Securities of any such series, and furnish to such Trustee reasonable proof that each such applicant has owned a Security of that series for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders of Securities of that series with respect to their rights under this Indenture or under the Securities of that series and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then such Trustee shall, within five Business Days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at the time by such Trustee in accordance with Section 702(a), or
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(ii) inform such applicants as to the approximate number of Holders of Securities of that series whose names and addresses appear in the information preserved at the time by such Trustee in accordance with Section 702(a), and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.
If any such Trustee shall elect not to afford such applicants access to that information, such Trustee shall, upon the written request of such applicants, mail to each Holder of Securities of that series whose name and address appears in the information preserved at the time by such Trustee in accordance with Section 702(a), a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to such Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender, such Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of such Trustee, such mailing would be contrary to the best interests of the Holders of Securities of that series or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, such Trustee shall mail copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise such Trustee shall be relieved of any obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities of each series or coupons, by receiving and holding the same, agrees with the Company and the Trustee for the Securities of such series that neither the Company nor such Trustee, nor any agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of the Securities of such series in accordance with Section 702(b), regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 702(b).
Section 703. Reports by Trustee.
(a) Within 60 days after March 15 of each year, the Trustee for the Securities of each series shall mail to each Holder of the Securities of such series entitled to receive reports pursuant to Section 704(3), a brief report dated as of such date that complies with Section 313(a) of the Trust Indenture Act. The Trustee for the Securities of each series shall also comply with Sections 313(b), 313(c) and 313(d) of the Trust Indenture Act.
(b) At the time that the Trustee for the Securities of each series mails such a report to the Holders of Securities of such series, each such Trustee shall file a copy of that report with the Commission and with each stock exchange on which the Securities of that series are listed. The Company shall provide notice to the appropriate Trustee when the Securities of any series are listed on any stock exchange.
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Section 704. Reports by Company.
The Company will:
(1) file with the Trustee for the Securities of such series, within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if the Company is not required to file information, documents or reports pursuant to either of said Sections, then it will file with such Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee for the Securities of such series and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents, and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders of Securities of each series, as provided in Section 703(a), within 30 days after the filing thereof with the Trustee for the Securities of such series, such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (1) and (2) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee, subject to Section 601 hereof, is entitled to rely exclusively on Officers’ Certificates).
ARTICLE 8
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation or convey or transfer its properties and assets substantially as an entirety to any Person unless:
(1) either the Company shall be the continuing corporation or the corporation (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer the properties and assets
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of the Company substantially as an entirety shall be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia, and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee for each series of Securities, in form reasonably satisfactory to each such Trustee, the due and punctual payment of the principal of (and premium, if any) and interest, if any, (including all additional amounts, if any, payable pursuant to Section 516) on all the Securities and any related coupons and the performance of every covenant of this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of Default with respect to any series of Securities, and no event which, after notice or lapse of time, or both, would become an Event of Default with respect to any series of Securities, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee for each series of Securities an Officers’ Certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section 802. Successor Person Substituted.
Upon any consolidation or merger, or any conveyance or transfer of the properties and assets of the Company substantially as an entirety in accordance with Section 801, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein and thereafter the predecessor Person shall be relieved of all obligations and covenants under this Indenture, the Securities and any related coupons and, in the event of any such consolidation, merger, conveyance or transfer, the Company as the predecessor Person may thereupon or at any time thereafter be dissolved, wound up, or liquidated.
ARTICLE 9
Supplemental Indentures
Section 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the Company and, if applicable, each of the Guarantors, if any, in each case when authorized by a Board Resolution, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to such Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or any Guarantor (if any), as the case may be, and the assumption by any such successor of the covenants of the Company or any such Guarantor (if any) herein and in the Securities; or
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(2) to add to the covenants of the Company and, if applicable, the Guarantors (if any), for the benefit of the Holders of all or any particular series of Securities and any related coupons (and, if such covenants are to be for the benefit of fewer than all series of Securities, stating that such covenants are being included solely for the benefit of such series), or to surrender any right or power herein conferred upon the Company or any such Guarantor (if any); or
(3) to add any additional Events of Default with respect to any or all series of Securities (and, if any such Event of Default applies to fewer than all series of Securities, stating each series to which such Event of Default applies); provided, however, that in respect of any such additional Events of Default, such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may limit the remedies available to the Trustee upon such default or may limit the right of Holders of a majority in aggregate principal amount of that or those series of Securities to which such additional Events of Default apply to waive such default; or
(4) to pledge property to the Trustee as security for the Securities; or
(5) to reflect the addition or release of any Guarantor in accordance with Article Fourteen hereof; or
(6) to add to or to change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal of (or premium, if any) or interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities of other authorized denominations, to provide for the issuance of uncertificated Securities of any series in addition to or in place of any certificated Securities and to make all appropriate changes for such purposes; provided, however, that any such action shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect; or
(7) to change or eliminate any of the provisions of this Indenture, provided, however, that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or
(8) to evidence and provide for the acceptance of appointment hereunder of a Trustee other than Regions Bank as Trustee for a series of Securities and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 609; or
(9) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611(b); or
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(10) to add to the conditions, limitations and restrictions on the authorized amount, form, terms or purposes of issue, authentication and delivery of Securities, as herein set forth, other conditions, limitations and restrictions thereafter to be observed; or
(11) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Section 401; provided, however, that any such action shall not adversely affect the interests of the Holders of Securities of such series and any related coupons or any other series of Securities in any material respect; or
(12) to add to or change or eliminate any provisions of this Indenture as shall be necessary or desirable in accordance with any amendments to the Trust Indenture Act or to maintain the qualification of this Indenture under the Trust Indenture Act; or
(13) to issue and establish the form and terms of any series of Securities with any terms permitted by the Trust Indenture Act whether or not the provisions hereunder specifically permit the terms in this Indenture to be changed; or
(14) to conform any non-conforming language or defined terms in the text of this Indenture or any Securities to any provision of the section “Description of the Notes” contained in the prospectus or other offering document used in connection with the initial sale of such Securities so that such provision in the “Description of Notes” section of such prospectus or other offering document reflects a verbatim recitation of a provision of this Indenture; or
(15) to change any other provisions of this Indenture with respect to any series of Securities; provided, however, that any such action shall not adversely affect the interests of the Holders of Securities of such series and any related coupons or any other series of Securities in any material respect; or
(16) to make any other provisions with respect to matters or questions arising under this Indenture, provided any such provision other shall not adversely affect the Holders of Securities of any series in any material respect; or
(17) to cure any ambiguity or mistake, to correct or supplement any provision herein which may be inconsistent with any other provision herein, to convey, transfer, assign, mortgage or pledge any property to or with the Trustee for the Securities of any series or to surrender any right or power herein conferred upon the Company, or to make any other provisions with respect to matters or questions arising under this Indenture, provided such action shall not adversely affect the interests of the Holders of Securities of any particular series in any material respect.
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Section 902. Supplemental Indentures with Consent of Holders.
The Company and, if applicable, the Guarantors (if any), in each case, when authorized by a Board Resolution, may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of such Securities and any related coupons under this Indenture, but only with the consent of the Holders of more than 50% in aggregate principal amount of the Outstanding Securities of each series of Securities then Outstanding affected thereby, in each case by Act of said Holders of Securities of each such series delivered to the Company, the Guarantors (if any) and the Trustee for Securities of each such series; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon, if any (or, in the case of OID Securities, reduce the rate of accretion of original issue discount), or any premium payable upon the redemption thereof, or reduce the amount of the principal of an OID Security that would be due and payable upon a declaration of acceleration of the Maturity thereof, or provable in bankruptcy, or, in the case of Indexed Securities, reduce the amount payable in accordance with the terms of those Securities upon a declaration of acceleration of Maturity thereof, or provable in bankruptcy, pursuant to Section 502, or change the Place of Payment, or the currency or currency unit in which any Security or the principal or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date); or reduce or alter the method of computation of any amount payable upon redemption, repayment or purchase of any Securities by the Issuer (or the time when such redemption, repayment or purchase may be made); or release any Note Guarantee by any Guarantor (if any) other than as provided in this Indenture (it being understood that any release effected by Section 802 shall not constitute any of the foregoing); or
(2) reduce the percentage in principal amount of the Outstanding Securities of any particular series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture; or
(3) modify any of the provisions of this Section or Section 513, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder of a Security or coupon with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements of Sections 609, 611(b), 901(8) and 901(9); or
(4) modify the provisions of Article Fifteen in a manner adverse to the Holders of Securities.
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A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee for any series of Securities shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Officers’ Certificate and Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and that all conditions to the execution of such supplemental indenture have been satisfied. The Trustee for any series of Securities may, but shall not be obligated to, enter into any such supplemental indenture which affects such Trustee’s own rights, liabilities, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder and of any coupons appertaining thereto shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any particular series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee for the Securities of such series, bear a notation in form approved by such Trustee as to any matter provided for in such supplemental indenture. If the Company or the Guarantors (if any) shall so determine, new Securities of any series and any related coupons so modified as to conform, in the opinion the Board of Directors of the Company or the Guarantors (if any), to any such supplemental indenture may be prepared and executed by the Company or the Guarantors (if any) and such Securities may be authenticated and delivered by such Trustee in exchange for Outstanding Securities of such series and any related coupons.
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ARTICLE 10
Covenants
Section 1001. Payment of Principal (and Premium, if any) and Interest, if any.
The Company agrees, for the benefit of each particular series of Securities, that it will duly and punctually pay in the currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d)) the principal of (and premium, if any) and interest, if any, on that series of Securities in accordance with the terms of the Securities of such series, any coupons appertaining thereto and this Indenture. Unless otherwise specified as contemplated by Section 301 with respect to any series of Securities, any interest due on Bearer Securities on or before Maturity shall be payable only upon presentation and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature. The interest, if any, due in respect of any temporary or permanent Global Security, as provided in the terms and conditions of such Security, shall be payable, only upon presentation of such Security to the Trustee thereof for notation thereon of the payment of such interest.
Section 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities the Company will maintain in each Place of Payment for that series an office or agency where Securities of that series may be presented or surrendered for payment, an office or agency where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company with respect to the Securities of that series and this Indenture may be served. If Securities of a series are issuable as Bearer Securities, the Company will maintain (A) an office or agency (which may be the same office or agency) in a Place of Payment for that series in the United States where any Registered Securities of that series may be presented or surrendered for payment, where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange, where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served and where Bearer Securities of that series and related coupons may be presented or surrendered for payment in the circumstances described in the following paragraph (and not otherwise), (B) subject to any laws or regulations applicable thereto, in a Place of Payment for that series which is located outside the United States, an office or agency where Securities of that series and related coupons may be presented and surrendered for payment; provided, however, that if the Securities of that series are listed on the Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, the Company will maintain a Paying Agent for the Securities of that series in Luxembourg or any other required city located outside the United States, as the case may be, so long as the Securities of that series are listed on such exchange, and (C) subject to any laws or regulations applicable thereto, in a Place of Payment for that series located outside the United States an office or agency where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange and where notices and demands to or upon the Company in respect of the Securities of that series and
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this Indenture may be served. The Company will give prompt written notice to the Trustee for the Securities of that series of the location, and any change in the location, of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency in respect of any series of Securities or shall fail to furnish the Trustee for the Securities of that series with the address thereof, such presentations (to the extent permitted by law), and surrenders of Securities of that series may be made and notices and demands may be made or served at the Corporate Trust Office of such Trustee, except that Bearer Securities of that series and the related coupons may be presented and surrendered for payment at the offices specified in the Security, and the Company hereby appoints the same as its agent to receive such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to Section 301, no payment of principal (and premium, if any) or interest, if any, on Bearer Securities shall be made at any office or agency of the Company in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States. Payments will not be made in respect of Bearer Securities or coupons appertaining thereto pursuant to presentation to the Company, or its designated Paying Agents within the United States. Notwithstanding the foregoing, payment of principal of (and premium, if any) and interest, if any, on any Bearer Security denominated and payable in Dollars will be made at the office of the Company’s Paying Agent in the United States, if, and only if, payment in Dollars of the full amount of such principal, premium or interest, as the case may be, at all offices or agencies outside the United States maintained for that purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions and the Company has delivered to the Trustee an Opinion of Counsel to that effect.
The Company may also from time to time designate one or more other offices or agencies (in or outside the Place of Payment) where the Securities of one or more series may be presented or surrendered for any or all of the purposes specified above in this Section and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for such purpose. The Company will give prompt written notice to the Trustee for the Securities of each series so affected of any such designation or rescission and of any change in the location of any such office or agency. Unless otherwise specified with respect to any Securities pursuant to Section 301 with respect to a series of Securities, the Company hereby designates as a Place of Payment for each series of Securities the office or agency of the Company in the Borough of Manhattan, the City of New York, and initially appoints the Trustee at its Corporate Trust Office as Paying Agent in such city and as its agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to Section 301, if and so long as the Securities of any series (i) are denominated in a currency other than Dollars or (ii) may be payable in a currency other than Dollars, or so long as it is required under any other provision of the Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, a Currency Determination Agent.
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Section 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any particular series of Securities and any related coupons, it will, on or before each due date of the principal of (and premium, if any) or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d)) sufficient to pay the principal (and premium, if any) and interest, if any, so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee for the Securities of such series of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any particular series of Securities and any related coupons, it will, prior to each due date of the principal of (and premium, if any) or interest, if any, on any such Securities, deposit with a Paying Agent for the Securities of such series a sum (in the currency or currency unit described in the preceding paragraph) sufficient to pay the principal (and premium, if any) and interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled thereto, and (unless such Paying Agent is the Trustee for the Securities of such series) the Company will promptly notify such Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any particular series of Securities other than the Trustee for the Securities of such series to execute and deliver to such Trustee an instrument in which such Paying Agent shall agree with such Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest, if any, on Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give such Trustee notice of any default by the Company (or any other obligor upon the Securities) in the making of any payment of principal (or premium, if any) and interest, if any, on Securities of that series; and
(3) at any time during the continuation of any such default, upon the written request of such Trustee, forthwith pay to such Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee for the Securities of any series all sums held in trust by the Company or such Paying Agent, such sums to be held by such Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to such Trustee, such Paying Agent shall be released from all further liability with respect to such money.
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Section 1004. Statements as to Compliance.
The Company will deliver to the Trustee for each series of Securities, within 120 days after the end of each fiscal year of the Company (beginning with the fiscal year in which the first series of Securities under this Indenture has been issued), a written statement signed by the principal executive officer, principal financial officer or principal accounting officer of the Company stating that:
(1) a review of the activities of the Company and the Guarantors, if any, during such year and of performance under this Indenture has been made under his supervision; and
(2) to the best of his or her knowledge, based on such review, the Company and the Guarantors, if any, is in compliance with all conditions and covenants under this Indenture.
For purposes of this Section, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture.
Section 1005. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any right or franchise if the Board of Directors of the Company shall determine that the preservation thereof is no longer necessary or desirable in the conduct of the business of the Company.
Section 1006. Waiver of Certain Covenants.
The Company and the Guarantors, if any, may omit in any particular instance to comply with any covenant or condition set forth in Sections 1004 and 1005 (and any other covenant or condition in addition to those set forth herein applicable to Securities of any series pursuant to Section 301 hereof), if before or after the time for such compliance the Holders of more than 50% in principal amount of the Outstanding Securities of each series of Securities affected by the omission shall, in each case by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee for the Securities of each series with respect to any such covenant or condition shall remain in full force and effect.
Section 1007. Calculation of Original Issue Discount.
If applicable, the Company shall file with the Trustee promptly at the end of each calendar year (i) a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on Outstanding Securities as of the end of such year and (ii) such other specific information relating to such original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time.
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Section 1008. Statement by Officers as to Default.
The Company shall deliver to the Trustee, within five Business Days after the Company becomes aware of the occurrence of any Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, an Officers’ Certificate setting forth the details of such Event of Default or event and the action which the Company proposes to take with respect thereto.
ARTICLE 11
Redemption of Securities
Section 1101. Applicability of this Article.
Redemption of Securities of any series (whether by operation of a sinking fund or otherwise) as permitted or required by any form of Security issued pursuant to this Indenture shall be made in accordance with such form of Security and this Article; provided, however, that if any provision of any such form of Security shall conflict with any provision of this Article, the provision of such form of Security shall govern.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities of any series shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company of less than all of the Securities of any particular series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee for the Securities of such series) notify such Trustee by Company Request of such Redemption Date and of the principal amount of Securities of that series to be redeemed and shall deliver to such Trustee such documentation and records as shall enable such Trustee to select the Securities to be redeemed pursuant to Section 1103. In the case of any redemption of Securities of any series prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee for Securities of such series with an Officers’ Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities are to be redeemed, the Company may select the series to be redeemed, and if less than all the Securities of any series are to be redeemed, the particular Securities of that series to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee for the Securities of such series, from the Outstanding Securities of that series not previously called for redemption, by such method as such Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series, or any integral multiple thereof) of the principal amount of Securities of that series of a denomination
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larger than the minimum authorized denomination for Securities of that series pursuant to Section 302 in the currency or currency unit in which the Securities of such series are denominated.
The Trustee for the Securities of any series to be redeemed shall promptly notify the Company in writing of the Securities of such series selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106 not later than the thirtieth (30th) day and not earlier than the sixtieth (60th) day prior to the Redemption Date, unless as set forth otherwise pursuant to Section 301, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of a particular series are to be redeemed, the identification (and, in the case of partial redemption, the respective principal amounts) of the particular Securities to be redeemed, including the Identifying Number of such Securities,
(4) in case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the Holder will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price will become due and payable upon each such Security or portion thereof, and that interest thereon, if any (or in the case of OID Securities, original issue discount), shall cease to accrue on and after said date,
(6) the place or places where such Securities, together in the case of Bearer Securities with all coupons appertaining thereto, if any, maturing after the Redemption Date are to be surrendered for payment of the Redemption Price,
(7) that the redemption is for a sinking fund, if such is the case,
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(8) that, unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by all coupons maturing subsequent to the date fixed for redemption or the amount of any such missing coupon or coupons will be deducted from the Redemption Price or security or indemnity satisfactory to the Company, the Trustee for such series and any Paying Agent is furnished, and
(9) if Bearer Securities of any series are to be redeemed and any Registered Securities of such series are not to be redeemed, and if such Bearer Securities may be exchanged for Registered Securities not subject to redemption on this Redemption Date pursuant to Section 305 or otherwise, the last date, as determined by the Company, on which such exchanges may be made.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee for such Securities in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
Prior to the opening of business on any Redemption Date, the Company shall deposit with the Trustee for the Securities to be redeemed or with a Paying Agent for such Securities (or, if the Company is acting as its own Paying Agent for such Securities, segregate and hold in trust as provided in Section 1003) an amount of money in the currency or currency unit in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such Series and except as provided in Sections 311(b) and 311(d)) sufficient to pay the principal amount of (and premium, if any, thereon), and (except if the Redemption Date shall be an Interest Payment Date) any accrued interest on, all the Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified in the currency or currency unit in which the Securities of such series are payable (except as otherwise provided pursuant to Section 301 for the Securities of such series and except as provided in Sections 311(b) and 311(d)) and from and after such date (unless the Company shall default in the payment of the Redemption Price) such Securities shall cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below, shall be void. Upon surrender of such Security for redemption in accordance with said notice together with all coupons, if any, appertaining thereto maturing after the Redemption Date, such Security or specified portions thereof shall be paid by the Company at the Redemption Price; provided, however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of coupons for such interest, and provided, further, that unless otherwise specified as contemplated by Section 301, installments of interest on Registered
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Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied by all coupons appertaining thereto maturing after the Redemption Date, such Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing coupons or the surrender of such missing coupon or coupons may be waived by the Company if there is furnished to the Company, the Trustee for such Security and any Paying Agent such security or indemnity as they may require to save the Company, such Trustee and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to such Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest represented by coupons shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal thereof (and premium, if any, thereon) shall, until paid, bear interest from the Redemption Date at a rate per annum equal to the rate borne by the Security (or, in the case of (i) OID Securities, the Security’s Yield to Maturity or (ii) Indexed Securities, the rate determined in accordance with the specified terms of those Securities).
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be surrendered at the Place of Payment (with, if the Company or the Trustee for such Security so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, and the Security Registrar for such Security duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute and such Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Registered Security or Securities, of any authorized denomination as requested by such Holder, of the same series and having the same terms and provisions and in an aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Registered Security so surrendered.
ARTICLE 12
Sinking Funds
Section 1201. Applicability of this Article.
Redemption of Securities through operation of a sinking fund as permitted or required by any form of Security issued pursuant to this Indenture shall be made in accordance with such form of Security and this Article; provided, however, that if any provision of any such form of Security shall conflict with any provision of this Article, the provision of such form of Security shall govern.
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The minimum amount of any sinking fund payment provided for by the terms of Securities of any particular series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of Securities of any particular series is herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any particular series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any particular series as provided for by the terms of Securities of that series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption), together in the case of any Bearer Securities of such series with all unmatured coupons appertaining thereto, and (2) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided, however, that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee for such Securities at the principal amount thereof and the amount of such sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 30 days prior to each sinking fund payment date for any particular series of Securities, the Company will deliver to the Trustee for the Securities of such series an Officers’ Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash in the currency or currency unit in which the Securities of that series are payable (except as otherwise specified pursuant to Section 301 for the Securities of that series and except as provided in Sections 311(b) and 311(d)) and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 1202 and shall state the basis for such credit and that such
Securities have not previously been so credited and will also deliver to such Trustee any Securities to be so delivered. Such Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
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ARTICLE 13
Meetings of Holders of Securities
Section 1301. Purposes for which Meetings May be Called.
If Securities of a series are issuable as Bearer Securities, a meeting of Holders of Securities of such series may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series.
Section 1302. Call, Notice and Place of Meetings.
(a) The Trustee for any series of Securities that includes Bearer Securities, may at any time call a meeting of the Holders of Securities of such series for any purpose specified in Section 1301, to be held at such time and at such place in the Borough of Manhattan, The City of New York, or in London, as such Trustee shall determine. Notice of every meeting of Holders of Securities of such series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 106, not less than 20 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding Securities of any such series shall have requested the Trustee for any such series to call a meeting of the Holders of Securities of such series for any purpose specified in Section 1301, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and such Trustee shall not have made the first publication of the notice of such meeting within 30 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place in the Borough of Manhattan, The City of New York, or in London, for such meeting and may call such meeting for such purposes by giving notice thereof as provided in subsection (a) of this Section.
Section 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee for such series and its counsel and any representatives of the Company and its counsel.
Section 1304. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series. In the
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absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Subject to Section 1305(d), notice of the reconvening of any adjourned meeting shall be given as provided in Section 1302(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly that Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of that series; provided, however, that except as limited by the proviso to Section 902, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage which is less than a majority in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such series and the related coupons, whether or not present or represented at the meeting.
Section 1305. Determination of Voting Rights; Conduct and Adjournment of Meetings.
(a) Notwithstanding any other provision of this Indenture, the Trustee for any series of Securities that includes Bearer Securities may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of such series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 104 and the appointment of any proxy shall be proved in the manner specified in Section 104 or by having the signature of the person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized by Section 104 to certify to the holding of Bearer Securities. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee for any series of Securities that includes Bearer Securities shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall
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have been called by the Company or by Holders of Securities as provided in Section 1302(b), in which case the Company or the Holders of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount of Securities of such series held or represented by him as determined in accordance with Section 115; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of holders of Securities of any series duly called pursuant to Section 1302 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting; and the meeting may be held as so adjourned without further notice.
Section 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in triplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 1302 and, if applicable, Section 1304. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee for such series of Securities to be preserved by such Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE 14
Note Guarantees
Section 1401. Guarantee.
(a) Subject to this Article Fourteen, each of the Guarantors, if any, hereby, jointly and severally, unconditionally guarantees to each Holder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, (the “Note Guarantee”) that:
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(1) the principal of, premium, if any, and interest on, the Securities will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Securities, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
(2) in case of any extension of time of payment or renewal of any Securities or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors, if any, will be jointly and severally obligated to pay the same immediately. Each Guarantor, if any, agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The Guarantors, if any, hereby agree that their obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor, if any. Each Guarantor, if any, hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Note Guarantee will not be discharged except by complete performance of the obligations contained in the Securities and this Indenture.
(c) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors, if any, or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, if any, any amount paid by either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(d) Each Guarantor, if any, agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor, if any, further agrees that, as between the Guarantors (if any) on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article Five hereof, such obligations (whether or not due and payable) will forthwith become due
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and payable by the Guarantors, if any, for the purpose of this Note Guarantee. The Guarantors, if any, will have the right to seek contribution from any non-paying Guarantor, if any, so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.
Section 1402. Limitation on Guarantor Liability.
Each Guarantor, if any, and by its acceptance of Securities, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor, if any, not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors, if any, hereby irrevocably agree that the obligations of such Guarantor, if any, will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor, if any, that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor, if any, in respect of the obligations of such other Guarantor, if any, under this Article Fourteen, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance.
Section 1403. Execution and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 1401 hereof, each Guarantor, if any, hereby agrees that a notation of such Note Guarantee substantially in the form attached as Exhibit F hereto will be endorsed by an Officer of such Guarantor, if any, on each Securities authenticated and delivered by the Trustee and that this Indenture will be executed on behalf of such Guarantor, if any, by one of its Officers.
Each Guarantor, if any, hereby agrees that its Note Guarantee set forth in Section 1401 hereof will remain in full force and effect notwithstanding any failure to endorse on each Security a notation of such Note Guarantee.
If an Officer whose signature is on this Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates the Security on which a Note Guarantee is endorsed, the Note Guarantee will be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors, if any.
Section 1404. Guarantors May Consolidate, etc., on Certain Terms.
Except as otherwise provided in Section 1405 hereof, no Guarantor (if any) will, and the Company will not permit any Guarantor (if any) to, consolidate or merge with or into or wind up into (whether or not such Guarantor, if any, is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all its properties or assets in one or more related transactions, to any Person unless: (a) such Guarantor, if any, is the surviving entity or the Person formed by or surviving any such consolidation or merger (if other than such
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Guarantor, if any) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Guarantor, if any, or such Person, as the case may be, being herein called the “Successor Person”); (b) the Successor Person, if other than such Guarantor, if any, expressly assumes all the obligations of such Guarantor, if any, under this Indenture and such Guarantor’s Note Guarantee, if any, pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee; (c) immediately after such transaction, no Default or Event of Default exists; and (d) the Company shall have delivered to the Trustee an Officer’s Certificate and an opinion of counsel, each stating that such consolidation, merger or transfer and such supplemental indentures, if any, comply with this Indenture.
In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Note Guarantee endorsed upon the Securities and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, if any, such successor Person will succeed to and be substituted for the Guarantor, if any, with the same effect as if it had been named herein as a Guarantor, if any. Such successor Person thereupon may cause to be signed any or all of the Note Guarantees to be endorsed upon all of the Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee. All the Note Guarantees so issued will in all respects have the same legal rank and benefit under this Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Note Guarantees had been issued at the date of the execution hereof.
Except as set forth in Article 8 hereof, and notwithstanding clause 2 above, nothing contained in this Indenture or in any of the Securities will prevent any consolidation or merger of a Guarantor, if any, with or into the Company or another Guarantor, if any, or will prevent any sale or conveyance of the property of a Guarantor, if any, as an entirety or substantially as an entirety to the Company or another Guarantor, if any.
Section 1405. Releases.
The Note Guarantee of a Guarantor, if any, will be released:
(a) in connection with any sale or other disposition of all or substantially all the assets of that Guarantor (if any), including by way of merger or consolidation, to a Person that is not (either before or after giving effect to such transaction) the Company or a Company Subsidiary;
(b) in connection with any sale or other disposition of all the Capital Stock of that Guarantor, if any, to a Person that is not (either before or after giving effect to such transaction) the Company or a Company Subsidiary; or
(c) upon Legal Defeasance or Covenant Defeasance or satisfaction and discharge of this Indenture in accordance with Article Four hereof.
Any Guarantor, if any, not released from its obligations under its Note Guarantee as provided in this Section 1405 will remain liable for the full amount of the principal of and interest and premium, if any, on the Securities and for the other obligations of any Guarantor, if any, under this Indenture as provided in this Article Fourteen.
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ARTICLE 15
Subordination of Securities
Section 1501. Agreement to Subordinate.
Except as otherwise specified in a Board Resolution of the Company establishing a series of Securities pursuant to Section 301, the Company, for itself, its successors and assigns, covenants and agrees, and each Holder of Securities by his acceptance thereof, likewise covenants and agrees, that the payment of the principal of (and premium, if any) and interest, if any, on each and all of the Securities is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of all Senior Indebtedness.
Section 1502. Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Securities.
Except as otherwise specified in a Board Resolution of the Company establishing a series of Securities pursuant to Section 301, upon any distribution of assets of the Company upon any dissolution, winding up, liquidation or reorganization of the Company, whether in bankruptcy, insolvency, reorganization or receivership proceedings or upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the Company or otherwise (subject to the power of a court of competent jurisdiction to make other equitable provision reflecting the rights conferred in this Indenture upon the Senior Indebtedness and the holders thereof with respect to the Securities and the holders thereof by a lawful plan of reorganization under Bankruptcy Law):
(a) the holders of all Senior Indebtedness shall be entitled to receive payment in full of the principal thereof (and premium, if any) and interest due thereon before the Holders of the Securities are entitled to receive any payment upon the principal (or premium, if any) or interest, if any, on indebtedness evidenced by the Securities;
(b) any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article Fifteen shall be paid by the liquidating trustee or agent or other person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the principal of (and premium, if any) and interest on the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
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(c) in the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, shall be received by the Trustee or the Holders of the Securities before all Senior Indebtedness is paid in full, such payment or distribution shall be paid over, upon written notice to the Trustee, to the holder of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instrument evidencing any of such Senior Indebtedness may have been issued, ratably as aforesaid, for application to payment of all Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall have been paid in full, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of the Securities shall be subrogated to the rights of the holders of Senior Indebtedness to receive payments or distributions of cash, property or securities of the Company applicable to Senior Indebtedness until the principal of (and premium, if any) and interest, if any, on the Securities shall be paid in full and no such payments or distributions to the Holders of the Securities of cash, property or securities otherwise distributable to the holders of Senior Indebtedness shall, as between the Company, its creditors (other than the holders of Senior Indebtedness), and the Holders of the Securities be deemed to be a payment by the Company to or on account of the Securities. It is understood that the provisions of this Article Fifteen are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities, on the one hand, and the holders of the Senior Indebtedness, on the other hand. Nothing contained in this Article Fifteen or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Company, its creditors (other than the holders of Senior Indebtedness), and the Holders of the Securities, the obligation of the Company, which is unconditional and absolute, to pay to the Holders of the Securities the principal of (and premium, if any) and interest, if any, on the Securities as and when the same shall become due and payable in accordance with their terms, or to affect the relative rights of the Holders of the Securities and creditors of the Company (other than the holders of Senior Indebtedness), nor shall anything herein or in the Securities prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article Fifteen of the holders of Senior Indebtedness in respect of cash, property or securities of the Company received upon the exercise of any such remedy. Upon any payment or distribution of assets of the Company referred to in this Article Fifteen, the Trustee, subject to the provisions of Section 601, shall be entitled to rely upon a certificate of the liquidating trustee or agent or other person making any distribution to the Trustee for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Fifteen.
The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness. The Trustee shall not be liable to any such holder if it shall pay over or distribute to or on behalf of Holders of Securities or the Company moneys or assets to which any holder of Senior Indebtedness shall be entitled by virtue of this Article Fifteen.
If the Trustee or any Holder of Securities does not file a proper claim or proof of debt in the form required in any proceeding referred to above prior to 30 days before the expiration of
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the time to file such claim in such proceeding, then the holder of any Senior Indebtedness is hereby authorized, and has the right, to file an appropriate claim or claims for or on behalf of such Holder of Securities.
Section 1503. No Payment on Securities in Certain Circumstances.
Except as otherwise specified in a Board Resolution of the Company establishing a series of Securities pursuant to Section 301,
(a) Upon the maturity of any Senior Indebtedness by lapse of time, acceleration (unless waived, rescinded or annulled) or otherwise, or upon any payment default (with or without the giving of notice or lapse of time or both, in accordance with the terms of the instrument governing such Senior Indebtedness, and without any waiver or forgiveness) with respect to any Senior Indebtedness, all amounts payable thereon shall first be paid in full on such Senior Indebtedness, before any payment is made, directly or indirectly by set off or otherwise, on account of principal of, or interest on, the Securities of such series or to acquire any of the Securities of such series or on account of the redemption provisions of the Securities of such series.
(b) Upon a default with respect to any Senior Indebtedness (other than under circumstances when the terms of paragraph (a) of this Section are applicable), as such default is defined therein or in the instrument under which it is outstanding, permitting the holders to accelerate the maturity thereof, upon written notice thereof given to the Company and the Trustee by or on behalf of holders of such Senior Indebtedness (“Default Notice”), then, unless and until such default shall have been cured or waived by the holders of such Senior Indebtedness or shall have ceased to exist (the “Payment Blockage Period”), no direct or indirect payment shall be made by the Company with respect to the principal of, or interest on, the Securities of such series and the coupons, if any, appertaining thereto or to acquire any of such Securities or on account of the redemption provisions of the Securities of such series and the coupons, if any, appertaining thereto; provided, however, that this paragraph (b) shall not prevent the making of any payment (which is not otherwise prohibited by paragraph (a)) for more than 179 days after the Default Notice shall have been given unless the Senior Indebtedness in respect of which such event of default exists has been declared due and payable in its entirety, in which case no such payment may be made until such acceleration has been rescinded or annulled or such Senior Indebtedness has been paid in full.
(c) If, notwithstanding the foregoing provisions of this Section, any payment on account of principal of, or interest on, the Securities of such series or of any coupon appertaining thereto shall be received by the Trustee, by any Holder or by any Paying Agent (or, if the Company is acting as its own Paying Agent, money for any such payment is segregated and held in trust), then, unless and until such payment is no longer prohibited by this Section, such payment (subject to the provisions of Section 1504) shall be held in trust for the benefit of the holders of Senior Indebtedness and, upon notice to the Trustee or such Paying Agent from the representative of the holders of the Senior Indebtedness and pursuant to the directions of such representative, shall be paid over or delivered to the holders of Senior Indebtedness or their representative(s), ratably according to the aggregate amount remaining unpaid on account of the principal of and interest on the Senior Indebtedness held or represented by each, for application
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to the payment or prepayment of all Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior Indebtedness in full in accordance with its terms, after giving effect to any concurrent payment or distribution or provision therefor to or for the holders of Senior Indebtedness. Promptly after becoming aware thereof, the Company shall give written notice to the Trustee of any event prohibiting payments on account of principal of, or interest on, the Securities of any series and any coupons appertaining thereto and, in such event, shall provide to the Trustee, in the form of an Officers’ Certificate, the names and addresses of the holders of such Senior Indebtedness and their representative(s), if any, the amount of the Senior Indebtedness held by each such holder, any information necessary to calculate the daily or other increase in Senior Indebtedness held by such holders and any other information which the Trustee may reasonably request to comply with this Article. Subject to the provisions of Section 1502 hereof, in the event that the Trustee or the Paying Agent reasonably determines that additional evidence is required with respect to any person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article, the Trustee or the Paying Agent, as the case may be, may request that such person furnish evidence to its reasonable satisfaction as to the extent such person is entitled to participate in such payment or distribution and as to other facts pertinent to the rights of such persons under this Article and if such evidence is not furnished, the Trustee or the Paying Agent, as the case may be, may defer any payment to such person pending judicial determination as to the right of such person to receive such payment.
Section 1504. Payments on Securities Permitted.
Nothing contained in this Indenture or in any of the Securities shall (a) affect the obligation of the Company to make, or prevent the Company from making, at any time except as provided in Sections 1502 and 1503, payments of principal of (or premium, if any) or interest, if any, on the Securities or (b) prevent the application by the Trustee of any moneys deposited with it hereunder to the payment of or on account of the principal of (or premium, if any) or interest, if any, on the Securities, unless the Trustee shall have received at its Corporate Trust Office written notice of any event prohibiting the making of such payment more than two Business Days prior to the date fixed for such payment.
Section 1505. Authorization of Holders to Trustee to Effect Subordination.
Each Holder of Securities by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate any subordination as provided in this Article Fifteen and appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 1506. Notices to Trustee.
Notwithstanding the provisions of this Article or any other provisions of this Indenture, neither the Trustee nor any Paying Agent (other than the Company) shall be charged with knowledge of the existence of any Senior Indebtedness or of any event which would prohibit the making of any payment of moneys to or by the Trustee or such Paying Agent, unless and until the Trustee or such Paying Agent shall have received written notice thereof from the Company or from the holder of any Senior Indebtedness or from the trustee for any such holder, together
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with proof satisfactory to the Trustee of such holding of Senior Indebtedness or of the authority of such trustee; provided, however, that if at least two Business Days prior to the date upon which by the terms hereof any such moneys may become payable for any purpose (including, without limitation, the payment of either the principal (or premium, if any) or interest, if any, on any Security) the Trustee shall not have received with respect to such moneys the notice provided for in this Section 1506, then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such moneys and to apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary, which may be received by it within two Business Days prior to such date. The Trustee shall be entitled to rely conclusively on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness (or a trustee on behalf of such holder) to establish that such a notice has been given by a holder of Senior Indebtedness or a trustee on behalf of any such holder. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article Fifteen, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article Fifteen and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.
Section 1507. Trustee as Holder of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article Fifteen in respect of any Senior Indebtedness at any time held by it to the same extent as any other holder of Senior Indebtedness and nothing elsewhere in this Indenture shall be construed to deprive the Trustee of any of its rights as such holder.
Nothing in this Article Fifteen shall apply to claims of, or payments to, the Trustee under or pursuant to Section 607.
Section 1508. Modifications of Terms of Senior Indebtedness.
Any renewal or extension of the time of payment of any Senior Indebtedness or the exercise by the holders of Senior Indebtedness of any of their rights under any instrument creating or evidencing Senior Indebtedness, including, without limitation, the waiver of default thereunder, may be made or done all without notice to or assent from the Holders of the Securities or the Trustee. No compromise, alteration, amendment, modification, extension, renewal or other change of, or waiver, consent or other action in respect of, any liability or obligation under or in respect of, or of any of the terms, covenants or conditions of any indenture or other instrument under which any Senior Indebtedness is outstanding or of such Senior Indebtedness, whether or not such release is in accordance with the provisions of any applicable document, shall in any way alter or affect any of the provisions of this Article Fifteen or of the Securities relating to the subordination thereof.
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Section 1509. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to in this Article Fifteen, the Trustee and the Holders of the Securities shall be entitled to rely conclusively upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit of creditors, agent or other person making such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the persons entitled to participate in such payment or distribution, the holders of Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Fifteen.
[signature pages follow]
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This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the date first written above.
| CHS/COMMUNITY HEALTH SYSTEMS, INC., Issuer | ||
| By: | ||
| Name: | ||
| Title: | ||
| REGIONS BANK, Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
EXHIBIT A
[LEGEND IF SECURITY IS A GLOBAL SECURITY]
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 305 OF THE INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 309 OF THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF CHS/COMMUNITY HEALTH SYSTEMS, INC.
A-1
[FACE OF SECURITY]
CUSIP
[TITLE OF SECURITIES]
| No. |
$ |
CHS/COMMUNITY HEALTH SYSTEMS, INC.
promises to pay to or registered assigns, the principal sum of Interest Payment Dates [ ] and [ ], commencing on [ ].
Record Dates: [ ] and [ ]
Dated: ,
| CHS/COMMUNITY HEALTH SYSTEMS, INC. | ||
| By: |
||
| Name: | ||
| Title: | ||
Dated: ,
This is one of the Securities referred to
in the within-mentioned Indenture:
[ ],
as Trustee
| By: | ||
| Authorized Signatory |
A-2
[Back of Security]
[Insert title of Securities]
[Insert the Global Security Legend, if applicable pursuant to the provisions of the Indenture]
[Insert any legend required by the Internal Revenue Code and the regulations thereunder]
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
| 1. | Interest. |
CHS/Community Health Systems, Inc., a Delaware corporation (herein the “Company” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to , or registered assigns, the principal sum of [Dollars] [if other than Dollars, substitute other currency units] on , [if the Security is to bear interest prior to Stated Maturity, insert — , and to pay interest thereon from or from the most recent Interest Payment Date to which interest has been paid or duly provided for], [semiannually] [if other than semi-annual interest at a fixed rate, insert frequency of payment and payment dates] on and in each year, commencing , and at the Stated Maturity thereof, at [if the Security is to bear interest at a fixed rate, insert — the rate of % per annum], [if the Security is to bear interest at a rate determined with reference to one or more formula, refer to description index below] until the principal hereof is paid or made available for payment] [if applicable, insert — , and (to the extent that the payment of such interest shall be legally enforceable) at [if the Security is to bear interest at a fixed rate, insert — the rate of % per annum on any overdue principal and premium and on any overdue installment of interest from the dates such amounts are due until they are paid or made available for payment]. Interest shall be computed on the basis of [a 360-day year of twelve 30-day months] [if another basis of calculating interest is to be different, insert a description of such method.]
| 2. | Method of Payment. |
The Company will pay interest on the Securities on each [ ] and [ ] to the Persons who are registered Holders of the relevant Securities at the close of business on the [ ] or [ ] next preceding the Interest Payment Date, even if such Securities are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 307 of the Indenture with respect to Defaulted Interest. The Securities will be payable as to principal, premium, if any, and interest at the office or agency of the Company maintained for such purpose in [ ], [if applicable, insert —; provided, however, that at the option of the Company payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the list provided by the Company to the Registrar and provided, further, that if this Security is a Global Security, payment may be made pursuant to the applicable procedures of the Depositary as permitted in said Indenture]. Such payment shall be in such coin or currency of [the United States of America] [insert other currency or currency unit, if applicable] as at the time of payment is legal tender for payment of public and private debts.
A-3
| 3. | Paying Agent and Registrar. |
Initially, the Trustee under the Indenture will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.
| 4. | Indenture. |
This Security is one of a duly authorized issue of Securities of the Company issued and to be issued in one or more series under an Indenture, dated as of , (herein called the “Indenture”), between the Company and , as Trustee (herein called the “Trustee” which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code § 77aaa-77bbbb). The Securities are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Security conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
| 5. | Redemption. |
[If applicable, insert — The Securities of this series are subject to redemption upon not less than 30 days’ notice to the Holders, [if applicable, insert — (1) on in any year commencing with the year and ending with the year through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [if applicable, insert — on or after , ], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): if redeemed [if applicable insert — on or before , %, and if redeemed] during the 12-month period beginning of the years indicated,
| Year | Redemption Price | Year | Redemption Price |
and thereafter at a Redemption Price equal to % of the principal amount, together in the case of any such redemption [if applicable, insert — (whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
A-4
[If applicable, insert — The Securities of this series are subject to redemption upon not less than 30 days’ notice to the Holders, (1) on in any year commencing with the year and ending with the year through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert — on or after ], as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning of the years indicated,
| Year |
Redemption Price for Redemption Through Operation of
the |
Redemption Price for Redemption Otherwise than
Through |
and thereafter at a Redemption Price equal to % of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Date referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert — The sinking fund for this series provides for the redemption on in each year beginning with the year and ending with the year of [if applicable, insert — not less than $ (“mandatory sinking fund”) and not more than] $ aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than through [mandatory] sinking fund payments may be credited against subsequent [if applicable, insert — mandatory] sinking fund payments otherwise required to be made [if applicable, insert — in the inverse order in which they become due].]
[If applicable, insert — The Securities are subject to redemption, as a whole at any time or in part from time to time, at the sole election of the Company, upon not less than 35 or more than 75 days’ notice to the Trustee at a Redemption Price equal to $ .]
[If applicable, insert — The Holder of this Security shall have the right to require the Company to pay this Security in full on , by giving the Company or the Registrar written notice of the exercise of such right not less than 30 or more than 60 days prior to such date.]
[If the Security is subject to redemption, insert — In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
A-5
[If applicable, insert — This Security is not subject to redemption prior to maturity.]
| 6. | Denominations, Transfer, Exchange. |
[If applicable, insert — The Securities of this series are issuable only in registered form without coupons in denominations of $ and any integral multiple thereof.] As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same. A Holder may register the transfer or exchange of the Security as provided in the Indenture and subject to certain limitations therein set forth. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture.
[If applicable, insert — The Securities of this series will be represented by one or more Global Securities registered in the name of , (the “Depositary”), or a nominee of the Depositary. So long as the Depositary, or its nominee, is the registered holder and owner of this Global Security, the Depositary or such nominee, as the case may be, will be considered the sole owner and holder of the Securities for all purposes under the Indenture. The Global Security may be transferred, in whole and not in part, only to the Depositary or another nominee of the Depositary. The Depositary will credit, on its book-entry registration and transfer system, the respective principal amounts of the Securities represented by such Global Security to the accounts of institutions that have accounts with the Depositary or its nominee (“participants”). Ownership of beneficial interests in a Global Security will be shown on, and the transfer of those ownership interests will be effected through, records maintained by the Depositary (with respect to participants’ interests) and such participants (with respect to the owners of beneficial interests in such Global Security).]
[If applicable, insert — The Securities represented by this Global Security are exchangeable for Securities in permanent form of like tenor as such Global Security in denominations of $1,000 and in any greater amount that is an integral multiple thereof if (i) the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for this Global Security or if at any time the Depositary ceases to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, (ii) the Company in its discretion at any time determines not to have all of the Securities of this series represented by the Global Security and notifies the Trustee thereof, or (iii) an Event of Default has occurred and is continuing with respect to the Securities. Any Security that is exchangeable pursuant to the preceding sentence is exchangeable only for Securities of this series.]
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
| 7. | Persons Deemed Owners. |
The registered Holder of a Security may be treated as its owner for all purposes.
A-6
| 8. | Amendment, Supplement and Waiver. |
Subject to certain exceptions, the Indenture and the Securities may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the then outstanding Securities of each series affected by such amendment or supplement. Without the consent of any Holder of a Securities of each series affected by such amendment or supplement, the Indenture and the Securities may be amended or supplemented to, among other things, (a) evidence the succession of another person to the Company or any Guarantor and the assumption of such successor to the covenants in the Indenture; (b) add to the covenants of the Company or Guarantors or to surrender any right or power conferred upon the Company or any such Guarantor; (c) add additional Events of Default with respect to any or all series of Securities; (d) pledge property to the Trustee as security for the Securities; (e) reflect the addition or release of any Guarantor in accordance with Article 14 of the Indenture; (f) revise the provisions of the Indenture with respect to Bearer Securities (provided that such action shall not materially and adversely affect the interests of any Holders of Securities); (g) change provisions of the Indenture, such change only effective when there is no Security Outstanding of any series created prior to such change which is entitled to benefit under such provision; (h) evidence acceptance of a successor Trustee pursuant to the requirements of Section 609 or Section 611(b) of the Indenture; (i) add to the conditions of Securities; (j) supplement any provisions to the extent necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Section 401 of the Indenture (provided that such action shall not materially and adversely affect the interests of any Holders of Securities); (k) revise the Indenture as necessary or desirable in accordance with any amendments to the Trust Indenture Act; (l) issue and establish the form and terms of any series of Securities with any terms permitted by the Trust Indenture Act; (m) conform any provisions of the Indenture or any Securities with the Description of Notes; (n) change any provision of the Indenture with respect to any series of Securities (provided that such action shall not materially and adversely affect the interests of any Holders of Securities); (o) change any provision of the Indenture (provided that such action shall not materially and adversely affect the interests of any Holders of Securities); and (p) cure any ambiguity or mistake.
| 9. | Defaults and Remedies. |
Events of Default include: (a) default for 30 days in the payment when due of interest on the Securities; (b) default in payment when due of principal of or premium, if any, on the Securities; (c) failure by the Company for 90 days to comply with certain other agreements in the Indenture or the Securities; and (d) certain events of bankruptcy or insolvency with respect to the Company or any of its Restricted Subsidiaries. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least [30]% in principal amount of the then outstanding Securities may declare all the Securities to be due and payable. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency involving the Company, all outstanding Securities will become due and payable without further action or notice. Holders may not enforce the Indenture or the Securities except as provided in the Indenture. Subject to certain limitations, Holders of a majority in principal amount of the then
A-7
outstanding Securities may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Securities notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest) if it determines that withholding notice is in their interest. The Holders of a majority in aggregate principal amount of the Securities then outstanding by notice to the Trustee may on behalf of the Holders of all of the Securities waive any past Default or Event of Default and its consequences under the Indenture except a Default or Event of Default in the payment of interest on, or the principal of, the Securities or a Default or Event of Default with respect to a covenant or provision of the Indenture that under Article 9 of the Indenture may not be amended without the consent of the Holder of each of the Outstanding Securities. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default.
| 10. | Trustee Dealings with Company. |
The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.
| 11. | No Recourse against Others. |
A director, officer, employee, incorporator or stockholder, of the Company, as such, shall not have any liability for any obligations of the Company or the Guarantors under the Securities or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Securities.
| 12. | [If applicable, insert—Guarantees. |
The payment by the Company of the principal of and interest on the Security is fully and unconditionally guaranteed on a joint and several basis by each of the Guarantors on the terms set forth in the Indenture.]
| 13. | Authentication. |
This Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
| 14. | Abbreviations. |
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
A-8
| 15. | CUSIP Numbers. |
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Securities and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Securities or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to:
Regions Bank
150 4th Avenue North, Suite 900
Nashville, Tennessee 37219
Attention: Corporate Trust Services
| 16. | GOVERNING LAW. |
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS SECURITY WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.
A-9
ASSIGNMENT FORM
To assign this Security, fill in the form below:
| (I) or (we) assign and transfer this Security to: | ||
| (Insert assignee’s legal name) |
| (Insert assignee’s soc. sec. or tax I.D. no.) | ||
| (Print or type assignee’s name, address and zip code) | ||
and irrevocably appoint to transfer this Security on the books of the Company. The agent may substitute another to act for him.
Date:
| Your Signature: | ||
| (Sign exactly as your name appears on the face of this Security) |
| Signature Guarantee*: | ||
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
A-10
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY*
The following exchanges of a part of this Global Security for an interest in another Global Security or for a Definitive Security, or exchanges of a part of another Global Security or Definitive Security for an interest in this Global Security, have been made:
| Principal Amount of this Global |
Amount of decrease in Principal |
Amount of increase in Principal |
Signature of authorized officer of | |||
* This schedule should be included only if the Security is issued in global form.
A-11
EXHIBIT B
[FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR CLEARSTREAM BANKING BY A BENEFICIAL OWNER OF SECURITIES, IN ORDER TO RECEIVE A DEFINITIVE BEARER SECURITY IN EXCHANGE FOR AN INTEREST IN A TEMPORARY GLOBAL SECURITY OR TO EXCHANGE AN INTEREST IN A TEMPORARY GLOBAL SECURITY FOR AN INTEREST IN A PERMANENT GLOBAL SECURITY]
CHS/COMMUNITY HEALTH SYSTEMS, INC.
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of ● (the “Indenture”) between CHS/Community Health Systems, Inc. (the “Company”) and Regions Bank, as Trustee. Terms used herein unless otherwise defined shall have the meanings ascribed to them in the Indenture.
This is to certify that as of the date hereof [and except as provided in the fourth paragraph hereof]*, $ principal amount of the above-captioned Securities represented by a temporary Global Security (the “temporary Global Security”) held by you for our account is:
(i) beneficially owned by persons that are not United States persons (as defined below);
(ii) owned by United States person(s) that are (a) foreign branches of United States financial institutions (as defined in United States Treasury Regulation Section 1.165-12(c)(1)(v) (“financial institutions”)) purchasing for their own account or for resale, or (b) United States person(s) who acquired the beneficial interest in the temporary Global Security through foreign branches of United States financial institutions and who hold the beneficial interest in the temporary Global Security through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, for the benefit of the Company, that it will comply with the requirements of Section 165(j) (3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as amended, and the regulations thereunder); or
(iii) owned by financial institution(s) for the purpose of resale during the restricted period (as defined in United States Treasury Regulation Section 1.163-5(c)(2)(i)(D)(7)) and, in addition, financial institution(s) described in this clause (iii) (whether or not also described in clause (i) or (ii)), further certify that they have not acquired the beneficial interest in the temporary Global Security for the purpose of resale directly or indirectly to a United States person or to a person within the United States.
“United States person” means a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States and an estate or trust the income of which is subject to United States federal income taxation regardless of its source, and “United States” means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction (including the Commonwealth of Puerto Rico).
B-1
[This certificate excepts and does not relate to $ principal amount of the temporary Global Security held by you for our account as to which we are not able to provide a certificate in this form. We understand that exchange of such portion of the temporary Global Security for [definitive Bearer Securities] [interests in a permanent Global Security] cannot be made until we are able to provide a certificate in this form.]* We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the above-captioned Securities held by you for our account if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
We understand that this certificate is required in connection with certain tax laws and regulations in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.
Dated:
| [Name of Person Making Certification] | ||
| By: | ||
* Delete if inappropriate.
A-2
EXHIBIT C
[FORM OF CERTIFICATE TO BE GIVEN TO THE APPROPRIATE TRUSTEE BY EUROCLEAR OR CLEARSTREAM BANKING REGARDING THE EXCHANGE OF A TEMPORARY GLOBAL SECURITY FOR DEFINITIVE SECURITIES OR FOR A PORTION OF A PERMANENT GLOBAL SECURITY]
CHS/COMMUNITY HEALTH SYSTEMS, INC.
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of ● (the “Indenture”) between CHS/Community Health Systems, Inc. (the “Company”) and Regions Bank, as Trustee. Terms used herein unless otherwise defined shall have the meanings ascribed to them in the Indenture.
We refer to that portion of the temporary Global Security in respect of the above-captioned Securities which is herewith submitted to be exchanged for [definitive Bearer Securities] [interests in a permanent Global Security] (the “Submitted Portion”) as provided in the Prospectus Supplement dated [insert date of Prospectus Supplement] in respect of such issue. This is to certify that (i) we have received in writing or by tested telex or electronically (in accordance with the requirements of United States Treasury Regulation Section 1.163-5(c)(2)(i)(D)(3)(ii)) a certificate or certificates with respect to the entire Submitted Portion, substantially in the form of Exhibit C to the Indenture, and (ii) the Submitted Portion includes no part of the temporary Global Security excepted in such certificates.
We further certify that as of the date hereof we have not received any notification from any of the persons giving such certificates to the effect that the statements made by them with respect to any part of the Submitted Portion are no longer true and cannot be relied on as of the date thereof.
We understand that this certificate is required in connection with certain tax laws and regulations in the United States of America. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings. Submitted Portion:
| U.S. $ | ||||||||
| Date: |
[Euroclear Bank S.A./N.V.] [Clearstream Banking S.A.]*
| By: |
* Delete if inappropriate.
C-1
EXHIBIT D
[FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR CLEARSTREAM BANKING BY A BENEFICIAL OWNER OF SECURITIES, IN ORDER TO RECEIVE PAYMENT ON A TEMPORARY GLOBAL SECURITY]
CHS/COMMUNITY HEALTH SYSTEMS, INC.
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of ● (the “Indenture”) between CHS/Community Health Systems, Inc. (the “Company”) and Regions Bank, as Trustee. Terms used herein unless otherwise defined shall have the meanings ascribed to them in the Indenture.
This is to certify that as of the date hereof [and except as provided in the fourth paragraph hereof]*, $ principal amount of the above-captioned Securities represented by a temporary Global Security (the “temporary Global Security”) held by you for our account is:
(i) beneficially owned by persons that are not United States persons (as defined below);
(ii) owned by United States person(s) that are (a) foreign branches of United States financial institutions (as defined in United States Treasury Regulation Section 1.165-12(c)(1)(v) (“financial institutions”)) purchasing for their own account or for resale, or (b) United States person(s) who acquired the beneficial interest in the temporary Global Security through foreign branches of United States financial institutions and who hold the beneficial interest in the temporary Global Security through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, for the benefit of the Company, that it will comply with the requirements of Section 165(j) (3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as amended, and the regulations thereunder); or
(iii) owned by financial institution(s) for the purpose of resale during the restricted period (as defined in United States Treasury Regulation Section 1.163-5(c)(2)(i)(D)(7)) and, in addition, financial institution(s) described in this clause (iii) (whether or not also described in clause (i) or (ii)), further certify that they have not acquired the beneficial interest in the temporary Global Security for the purpose of resale directly or indirectly to a United States person or to a person within the United States.
“United States person” means a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States and an estate or trust the income of which is subject to United States federal income taxation regardless of its source, and “United States” means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction (including the Commonwealth of Puerto Rico).
* Delete if inappropriate.
D-1
[This certificate excepts and does not relate to $ principal amount of the temporary Global Security held by you for our account as to which we are not able to provide a certificate in this form. We understand that payments, if any, due with respect to such portion of the temporary Global Security cannot be made until we are able to provide a certificate in this form.]*
We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the above-captioned Securities held by you for our account if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
We understand that this certificate is required in connection with certain tax laws and regulations in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.
Dated:
| [Name of Person Making Certification] | ||
| By: |
||
* Delete if inappropriate.
D-2
EXHIBIT E
[FORM OF CERTIFICATE TO BE GIVEN TO THE APPROPRIATE TRUSTEE BY EUROCLEAR OR CLEARSTREAM BANKING REGARDING PAYMENT ON A TEMPORARY GLOBAL SECURITY]
CHS/COMMUNITY HEALTH SYSTEMS, INC.
[Insert title or description of Securities]
Reference is hereby made to the Indenture, dated as of ● (the “Indenture”) between CHS/Community Health Systems, Inc. (the “Company”) and Regions Bank, as Trustee. Terms used herein unless otherwise defined shall have the meanings ascribed to them in the Indenture.
We refer to that portion of the temporary Global Security in respect of the above-captioned Securities for which we hereby request that you make payment to us of the amounts payable on the relevant payment date (the “Submitted Portion”) as provided in the Prospectus Supplement dated [insert date of Prospectus Supplement] in respect of such issue. This is to certify that (i) we have received in writing or by tested telex or electronically (in accordance with the requirements of United States Treasury Regulation Section 1.163- 5(c)(2)(i)(D)(3)(ii)) a certificate or certificates with respect to the entire Submitted Portion, substantially in the form of Exhibit E to the Indenture, and (ii) the Submitted Portion includes no part of the temporary Global Security excepted in such certificates.
We further certify that as of the date hereof we have not received any notification from any of the persons giving such certificates to the effect that the statements made by them with respect to any part of the Submitted Portion are no longer true and cannot be relied on as of the date thereof.
We understand that this certificate is required in connection with certain tax laws and regulations in the United States of America. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.
Submitted Portion:
| U.S. $ | ||||||||
| Date: | ||||||||
| [Euroclear bank S.A./N.V.]*
[Clearstream Banking S.A.]* | ||||||||
| By: |
||||||||
* Delete if inappropriate.
E-1
EXHIBIT F
[FORM OF NOTATION OF NOTE GUARANTEE]
For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture dated as of ● (the “Indenture”) among CHS/Community Health Systems, Inc., (the “Company”), the Guarantors party thereto and Regions Bank, as trustee (the “Trustee”), (a) the due and punctual payment of the principal of, premium, if any, and interest on, the [Securities], whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on overdue principal of and interest on the [Securities], if any, if lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of any [Securities] or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of [Securities] and to the Trustee pursuant to the Note Guarantee and the Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee. Each Holder of a [Security], by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee, on behalf of such Holder, to take such action as may be necessary or appropriate to effectuate the subordination as provided in the Indenture and (c) appoints the Trustee attorney-in-fact of such Holder for such purpose.
Capitalized terms used but not defined herein have the meanings given to them in the Indenture.
| [Name of Guarantor(s)] | ||
| By: |
||
| Name: | ||
| Title: | ||
F-1
[LETTERHEAD OF HODGSON RUSS LLP]
Exhibit 5.1
May 6, 2015
Commmunity Health Systems, Inc.
CHS/Commmunity Health Systems, Inc.
4000 Meridian Boulevard
Franklin, TN 37067
| Re: | Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as New York counsel to Community Health Systems, Inc. (the “Parent”), CHS/Community Health Systems, Inc. (“CHS”) and the entities identified on Exhibit A attached to this letter (collectively the “Guarantors”) solely for the purpose of providing the opinions set forth in this letter and for no other purpose (including, but not limited to, conducting any negotiation or providing any legal or other advice) in connection with the filing by the Parent with the Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form S-3 (the “Registration Statement”), which relates to the shelf registration under the Securities Act of 1933, as amended, (the “Securities Act”) of the issuance from time to time of, among other securities, (1) Securities (as such term is defined in an Indenture between the Parent and Regions Bank, as trustee, the form of which is attached as Exhibit No. 4.1 to the Registration Statement (the “Parent Senior Debt Indenture”)) (collectively the “Parent Senior Debt Securities”), which are to be guaranteed by CHS and the Guarantors pursuant to the Parent Senior Debt Indenture (the guarantees by CHS and the Guarantors pursuant to the Parent Senior Debt Indenture being collectively the “Parent Senior Debt Guarantees” and notations of such guarantees in the form attached to the Parent Senior Debt Indenture being collectively the “Parent Senior Debt Notations of Note Guarantee”), (2) Securities (as such term is defined in an Indenture between the Parent and Regions Bank, as trustee, the form of which is attached as Exhibit No. 4.2 to the Registration Statement (the “Parent Subordinated Debt Indenture”)) (collectively the “Parent Subordinated Debt Securities”), which are to be guaranteed by CHS and the Guarantors pursuant to the Parent Subordinated Debt Indenture (the guarantees by CHS and the Guarantors pursuant to the Parent Subordinated Debt Indenture being collectively the “Parent Subordinated Debt Guarantees” and notations of such guarantees in the form attached to the Parent Subordinated Debt Indenture being collectively the “Parent Subordinated Debt Notations of Note Guarantee”), (3) Securities (as such term is defined in an Indenture between CHS and Regions Bank, as trustee, the form of which is attached as Exhibit No. 4.3 to the Registration Statement (the “CHS Senior Debt Indenture”)) (collectively the “CHS Senior Debt Securities”), which are to be guaranteed by the Parent and the Guarantors pursuant to the CHS Senior Debt Indenture (the guarantees by the Parent and the Guarantors pursuant to the CHS Subordinated Debt Indenture being collectively the “CHS Senior Debt Guarantees” and notations of such guarantees in the form attached to the CHS Senior Debt Indenture being collectively the “CHS Senior Debt Notations of Note Guarantee”), and (4) Securities (as such term is defined in an
CHS/Community Health Systems, Inc.
May 6, 2015
Page 2
Indenture between CHS and Regions Bank, as trustee, the form of which is attached as Exhibit No. 4.4 to the Registration Statement (collectively the “CHS Subordinated Debt Indenture”)) (the “CHS Subordinated Debt Securities”), which are to be guaranteed by the Parent and the Guarantors pursuant to the CHS Subordinated Debt Indenture (the guarantees by the Parent and the Guarantors pursuant to the CHS Subordinated Debt Indenture being collectively the “CHS Subordinated Debt Guarantees” and notations of such guarantees in the form attached to the CHS Subordinated Debt Indenture being collectively the “CHS Subordinated Debt Notations of Note Guarantee”).
The opinions set forth in this letter are subject to the following qualifications:
1. The opinions set forth in this letter are based solely upon (a) our review of, as submitted to us, (i) the forms of the Parent Senior Debt Indenture, the Parent Subordinated Debt Indenture, the CHS Senior Debt Indenture and the CHS Subordinated Debt Indenture, (ii) the forms of the Parent Senior Debt Securities, the Parent Subordinated Debt Securities, the CHS Senior Debt Securities and the CHS Subordinated Debt Securities and (iii) the Registration Statement (collectively the “Reviewed Documents”) and (b) our review of law of the State of New York that a lawyer admitted to practice in the State of New York, exercising customary professional diligence, would normally be expected to recognize as being applicable to the transactions contemplated by the Reviewed Documents other than securities or Blue Sky law (collectively “New York Law”). Other than our review of the Reviewed Documents, we have not reviewed any document referred to in any of the Reviewed Documents or made any inquiry or other investigation as to any factual matter (including, but not limited to, (a) any review of any of the files and other records of the Parent, CHS, any of the Guarantors, any affiliate of the Parent, CHS or any of the Guarantors or any court or other governmental authority, (b) any review of any of our files and other records, (c) any inquiry of or other communication with any director, officer, member, manager, general partner, limited partner, employee or other agent of the Parent, CHS, any of the Guarantors or any affiliate of the Parent, CHS or any of the Guarantors or (d) any inquiry of any past or present attorney of ours).
2. We do not express any opinion concerning any law other than New York Law.
3. We have assumed without any inquiry or other investigation, (a) the legal capacity of each natural person, (b) the genuineness of each signature on any of the Reviewed Documents, the authenticity, accuracy and completeness of each of the Reviewed Documents and the conformity of each of the Reviewed Documents to the copy or form thereof submitted to us, (c) the accuracy on the date of this letter as well as on the date made of each statement as to any factual matter contained in any of the Reviewed Documents and (d) there not existing outside of the Reviewed Documents and New York Law anything that would render incorrect any opinion set forth in this letter.
4. This letter is given without regard to any change after the date of this letter with respect to any factual or legal matter, and we disclaim any obligation to notify you concerning any such change or any effect of any such change on any opinion set forth in this letter.
CHS/Community Health Systems, Inc.
May 6, 2015
Page 3
Subject to the qualifications set forth in this letter, it is our opinion that:
1. Assuming that the Parent Senior Debt Indenture will have been duly and validly authorized, executed and delivered by all parties thereto (including, but not limited to, the Parent), the Parent Senior Debt Indenture will constitute a legally valid and binding obligation of the Parent, except as the enforcement thereof may be limited by any bankruptcy, insolvency, reorganization, moratorium or other similar law now or hereafter in effect relating to or affecting rights and remedies of creditors or by general equitable principles (collectively the “Enforceability Exceptions”) and except as any right to indemnification or contribution thereunder may be limited by any applicable public policy consideration.
2. Assuming that the Parent Subordinated Debt Indenture will have been duly and validly authorized, executed and delivered by all parties thereto (including, but not limited to, the Parent), the Parent Subordinated Debt Indenture will constitute a legally valid and binding obligation of the Parent, except as the enforcement thereof may be limited by the Enforceability Exceptions and except as any right to indemnification or contribution thereunder may be limited by any applicable public policy consideration.
3. Assuming that the CHS Senior Debt Indenture will have been duly and validly authorized, executed and delivered by all parties thereto (including, but not limited to, CHS), the CHS Senior Debt Indenture will constitute a legally valid and binding obligation of CHS, except as the enforcement thereof may be limited by the Enforceability Exceptions and except as any right to indemnification or contribution thereunder may be limited by any applicable public policy consideration.
4. Assuming that the CHS Subordinated Debt Indenture will have been duly and validly authorized, executed and delivered by all parties thereto (including, but not limited to, CHS), the CHS Subordinated Debt Indenture will constitute a legally valid and binding obligation of CHS, except as the enforcement thereof may be limited by the Enforceability Exceptions and except as any right to indemnification or contribution thereunder may be limited by any applicable public policy consideration.
5. Assuming that (a) the Parent Senior Debt Indenture will have been duly and validly authorized, executed and delivered by all parties thereto (including, but not limited to, the Parent), (b) one or more supplemental indentures, to the extent necessary, will have been duly and validly authorized, executed and delivered by all parties thereto (including, but not limited to, the Parent, CHS and the Guarantors) and (c) the Parent Senior Debt Securities will have been duly and validly authorized by the Parent for issuance by the Parent pursuant to the Parent Senior Debt Indenture, when duly and validly executed by the Parent and duly and validly authenticated and delivered by Regions Bank, as trustee, against payment therefor, all in accordance with the terms of the Parent Senior Debt Indenture, the Parent Senior Debt Securities will constitute legally valid and binding obligations of the Parent, except as the enforcement
CHS/Community Health Systems, Inc.
May 6, 2015
Page 4
thereof may be limited by the Enforceability Exceptions and except as any right to indemnification or contribution thereunder may be limited by any applicable public policy consideration.
6. Assuming that (a) the Parent Subordinated Debt Indenture will have been duly and validly authorized, executed and delivered by all parties thereto (including, but not limited to, the Parent), (b) one or more supplemental indentures, to the extent necessary, will have been duly and validly authorized, executed and delivered by all parties thereto (including, but not limited to, the Parent, CHS and the Guarantors) and (c) the Parent Subordinated Debt Securities will have been duly and validly authorized by the Parent for issuance by the Parent pursuant to the Parent Subordinated Debt Indenture, when duly and validly executed by the Parent and duly and validly authenticated and delivered by Regions Bank, as trustee, against payment therefor, all in accordance with the terms of the Parent Subordinated Debt Indenture, the Parent Subordinated Debt Securities will constitute legally valid and binding obligations of the Parent, except as the enforcement thereof may be limited by the Enforceability Exceptions and except as any right to indemnification or contribution thereunder may be limited by any applicable public policy consideration.
7. Assuming that (a) the CHS Senior Debt Indenture will have been duly and validly authorized, executed and delivered by all parties thereto (including, but not limited to, CHS), (b) one or more supplemental indentures, to the extent necessary, will have been duly and validly authorized, executed and delivered by all parties thereto (including, but not limited to, CHS, the Parent and the Guarantors) and (c) the CHS Senior Debt Securities will have been duly and validly authorized by CHS for issuance by CHS pursuant to the CHS Senior Debt Indenture, when duly and validly executed by CHS and duly and validly authenticated and delivered by Regions Bank, as trustee, against payment therefor, all in accordance with the terms of the CHS Senior Debt Indenture, the CHS Senior Debt Securities will constitute legally valid and binding obligations of CHS, except as the enforcement thereof may be limited by the Enforceability Exceptions and except as any right to indemnification or contribution thereunder may be limited by any applicable public policy consideration.
8. Assuming that (a) the CHS Subordinated Debt Indenture will have been duly and validly authorized, executed and delivered by all parties thereto (including, but not limited to, CHS), (b) one or more supplemental indentures, to the extent necessary, will have been duly and validly authorized, executed and delivered by all parties thereto (including, but not limited to, CHS, the Parent and the Guarantors) and (c) the CHS Subordinated Debt Securities will have been duly and validly authorized by CHS for issuance by CHS pursuant to the CHS Subordinated Debt Indenture, when duly and validly executed by CHS and duly and validly authenticated and delivered by Regions Bank, as trustee, against payment therefor, all in accordance with the terms of the CHS Subordinated Debt Indenture, the CHS Subordinated Debt Securities will constitute legally valid and binding obligations of CHS, except as the enforcement thereof may be limited by the Enforceability Exceptions and except as any right to indemnification or contribution thereunder may be limited by any applicable public policy consideration.
CHS/Community Health Systems, Inc.
May 6, 2015
Page 5
9. Assuming that (a) the Parent Senior Debt Indenture will have been duly and validly authorized, executed and delivered by all parties thereto (including, but not limited to, the Parent), (b) one or more supplemental indentures, to the extent necessary, will have been duly and validly authorized, executed and delivered by all parties thereto (including, but not limited to, the Parent, CHS and the Guarantors), (c) the Parent Senior Debt Securities will have been duly and validly authorized by the Parent for issuance by the Parent pursuant to the Parent Senior Debt Indenture and duly and validly executed by the Parent and duly and validly authenticated and delivered by Regions Bank, as trustee, against payment therefor, all in accordance with the terms of the Parent Senior Debt Indenture and (d) the Parent Senior Debt Notations of Note Guarantee will have been duly and validly authorized and executed by CHS and the Guarantors, the Parent Senior Debt Guarantees will constitute legally valid and binding obligations of CHS and the Guarantors, except as the enforcement thereof may be limited by the Enforceability Exceptions and except as any right to indemnification or contribution thereunder may be limited by any applicable public policy consideration.
10. Assuming that (a) the Parent Subordinated Debt Indenture will have been duly and validly authorized, executed and delivered by all parties thereto (including, but not limited to, the Parent), (b) one or more supplemental indentures, to the extent necessary, will have been duly and validly authorized, executed and delivered by all parties thereto (including, but not limited to, the Parent, CHS and the Guarantors), (c) the Parent Subordinated Debt Securities will have been duly and validly authorized by the Parent for issuance by the Parent pursuant to the Parent Subordinated Debt Indenture and duly and validly executed by the Parent and duly and validly authenticated and delivered by Regions Bank, as trustee, against payment therefor, all in accordance with the terms of the Parent Subordinated Debt Indenture and (d) the Parent Subordinated Debt Notations of Note Guarantee will have been duly and validly authorized and executed by CHS and the Guarantors, the Parent Subordinated Debt Guarantees will constitute legally valid and binding obligations of CHS and the Guarantors, except as the enforcement thereof may be limited by the Enforceability Exceptions and except as any right to indemnification or contribution thereunder may be limited by any applicable public policy consideration.
11. Assuming that (a) the CHS Senior Debt Indenture will have been duly and validly authorized, executed and delivered by all parties thereto (including, but not limited to, CHS), (b) one or more supplemental indentures, to the extent necessary, will have been duly and validly authorized, executed and delivered by all parties thereto (including, but not limited to, CHS, the Parent and the Guarantors), (c) the CHS Senior Debt Securities will have been duly and validly authorized by CHS for issuance by CHS pursuant to the CHS Senior Debt Indenture and duly and validly executed by CHS and duly and validly authenticated and delivered by Regions Bank, as trustee, against payment therefor, all in accordance with the terms of the CHS Senior Debt Indenture and (d) the CHS Senior Debt Notations of Note Guarantee will have been duly and validly authorized and executed by the Parent and the Guarantors, the CHS Senior Debt Guarantees will constitute legally valid and binding obligations of the Parent and the Guarantors, except as the enforcement thereof may be limited by the Enforceability Exceptions and except as any right to indemnification or contribution thereunder may be limited by any applicable public policy consideration.
CHS/Community Health Systems, Inc.
May 6, 2015
Page 6
12. Assuming that (a) the CHS Subordinated Debt Indenture will have been duly and validly authorized, executed and delivered by all parties thereto (including, but not limited to, CHS), (b) one or more supplemental indentures, to the extent necessary, will have been duly and validly authorized, executed and delivered by all parties thereto (including, but not limited to, CHS, the Parent and the Guarantors), (c) the CHS Subordinated Debt Securities will have been duly and validly authorized by CHS for issuance by CHS pursuant to the CHS Subordinated Debt Indenture and duly and validly executed by CHS and duly and validly authenticated and delivered by Regions Bank, as trustee, against payment therefor, all in accordance with the terms of the CHS Subordinated Debt Indenture and (d) the CHS Subordinated Debt Notations of Note Guarantee will have been duly and validly authorized and executed by the Parent and the Guarantors, the CHS Subordinated Debt Guarantees will constitute legally valid and binding obligations of the Parent and the Guarantors, except as the enforcement thereof may be limited by the Enforceability Exceptions and except as any right to indemnification or contribution thereunder may be limited by any applicable public policy consideration.
We consent to the filing of this letter with the Commission as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act and to the use of our name therein and in the related Prospectus under the caption “Legal Matters.” In giving such consent, we do not admit that we are in the category of persons whose consent to such filing and use is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
| Very truly yours, |
| HODGSON RUSS LLP |
| /s/ Hodgson Russ LLP |
Exhibit A
Guarantors
| Entity |
Jurisdiction | |
| Abilene Hospital, LLC |
DE | |
| Abilene Merger, LLC |
DE | |
| Affinity Health Systems, LLC |
DE | |
| Affinity Hospital, LLC |
DE | |
| Amory HMA, LLC |
MS | |
| Anna Hospital Corporation |
IL | |
| Anniston HMA, LLC |
AL | |
| Bartow HMA, LLC |
FL | |
| Berwick Hospital Company, LLC |
DE | |
| Big Bend Hospital Corporation |
TX | |
| Big Spring Hospital Corporation |
TX | |
| Biloxi H.M.A., LLC |
MS | |
| Birmingham Holdings II, LLC |
DE | |
| Birmingham Holdings, LLC |
DE | |
| Blackwell HMA, LLC |
OK | |
| Blue Island Hospital Company, LLC |
DE | |
| Blue Island Illinois Holdings, LLC |
DE | |
| Bluefield Holdings, LLC |
DE | |
| Bluefield Hospital Company, LLC |
DE | |
| Bluffton Health System LLC |
DE | |
| Brandon HMA, LLC |
MS | |
| Brevard HMA Holdings, LLC |
FL | |
| Brevard HMA Hospitals, LLC |
FL | |
| Brownwood Hospital, L.P. |
DE | |
| Brownwood Medical Center, LLC |
DE | |
| Bullhead City Hospital Corporation |
AZ | |
| Bullhead City Hospital Investment Corporation |
DE | |
| Campbell County HMA, LLC |
TN | |
| Carlisle HMA, LLC |
PA | |
| Carlsbad Medical Center, LLC |
DE | |
| Carolinas JV Holdings General, LLC |
DE | |
| Carolinas JV Holdings, L.P. |
DE | |
| Central Florida HMA Holdings, LLC |
DE | |
| Central States HMA Holdings, LLC |
DE | |
| Centre Hospital Corporation |
AL | |
| Chester HMA, LLC |
SC |
| Entity |
Jurisdiction | |
| CHHS Holdings, LLC |
DE | |
| CHS Kentucky Holdings, LLC |
DE | |
| CHS Pennsylvania Holdings, LLC |
DE | |
| CHS Virginia Holdings, LLC |
DE | |
| CHS Washington Holdings, LLC |
DE | |
| Citrus HMA, LLC |
FL | |
| Clarksdale HMA, LLC |
MS | |
| Clarksville Holdings II, LLC |
DE | |
| Clarksville Holdings, LLC |
DE | |
| Cleveland Hospital Corporation |
TN | |
| Cleveland Tennessee Hospital Company, LLC |
DE | |
| Clinton HMA, LLC |
OK | |
| Clinton Hospital Corporation |
PA | |
| Coatesville Hospital Corporation |
PA | |
| Cocke County HMA, LLC |
TN | |
| College Station Hospital, L.P. |
DE | |
| College Station Medical Center, LLC |
DE | |
| College Station Merger, LLC |
DE | |
| Community GP Corp. |
DE | |
| Community Health Investment Company, LLC |
DE | |
| Community LP Corp. |
DE | |
| CP Hospital GP, LLC |
DE | |
| CPLP, LLC |
DE | |
| Crestwood Hospital, LLC |
DE | |
| Crestwood Hospital, LP, LLC |
DE | |
| CSMC, LLC |
DE | |
| CSRA Holdings, LLC |
DE | |
| Deaconess Holdings, LLC |
DE | |
| Deaconess Hospital Holdings, LLC |
DE | |
| Deming Hospital Corporation |
NM | |
| Desert Hospital Holdings, LLC |
DE | |
| Detar Hospital, LLC |
DE | |
| DHFW Holdings, LLC |
DE | |
| DHSC, LLC |
DE | |
| Dukes Health System, LLC |
DE | |
| Dyersburg Hospital Corporation |
TN | |
| Emporia Hospital Corporation |
VA | |
| Evanston Hospital Corporation |
WY | |
| Fallbrook Hospital Corporation |
DE | |
| Florida HMA Holdings, LLC |
DE |
| Entity |
Jurisdiction | |
| Foley Hospital Corporation |
AL | |
| Forrest City Arkansas Hospital Company, LLC |
AR | |
| Forrest City Hospital Corporation |
AR | |
| Fort Payne Hospital Corporation |
AL | |
| Fort Smith HMA, LLC |
AR | |
| Frankfort Health Partner, Inc. |
IN | |
| Franklin Hospital Corporation |
VA | |
| Gadsden Regional Medical Center, LLC |
DE | |
| Galesburg Hospital Corporation |
IL | |
| Granbury Hospital Corporation |
TX | |
| Granite City Hospital Corporation |
IL | |
| Granite City Illinois Hospital Company, LLC |
IL | |
| Greenville Hospital Corporation |
AL | |
| GRMC Holdings, LLC |
DE | |
| Hallmark Healthcare Company, LLC |
DE | |
| Hamlet H.M.A., LLC |
NC | |
| Health Management Associates, Inc. |
DE | |
| Health Management Associates, LP |
DE | |
| Health Management General Partner I, LLC |
DE | |
| Health Management General Partner, LLC |
DE | |
| HMA Fentress County General Hospital, LLC |
TN | |
| HMA Hospitals Holdings, LP |
DE | |
| HMA Santa Rosa Medical Center, LLC |
FL | |
| HMA Services GP, LLC |
DE | |
| Hobbs Medco, LLC |
DE | |
| Hospital Management Associates, LLC |
FL | |
| Hospital Management Services of Florida, LP |
FL | |
| Hospital of Barstow, Inc. |
DE | |
| Hospital of Fulton, Inc. |
KY | |
| Hospital of Louisa, Inc. |
KY | |
| Hospital of Morristown, Inc. |
TN | |
| Jackson HMA, LLC |
MS | |
| Jackson Hospital Corporation (KY) |
KY | |
| Jackson Hospital Corporation (TN) |
TN | |
| Jefferson County HMA, LLC |
TN | |
| Jourdanton Hospital Corporation |
TX | |
| Kay County Hospital Corporation |
OK | |
| Kay County Oklahoma Hospital Company, LLC |
OK | |
| Kennett HMA, LLC |
MO | |
| Key West HMA, LLC |
FL |
| Entity |
Jurisdiction | |
| Kirksville Hospital Company, LLC |
DE | |
| Knoxville HMA Holdings, LLC |
TN | |
| Lakeway Hospital Corporation |
TN | |
| Lancaster Hospital Corporation |
DE | |
| Las Cruces Medical Center, LLC |
DE | |
| Lea Regional Hospital, LLC |
DE | |
| Lehigh HMA, LLC |
FL | |
| Lexington Hospital Corporation |
TN | |
| Longview Clinic Operations Company, LLC |
DE | |
| Longview Medical Center, L.P. |
DE | |
| Longview Merger, LLC |
DE | |
| LRH, LLC |
DE | |
| Lutheran Health Network of Indiana, LLC |
DE | |
| Madison HMA, LLC |
MS | |
| Marion Hospital Corporation |
IL | |
| Marshall County HMA, LLC |
OK | |
| Martin Hospital Corporation |
TN | |
| Massillon Community Health System LLC |
DE | |
| Massillon Health System LLC |
DE | |
| Massillon Holdings, LLC |
DE | |
| Mayes County HMA, LLC |
OK | |
| McKenzie Tennessee Hospital Company, LLC |
DE | |
| McNairy Hospital Corporation |
TN | |
| MCSA, L.L.C. |
AR | |
| Medical Center of Brownwood, LLC |
DE | |
| Melbourne HMA, LLC |
FL | |
| Merger Legacy Holdings, LLC |
DE | |
| Mesquite HMA General, LLC |
DE | |
| Metro Knoxville HMA, LLC |
TN | |
| Mississippi HMA Holdings I, LLC |
DE | |
| Mississippi HMA Holdings II, LLC |
DE | |
| MMC of Nevada, LLC |
DE | |
| Moberly Hospital Company, LLC |
DE | |
| Monroe HMA, LLC |
GA | |
| MWMC Holdings, LLC |
DE | |
| Naples HMA, LLC |
FL | |
| Natchez Hospital Company, LLC |
DE | |
| National Healthcare of Leesville, Inc. |
DE | |
| National Healthcare of Mt. Vernon, Inc. (f/k/a Mt. Vernon, Inc.) |
DE | |
| Navarro Hospital, L.P. |
DE |
| Entity |
Jurisdiction | |
| Navarro Regional, LLC |
DE | |
| NC-DSH, LLC |
NV | |
| Northampton Hospital Company, LLC |
DE | |
| Northwest Arkansas Hospitals, LLC |
DE | |
| Northwest Hospital, LLC |
DE | |
| NOV Holdings, LLC |
DE | |
| NRH, LLC |
DE | |
| Oak Hill Hospital Corporation |
WV | |
| Oro Valley Hospital, LLC |
DE | |
| Palmer-Wasilla Health System, LLC |
DE | |
| Payson Hospital Corporation |
AZ | |
| Pennsylvania Hospital Company, LLC |
DE | |
| Phillips Hospital Corporation |
AR | |
| Phoenixville Hospital Company, LLC |
DE | |
| Poplar Bluff Regional Medical Center, LLC |
MO | |
| Port Charlotte HMA, LLC |
FL | |
| Pottstown Hospital Company, LLC |
DE | |
| Punta Gorda HMA, LLC |
FL | |
| QHG Georgia Holdings II, LLC |
DE | |
| QHG Georgia Holdings, Inc. |
GA | |
| QHG Georgia, LP |
GA | |
| QHG of Bluffton Company, LLC |
DE | |
| QHG of Clinton County, Inc. |
IN | |
| QHG of Enterprise, Inc. |
AL | |
| QHG of Forrest County, Inc. |
MS | |
| QHG of Fort Wayne Company, LLC |
DE | |
| QHG of Hattiesburg, Inc. |
MS | |
| QHG of Massillon, Inc. |
OH | |
| QHG of South Carolina, Inc. |
SC | |
| QHG of Spartanburg, Inc. |
SC | |
| QHG of Springdale, Inc. |
AR | |
| Quorum Health Resources, LLC |
DE | |
| Red Bud Hospital Corporation |
IL | |
| Red Bud Illinois Hospital Company, LLC |
IL | |
| Regional Hospital of Longview, LLC |
DE | |
| River Oaks Hospital, LLC |
MS | |
| River Region Medical Corporation |
MS | |
| Rockledge HMA, LLC |
FL | |
| ROH, LLC |
MS | |
| Roswell Hospital Corporation |
NM |
| Entity |
Jurisdiction | |
| Ruston Hospital Corporation |
DE | |
| Ruston Louisiana Hospital Company, LLC |
DE | |
| SACMC, LLC |
DE | |
| Salem Hospital Corporation |
NJ | |
| San Angelo Community Medical Center, LLC |
DE | |
| San Angelo Medical, LLC |
DE | |
| San Miguel Hospital Corporation |
NM | |
| Scranton Holdings, LLC |
DE | |
| Scranton Hospital Company, LLC |
DE | |
| Scranton Quincy Holdings, LLC |
DE | |
| Scranton Quincy Hospital Company, LLC |
DE | |
| Sebastian Hospital, LLC |
FL | |
| Sebring Hospital Management Associates, LLC |
FL | |
| Seminole HMA, LLC |
OK | |
| Sharon Pennsylvania Holdings, LLC |
DE | |
| Sharon Pennsylvania Hospital Company, LLC |
DE | |
| Shelbyville Hospital Corporation |
TN | |
| Siloam Springs Arkansas Hospital Company, LLC |
DE | |
| Siloam Springs Holdings, LLC |
DE | |
| Southeast HMA Holdings, LLC |
DE | |
| Southern Texas Medical Center, LLC |
DE | |
| Southwest Florida HMA Holdings, LLC |
DE | |
| Spokane Valley Washington Hospital Company, LLC |
DE | |
| Spokane Washington Hospital Company, LLC |
DE | |
| Statesville HMA, LLC |
NC | |
| Tennessee HMA Holdings, LP |
DE | |
| Tennyson Holdings, LLC |
DE | |
| Tomball Texas Holdings, LLC |
DE | |
| Tomball Texas Hospital Company, LLC |
DE | |
| Tooele Hospital Corporation |
UT | |
| Triad Healthcare Corporation |
DE | |
| Triad Holdings III, LLC |
DE | |
| Triad Holdings IV, LLC |
DE | |
| Triad Holdings V, LLC |
DE | |
| Triad Nevada Holdings, LLC |
DE | |
| Triad of Alabama, LLC |
DE | |
| Triad of Oregon, LLC |
DE | |
| Triad-ARMC, LLC |
DE | |
| Triad-El Dorado, Inc. |
AR | |
| Triad-Navarro Regional Hospital Subsidiary, LLC |
DE |
| Entity |
Jurisdiction | |
| Tunkhannock Hospital Company, LLC |
DE | |
| Van Buren H.M.A., LLC |
AR | |
| Venice HMA, LLC |
FL | |
| VHC Medical, LLC |
DE | |
| Vicksburg Healthcare, LLC |
DE | |
| Victoria Hospital, LLC |
DE | |
| Victoria of Texas, L.P. |
DE | |
| Virginia Hospital Company, LLC |
VA | |
| Warren Ohio Hospital Company, LLC |
DE | |
| Warren Ohio Rehab Hospital Company, LLC |
DE | |
| Watsonville Hospital Corporation |
DE | |
| Waukegan Hospital Corporation |
IL | |
| Waukegan Illinois Hospital Company, LLC |
IL | |
| Weatherford Hospital Corporation |
TX | |
| Weatherford Texas Hospital Company, LLC |
TX | |
| Webb Hospital Corporation |
DE | |
| Webb Hospital Holdings, LLC |
DE | |
| Wesley Health System LLC |
DE | |
| West Grove Hospital Company, LLC |
DE | |
| WHMC, LLC |
DE | |
| Wilkes-Barre Behavioral Hospital Company, LLC |
DE | |
| Wilkes-Barre Holdings, LLC |
DE | |
| Wilkes-Barre Hospital Company, LLC |
DE | |
| Williamston Hospital Corporation |
NC | |
| Winder HMA, LLC |
GA | |
| Women & Children’s Hospital, LLC |
DE | |
| Woodland Heights Medical Center, LLC |
DE | |
| Woodward Health System, LLC |
DE | |
| Yakima HMA, LLC |
WA | |
| York Pennsylvania Holdings, LLC |
DE | |
| York Pennsylvania Hospital Company, LLC |
DE | |
| Youngstown Ohio Hospital Company, LLC |
DE |
Exhibit 5.2
BRADLEY ARANT BOULT CUMMINGS LLP
May 6, 2015
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
4000 Meridian Boulevard
Franklin, Tennessee 37067
Ladies and Gentlemen:
We have acted as special Alabama, Mississippi, and North Carolina counsel to the entities listed on Schedule I (collectively, the “AL/MS/NC Subsidiary Guarantors”), in connection with the AL/MS/NC Subsidiary Guarantors’ proposed guarantees (collectively, the “Debt Guarantees”) of debt securities (collectively, the “Debt Securities”) to be issued from time to time by Community Health Systems, Inc., a Delaware corporation (“Parent”), or CHS/Community Health Systems, Inc., a Delaware corporation (“CHS/CHS” and, together with Parent, the “Issuers”), pursuant to forms of senior and subordinated notes indentures (collectively, the “Indentures”) that were filed with the Securities and Exchange Commission (the “Commission”) as exhibits to the Issuers’ registration statement on Form S-3 (the “Registration Statement”) on or about May 6, 2015.
In rendering the opinions set forth herein, we have examined and relied on originals or copies (certified or otherwise identified to our satisfaction) of the Registration Statement, the Indentures, and the records and documents of the AL/MS/NC Subsidiary Guarantors (as certified by the AL/MS/NC Subsidiary Guarantors to be true and correct) and the certificates of public officials listed on Schedule II attached hereto (the “Entity Documents”). We have reviewed no other documents in connection with the preparation or issuance of this opinion.
In rendering the opinions set forth below, we have relied with respect to factual matters, upon the representations, warranties and other information in the Registration Statement, the Indentures, and the Entity Documents. Further, in rendering the opinions set forth below, we have, with your consent, relied only upon examination of the documents described above and have made no independent verification or investigation of the factual matters set forth herein. We did not participate in the negotiation or preparation of the Indentures and have not advised the Issuers or the AL/MS/NC Subsidiary Guarantors with respect to such documents or transactions contemplated thereby.
In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, facsimile, conformed or photostatic copies and the authenticity of the originals of such copies. As to all questions of fact material to this opinion letter that have not been independently established, we have relied upon certificates or comparable documents of officers and representatives of the Issuers and the AL/MS/NC Subsidiary Guarantors and have assumed that such matters remain true and correct through the date hereof.
Based on the foregoing, and subject to the assumptions, exceptions, limitations and qualifications set forth herein, we are of the opinion that:
1. Based solely on the respective Certificates of Existence (as defined on Schedule II) for such entities, each of the AL/MS/NC Subsidiary Guarantors is validly existing under the laws of the State of Alabama, Mississippi, or North Carolina, as applicable.
2. Each of the AL/MS/NC Subsidiary Guarantors has the requisite corporate or limited liability company, as applicable, power to authorize the execution, delivery, and performance by such AL/MS/NC Subsidiary Guarantor of a Debt Guarantee as contemplated by the Indentures.
3. The Debt Guarantees, upon being subsequently (i) duly authorized by all necessary corporate or limited liability company, as applicable, action, (ii) executed by an authorized signatory, and (iii) delivered, will be validly authorized, executed, and delivered for corporate or limited liability company, as applicable, law purposes by each AL/MS/NC Subsidiary Guarantor .
Unless explicitly addressed herein, this opinion does not address any of the following legal issues, and we specifically express no opinion with respect thereto:
(a) State securities laws and regulations (including all “Blue Sky” or legal investment laws), and state laws and regulations relating to commodity (and other) futures and indices and other similar instruments.
(b) State pension and employee benefit laws and regulations.
(c) State antitrust and unfair competition laws and regulations.
(d) Compliance with state fiduciary duty requirements or the consequences of any breach thereof.
(e) State environmental laws and regulations.
(f) State land use, zoning, building, construction, and subdivision laws and regulations.
(g) Any laws, rules, or regulations of any county, municipality, or similar political subdivision of any state or the agencies or instrumentalities thereof.
(h) State tax laws and regulations.
(i) State patent, copyright, trademark, and other state intellectual property laws and regulations.
(j) State racketeering laws and regulations.
(k) State health and safety laws and regulations.
(l) State labor laws and regulations.
(m) State laws, regulations and policies concerning (i) national and local emergency and terrorism, (ii) possible judicial deference to acts of sovereign states, (iii) corrupt practices, and (iv) criminal and civil forfeiture laws.
(n) State insurance laws and regulations.
(o) Other state statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes).
(p) State banking and financial institution and financial services laws.
(q) State laws and regulations regarding usury, interest rates, loan fees, and other loan, lender, or transaction charges or fees.
(r) Any state anti-kickback or anti-referral laws, and regulations promulgated thereunder.
(s) Laws or regulations relating to swaps and other interest rate hedging arrangements or guarantees of obligations arising thereunder.
Further, the opinions set forth above are subject to the following qualifications and limitations:
(a) We express no opinion regarding (i) the effect of bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting the rights of creditors generally, and (ii) restrictions relating to capital adequacy that may be applicable to the AL/MS/NC Subsidiary Guarantors to the extent the transactions or any Debt Guarantee may be deemed a dividend or distribution.
(b) Under Alabama, Mississippi, and North Carolina corporate and limited liability company law, our opinions as to the authority of each AL/MS/NC Subsidiary Guarantor to enter into the Debt Guarantees and the transactions described in the Registration Statement and the Indentures are subject to the assumptions that (i) no AL/MS/NC Subsidiary Guarantor is insolvent or is or will be rendered insolvent by the execution of any Debt Guarantee or any document contemplated by the Registration Statement and the Indentures or the entering into the transactions described by the Registration Statement and the Indentures, because certain aspects of the transactions may be regarded as distributions under applicable corporate and limited liability company laws and distributions may not be made by corporations or limited liability companies that are insolvent or are rendered insolvent thereby, and (ii) the transactions are “fair” to each AL/MS/NC Subsidiary Guarantor within the meaning of applicable corporate and limited liability company laws, which may render voidable certain transactions among entities with interlocking directors, managers, shareholders, members, or officers that are otherwise “interested” in the transaction unless the transaction is (y) approved by certain parties that are not available in connection with the transactions or (z) fair to the corporation or limited liability company.
(c) We note that the Indentures are governed by the laws of the State of New York. We express no opinion regarding the enforceability of any provisions of the Registration Statement, the Indentures, any Debt Guarantee, or any other document contemplated by the Registration Statement and the Indentures or the sufficiency of such documents to create or perfect a security interest or enforceable liens on any property or collateral described therein. Further, we have assumed that the Registration Statement, the Indentures, any Debt Guarantee, or any other document contemplated by the Registration Statement and the Indentures, and each provision thereof, are and will be legal, valid and binding obligations of all parties thereto, enforceable in accordance with their terms, under all applicable laws.
(d) The opinions set forth in opinion paragraph 3 hereof are further subject to the following assumptions, qualifications, limitations and exceptions being true and correct at or prior to the time of the delivery of any Debt Guarantee:
(i) the Debt Guarantee will be issued and sold as contemplated in the Registration Statement and the prospectus supplement relating thereto;
(ii) the execution, delivery and performance by the AL/MS/NC Subsidiary Guarantor of a Supplemental Indenture creating the form and terms of the Debt Guarantee (and, if relevant, the execution and delivery of the Debt Guarantee or any notation of Debt Guarantee) and the performance by the AL/MS/NC Subsidiary Guarantor of the Indenture, the Supplemental Indenture and the Debt Guarantee will not (A) result in a default under or breach of any agreement or instrument binding upon the AL/MS/NC Subsidiary Guarantor, or any order, judgment or decree of any court or governmental authority applicable to the AL/MS/NC Subsidiary Guarantor, or (B) require any authorization, approval or other action by, or notice to or filing with, any court or governmental authority (other than such authorizations, approvals, actions, notices or filings which shall have been obtained or made, as the case may be, and which shall be in full force and effect);
(iii) the authorization by the AL/MS/NC Subsidiary Guarantor of the transactions described above and the instruments, agreements and other documents entered into or to be entered into by the AL/MS/NC Subsidiary Guarantor , as described above will not have been superseded, modified or rescinded, and there will not have occurred any change in law affecting the validity, binding character or enforceability of any such instruments, agreements or other documents;
(iv) the Indenture will not have been modified or amended (other than by a supplemental indenture or officers’ certificate establishing the form and terms of the Debt Securities of any series and, if applicable, creating the form and terms of any related Debt Guarantee); and
(v) the Entity Documents of the AL/MS/NC Subsidiary Guarantor, as currently in effect, will not have been modified or amended and will be in full force and effect, and there will be no change in applicable law relevant to this opinion letter, including applicable law governing the guarantying of indebtedness by any AL/MS/NC Subsidiary Guarantor, prior to the AL/MS/NC Subsidiary Guarantor entering into the applicable Debt Guarantee.
We are admitted to practice law in the States of Alabama, Mississippi, and North Carolina. The opinions expressed herein are limited in all respects to the law in the States of Alabama, Mississippi, and North Carolina as in effect on the date hereof. We express no opinion as to the laws of any other jurisdiction, including federal law.
This opinion is limited to the matters expressly set forth above, and no opinion is implied or may be inferred beyond the matters expressly so stated. The opinions expressed herein are given as of the date hereof, and we assume no obligation to advise you of any future changes in the facts or law relating to the matters covered by this opinion.
We hereby consent to any reliance on this opinion letter and the opinions provided herein by the law firm Hodgson Russ LLP in connection with the legal opinion provided by that law firm that is included as an exhibit to the Registration Statement. Additionally, we hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the prospectus contained in the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
| Very truly yours, |
| /s/ BRADLEY ARANT BOULT CUMMINGS LLP |
Schedule I
AL/MS/NC Subsidiary Guarantors
1. Anniston HMA, LLC, an Alabama limited liability company
2. Centre Hospital Corporation, an Alabama corporation
3. Foley Hospital Corporation, an Alabama corporation
4. Fort Payne Hospital Corporation, an Alabama corporation
5. Greenville Hospital Corporation, an Alabama corporation
6. QHG of Enterprise, Inc., an Alabama corporation
7. Amory HMA, LLC, a Mississippi limited liability company
8. Biloxi H.M.A., LLC, a Mississippi limited liability company
9. Brandon HMA, LLC, a Mississippi limited liability company
10. Clarksdale HMA, LLC, a Mississippi limited liability company
11. Jackson HMA, LLC, a Mississippi limited liability company
12. Madison HMA, LLC, a Mississippi limited liability company
13. QHG of Forrest County, Inc., a Mississippi corporation
14. QHG of Hattiesburg, Inc., a Mississippi corporation
15. River Oaks Hospital, LLC, a Mississippi limited liability company
16. River Region Medical Corporation, a Mississippi corporation
17. ROH, LLC, a Mississippi limited liability company
18. Hamlet H.M.A., LLC, a North Carolina limited liability company
19. Statesville HMA, LLC, a North Carolina limited liability company
20. Williamston Hospital Corporation, a North Carolina corporation
Schedule II
Entity Documents
1. The certificate with respect to various factual matters signed by an officer of each of the AL/MS/NC Subsidiary Guarantors and dated the date of this opinion (the “Officers’ Certificate”).
2. Certificates of Existence for the following entities issued by the Alabama Secretary of State on the respective dates listed below (the “Alabama Certificates of Existence”):
| Anniston HMA, LLC | April 24, 2015 | |
| Centre Hospital Corporation | April 24, 2015 | |
| Foley Hospital Corporation | April 24, 2015 | |
| Fort Payne Hospital Corporation | April 24, 2015 | |
| Greenville Hospital Corporation | April 24, 2015 | |
| QHG of Enterprise, Inc. | April 24, 2015 |
3. Certificates of Good Standing for the following entities issued by the Alabama Department of Revenue on the respective dates listed below (the “Alabama Certificates of Good Standing”):
| Anniston HMA, LLC | April 28, 2015 | |
| Centre Hospital Corporation | April 28, 2015 | |
| Foley Hospital Corporation | April 28, 2015 | |
| Fort Payne Hospital Corporation | April 28, 2015 | |
| Greenville Hospital Corporation | April 28, 2015 | |
| QHG of Enterprise, Inc. | April 28, 2015 |
4. Certificates of Good Standing for the following entities issued by the Mississippi Secretary of State on the respective dates listed below (the “Mississippi Certificates of Good Standing”):
| Amory HMA, LLC | April 24, 2015 | |
| Biloxi H.M.A., LLC | April 24, 2015 | |
| Brandon HMA, LLC | April 24, 2015 | |
| Clarksdale HMA, LLC | April 24, 2015 | |
| Jackson HMA, LLC | April 24, 2015 | |
| Madison HMA, LLC | April 24, 2015 | |
| QHG of Forrest County, Inc. | April 24, 2015 | |
| QHG of Hattiesburg, Inc. | April 24, 2015 | |
| River Oaks Hospital, LLC | April 24, 2015 | |
| River Region Medical Corporation | April 24, 2015 | |
| ROH, LLC | April 24, 2015 |
5. Certificates of Existence for the following entities issued by the North Carolina Secretary of State on the respective dates listed below (the “North Carolina Certificates of Existence,” and together with the Alabama Certificates of Existence, the Alabama Certificates of Good Standing, and the Mississippi Certificates of Good Standing, the “Certificates of Existence”):
| Hamlet H.M.A., LLC | April 24, 2015 | |
| Statesville HMA, LLC | April 24, 2015 | |
| Williamston Hospital Corporation | April 24, 2015 |
6. Articles of Incorporation, Articles of Organization, and applicable amendment documents for each of the AL/MS/NC Subsidiary Guarantors, as certified by an officer of each of the AL/MS/NC Subsidiary Guarantors as in effect on the date hereof.
7. Bylaws, operating agreements, and applicable amendment documents for each of the AL/MS/NC Subsidiary Guarantors, as certified by an officer of each of the AL/MS/NC Subsidiary Guarantors as in effect on the date hereof.
8. Resolutions for each of the AL/MS/NC Subsidiary Guarantors adopted by the applicable governing body of each of the AL/MS/NC Subsidiary Guarantors, as certified by an officer of each of the AL/MS/NC Subsidiary Guarantors as in effect on the date hereof.
[LETTERHEAD OF KUTAK ROCK LLP]
Exhibit 5.3
May 6, 2015
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
4000 Meridian Boulevard
Franklin, Tennessee 37067
| Re: | Arkansas Guarantors – certain debt securities to be issued by Community Health Systems, Inc. or CHS/Community Health Systems, Inc. pursuant to S-3 registration statement |
Ladies and Gentlemen:
We have acted as Arkansas (the “State”) special counsel to the entities identified on Schedule I attached (collectively, the “Arkansas Guarantors”), each organized and existing under the laws of the State of Arkansas, in connection with the Arkansas Guarantors’ proposed guarantees (collectively, the “Debt Guarantees”) of debt securities (collectively, the “Debt Securities”) to be issued from time to time by Community Health Systems, Inc., a Delaware corporation (“Parent”), or CHS/Community Health Systems, Inc., a Delaware corporation (“CHS/CHS” and, together with Parent, the “Issuers”), pursuant to forms of senior and subordinated notes indentures (collectively, the “Indentures”) that were filed with the Securities and Exchange Commission (the “Commission”) as exhibits to the Issuers’ registration statement on Form S-3 (the “Registration Statement”) on or about the date hereof.
As used herein, “State Law” means the laws of the State of Arkansas that an Arkansas lawyer exercising customary professional diligence would reasonably be expected to recognize as being applicable to the Arkansas Guarantors; provided that “State Law” does not include any statute, rule, regulation, ordinance, order or other promulgation of any regional or local governmental body or as to any related judicial or administrative decision. We have not examined, and we do not opine, as to the law of any other jurisdiction, whether applicable directly or through State Law. We are not rendering any opinion as to the effect or applicability of any statute, rule, regulation, ordinance, decree or decisional law relating to antitrust, banking, land use, environmental, pension, employee benefit, tax, fraudulent conveyance or transfer, usury, laws governing the legality of investments for regulated entities, regulations T, U or X of the Board of Governors of the Federal Reserve System or any laws, rules, regulations, or administrative decisions of any political subdivision of any state including any county, city, municipality, town or special subdivision, or any applicable telecommunications or other trade-specific regulatory laws. Furthermore, we express no opinion with respect to: compliance with the Securities Act of 1933 (“Securities Act”), antifraud laws, or any other law, rules or regulations relating to securities or the offer and sale thereof; compliance with fiduciary duties by the Issuers or Arkansas Guarantors’ boards of directors or other governing bodies; compliance with safe harbors for disinterested board of director or other governing body approvals; compliance with state securities or blue sky laws; and compliance with the Investment Company Act of 1940 or the Trust Indenture Act of 1939. Our opinion herein is limited to the matters set forth herein in effect on the date hereof. Our opinion herein is limited to the effect on the subject transaction of State Law as in effect on the date hereof. We disclaim any obligation to advise you of any change in law or subsequent developments in law or changes in facts or circumstances which might affect any matters or opinions set forth herein. We assume no responsibility regarding the applicability to such transactions, or the effect thereon, of the laws of any other jurisdiction.
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
Page 2
In rendering our opinions herein, with your permission we have relied with respect to factual matters, without any independent investigation or verification, upon the Officers’ Certificate (defined below), the certificates of public officials referred to below, and the representations, warranties, and factual statements set forth in the Transaction Documents (defined below). In addition thereto, we have reviewed and relied upon the following:
(i) the organizational documents and instruments of the Arkansas Guarantors described on Exhibit A hereto (the “Organizational Documents”);
(ii) the certificate with respect to various factual matters and corporate documents signed by an officer of each of the Arkansas Guarantors and dated the date of this opinion and the exhibits/attachments thereto (collectively, the “Officers’ Certificate”);
(iii) the Registration Statement; and
(iv) the forms of Indentures attached as Exhibits to the Registration Statement.
Items (iii) and (iv) above are collectively referenced herein as the “Transaction Documents”. We did not participate in the negotiation or preparation of the Indentures and have not advised the Issuers or the Arkansas Guarantors with respect to such documents or transactions contemplated thereby.
Our opinions herein are subject to the following assumptions, qualifications, limitations, and exclusions in addition to any and all others set forth herein:
(a) In reaching the opinion set forth below, we have assumed, without any investigation, inquiry or review: (i) the genuineness of all signatures, (ii) the authenticity and completeness of all documents submitted to us as originals, (iii) the legal capacity of natural persons executing such documents, (iv) the authenticity and conformity to original documents of documents submitted to us as certified, photostatic, facsimile or electronically transmitted copies, (v) the Transaction Documents comply in all respects with the transaction described in the corporate minutes and resolutions described in the Officer’s Certificate and accurately describe and contain the mutual understanding of the parties, and that there are no written or oral agreements or courses of dealing, conduct, or performance that modify, amend, vary, or revoke, or purport to modify, amend, vary or revoke, all or any portion of the Transaction Documents, and that there has been no waiver of any provision of the Transaction Documents, (vi) the Indentures will be duly delivered for value and for the consideration recited therein or contemplated thereby, (vii) no fraud, duress or mutual mistake of fact exists with relation to the execution, acknowledgement, delivery, performance, recordation or filing of any of the Transaction Documents and any documents related thereto; and (viii) all Transaction Documents have been or will be duly filed, recorded, executed, and delivered, as applicable and to extent necessary for the validity and effectiveness thereof. We have also relied, as to all questions of fact material to this opinion letter, upon the Transaction Documents. We have assumed the accuracy of and have not conducted any independent investigation or review of, or attempted to verify independently, such factual matters and the accuracy or completeness of any representation, warranty, data or any other information, whether written or oral, that may have been made by or on behalf of the parties to any of Transaction Documents, including but not limited to the Officer’s Certificate.
(b) To the extent it may be relevant to the opinions expressed herein, we have assumed that the parties to the Transaction Documents, other than the Arkansas Guarantors, have the requisite organizational power and authority to enter into, perform, and file such documents (as applicable) and that such documents have been duly authorized, executed and delivered by, and constitute legal, valid and binding obligations of, such other parties (as applicable).
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
Page 3
Subject to the assumptions, exceptions and limitations hereinabove and hereinafter stated, and based upon State Law, it is our opinion that:
(1) Based solely on the certificates of good standing identified on Exhibit A, each Arkansas Guarantor is validly existing and in good standing under State Law.
(2) Each Arkansas Guarantor has the requisite corporate (with respect to those Arkansas Guarantors which are corporations) or limited liability company (with respect to those Arkansas Guarantors which are limited liability companies) power to guarantee the Debt Securities pursuant to the terms of the Indentures and to perform its obligations under the Debt Guarantees.
(3) The Debt Guarantees, upon being duly authorized by all necessary corporate (with respect to those Arkansas Guarantors which are corporations) or limited liability company (with respect to those Arkansas Guarantors which are limited liability companies) action, executed by an authorized signatory and delivered, will be validly authorized, executed, and delivered for corporate (with respect to those Arkansas Guarantors which are corporations) or limited liability company (with respect to those Arkansas Guarantors which are limited liability companies) State Law purposes by each Arkansas Guarantor.
This opinion is limited to the matters expressly set forth above, and no opinion is implied or may be inferred beyond the matters expressly so stated. We assume no obligation to advise you of any future changes in the facts or law relating to the matters covered by this opinion.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement in accordance with applicable Commission regulations under the Securities Act and to the reference to our firm under the caption “Legal Matters” in the prospectus contained in the Registration Statement. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
We are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters including, without limitation, any opinions as to the enforceability or effectiveness of the Transaction Documents. We expressly assume that the Transaction Documents, contain typical and customary terms and provisions and that the Indentures, upon execution and delivery, will be enforceable in accordance with their terms. This opinion letter is provided to you as a legal opinion only and not as a guaranty or warranty of the matters discussed herein.
| Sincerely, |
| /s/ Kutak Rock LLP |
| KUTAK ROCK LLP |
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
Page 4
Schedule I
Arkansas Guarantors
| Name of Arkansas Guarantor |
State of Organization | |
| Forrest City Arkansas Hospital Company, LLC |
AR | |
| Forrest City Hospital Corporation |
AR | |
| Fort Smith HMA, LLC |
AR | |
| MCSA, L.L.C. |
AR | |
| Phillips Hospital Corporation |
AR | |
| QHG of Springdale, Inc. |
AR | |
| Triad - El Dorado, Inc. |
AR | |
| Van Buren H.M.A., LLC |
AR |
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
Page 5
Exhibit A
Organizational Documents
| 1. | Forrest City Arkansas Hospital Company, LLC, an Arkansas limited liability company: |
| A. | Articles of Organization, filed with the Arkansas Secretary of State January 31, 2006 and certified by the Arkansas Secretary of State as of September 2, 2014; |
| B. | Operating Agreement dated January 31, 2006; and |
| C. | Good Standing Certificate issued by the Arkansas Secretary of State dated April 30, 2015. |
| 2. | Forrest City Hospital Corporation, an Arkansas corporation: |
| A. | Articles of Incorporation, filed with the Arkansas Secretary of State January 31, 2006 and certified by the Arkansas Secretary of State as of September 2, 2014; |
| B. | Bylaws dated January 31, 2006; and |
| C. | Good Standing Certificate issued by the Arkansas Secretary of State dated April 30, 2015. |
| 3. | MCSA, L.L.C., an Arkansas limited liability company: |
| A. | Articles of Organization, dated as of February 23, 1996 and certified by the Arkansas Secretary of State as of September 2, 2014; |
| B. | Third Amended And Restated Limited Liability Company Agreement dated April 1, 2009; and |
| C. | Good Standing Certificate issued by the Arkansas Secretary of State dated April 30, 2015. |
| 4. | Phillips Hospital Corporation, an Arkansas corporation: |
| A. | Articles of Incorporation, dated January 23, 2002 and certified by the Arkansas Secretary of State as of September 2, 2014; |
| B. | Bylaws dated January 24, 2002; and |
| C. | Good Standing Certificate issued by the Arkansas Secretary of State dated April 30, 2015. |
| 5. | QHG of Springdale, Inc., an Arkansas corporation: |
| A. | Articles of Incorporation, dated October 1, 1998 and certified by the Arkansas Secretary of State as of September 2, 2014; |
| B. | Undated Bylaws consisting of thirteen pages previously provided to us and as certified to in the Officer’s Certificate; and |
| C. | Good Standing Certificate issued by the Arkansas Secretary of State dated April 30, 2015. |
| 6. | Triad - El Dorado, Inc., an Arkansas corporation: |
| A. | Articles of Incorporation, dated January 25, 1996, as amended May 7, 1999, and certified by the Arkansas Secretary of State as of September 2, 2014; |
| B. | Bylaws dated November 30, 1999; and |
| C. | Good Standing Certificate issued by the Arkansas Secretary of State dated April 30, 2015. |
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
Page 6
| 7. | Fort Smith HMA, LLC, an Arkansas limited liability company: |
| A. | Articles of Organization, filed with the Arkansas Secretary of State as of September 28, 2009 and certified by the Arkansas Secretary of State as of September 2, 2014; |
| B. | Amended and Restated Limited Liability Company Agreement of Fort Smith HMA, LLC dated January 27, 2014; and |
| C. | Good Standing Certificate issued by the Arkansas Secretary of State dated April 30, 2015. |
| 8. | Van Buren H.M.A., LLC, an Arkansas limited liability company: |
| A. | Articles of Organization, filed with the Arkansas Secretary of State as of March 13, 2009 and certified by the Arkansas Secretary of State as of September 2, 2014; |
| B. | Amended and Restated Limited Liability Company Agreement of Van Buren H.M.A., LLC dated January 27, 2014; and |
| C. | Good Standing Certificate issued by the Arkansas Secretary of State dated April 30, 2015. |
[LETTERHEAD OF SNELL & WILMER L.L.P.]
Exhibit 5.4
May 6, 2015
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
4000 Meridian Boulevard
Franklin, Tennessee 37067
| Re: | Registration Statement on Form S-3 |
Ladies and Gentlemen:
We are issuing this opinion in our capacity as special Arizona counsel for Bullhead City Hospital Corporation and Payson Hospital Corporation, each an Arizona corporation (each a “Guarantor” and, together the “Guarantors”), in connection with each Guarantor’s proposed guarantee (together, the “Debt Guarantees”) of debt securities (collectively, the “Debt Securities”) to be issued from time to time by Community Health Systems, Inc., a Delaware corporation (“Parent”), or CHS/Community Health Systems, Inc., a Delaware corporation (“CHS/CHS” and, together with Parent, the “Issuers”), pursuant to forms of senior and subordinated notes indentures (collectively, the “Indentures”) that were filed with the Securities and Exchange Commission (the “Commission”) as exhibits to the Issuers’ registration statement on Form S-3 (the “Registration Statement”) on or about May 6, 2015.
For purposes of this opinion, we have assumed the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as copies and the authenticity of the originals of all documents submitted to us as copies. We have also assumed the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered, the authority of such persons signing on behalf of the parties thereto other than the Guarantors, the legal capacity and competency of all natural persons, and the due authorization, execution and delivery of all documents by the parties thereto other than the Guarantors. As to any facts material to the opinions expressed herein that we have not independently established or verified, we have relied upon statements and representations of officers and other representatives of the Issuers and the Guarantors. In addition, we have reviewed and relied upon such records, documents, certificates and other instruments as in our judgment are necessary or appropriate to form the basis for rendering our opinions.
Subject to the assumptions, exceptions and limitations hereinabove and hereinafter stated, it is our opinion that:
(1) Each Guarantor is validly existing and in good standing under the laws of the State of Arizona.
May 6, 2015
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(2) Each Guarantor has the requisite corporate power to guarantee the Debt Securities and to perform its obligations under the Indentures with respect to the Debt Guarantee of the Debt Securities.
(3) The Debt Guarantees, upon being duly authorized by all necessary corporate action, executed by an authorized signatory and delivered, will be validly authorized, executed, and delivered for corporate law purposes by each Guarantor.
Our advice on every legal issue addressed in this letter is based exclusively on the internal law of the States of Arizona as in effect on the date hereof. None of the opinions or other advice contained in this letter considers or covers any foreign or state securities (or “blue sky”) laws or regulations.
We hereby consent to any reliance on this opinion letter and the opinions provided herein by the law firm Hodgson Russ LLP in connection with the legal opinion provided by that law firm that is in included as an exhibit to the Registration Statement. We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the prospectus contained in the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
| Very truly yours, |
| /s/ Snell & Wilmer L.L.P. |
[LETTERHEAD OF BASS, BERRY & SIMS PLC]
Exhibit 5.5
May 6, 2015
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
4000 Meridian Boulevard
Franklin, Tennessee 37067
Ladies and Gentlemen:
We have acted as counsel to Community Health Systems, Inc. (the “Parent”), CHS/Community Health Systems, Inc. (“CHS”) and the entities identified on Schedule I attached hereto (the “Delaware/Tennessee Subsidiary Guarantors”), each organized and existing under the laws of the States of Tennessee or Delaware, as applicable, in connection with the filing by the Parent with the Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form S-3 (the “Registration Statement”), which relates to the shelf registration under the Securities Act of 1933, as amended (the “Securities Act”) of the issuance from time to time of: (i) debt securities of the Parent (the “Parent Debt Securities”) to be issued pursuant to forms of senior and subordinated notes indentures that are attached as Exhibits 4.1 and 4.2 to the Registration Statement (the “Parent Indentures”), which Parent Debt Securities may be guaranteed by certain subsidiaries of the Parent, including CHS and the Delaware/Tennessee Subsidiary Guarantors (the “Parent Debt Securities Guarantees”); (ii) debt securities of CHS (the “CHS Debt Securities” and together with the Parent Debt Securities, the “Debt Securities”) to be issued pursuant to forms of senior and subordinated notes indentures that are attached as Exhibits 4.3 and 4.4 to the Registration Statement (the “CHS Indentures” and together with the Parent Indentures, the “Indentures”), which CHS Debt Securities may be guaranteed by the Parent and certain subsidiaries of the Parent, including the Delaware/Tennessee Subsidiary Guarantors (the “CHS Debt Securities Guarantees” and together with the Parent Debt Securities Guarantees, the “Debt Securities Guarantees”); (iii) shares of preferred stock, $0.01 par value per share, of the Parent (the “Preferred Stock”); (iv) shares of common stock, $0.01 par value per share, of the Parent (the “Common Stock”); (v) shares of Preferred Stock of the Parent represented by depositary shares, each of which will represent a fractional share or multiple shares of Preferred Stock (the “Depositary Shares”); and (vi) warrants of the Parent to purchase Common Stock, Preferred Stock, Depository Shares and/or Debt Securities (the “Warrants” and together with the Debt Securities, the Debt Securities Guarantees, the Preferred Stock, the Common Stock and the Depositary Shares).
In rendering our opinions herein, we have relied with respect to factual matters, upon a certificate with respect to various factual matters signed by an officer of each of the Parent, CHS and the Delaware/Tennessee Subsidiary Guarantors and dated the date of this opinion, and certificates of public officials referred to below. In addition, we have reviewed and relied upon such corporate or other organizational documents of the Parent, CHS and the Delaware/Tennessee Subsidiary Guarantors and such other records, documents, certificates and other instruments as in our judgment are necessary or appropriate to form the basis for rendering our opinions, including, without limitation, the Indentures, the Registration Statement, and the prospectus contained within the Registration Statement (the “Prospectus”).
Except to the extent we opine as to the binding effect and/or enforceability of certain documents as set forth in paragraphs 11 and 12 below, we have assumed that all documents referenced below are the valid and binding obligations of and enforceable against the parties thereto. We have also assumed the
May 6, 2015
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authenticity of all documents submitted to us as originals, the genuineness of all signatures, the conformity to authentic original documents of all documents submitted to us as certified, conformed or photostatic copies, the legal capacity of all natural persons and, as to certificates of public officials, we have assumed the same to have been properly given and to be accurate.
Except as expressly set forth in this opinion letter, we have made no independent investigation or inquiry as to the accuracy or completeness of any representation, warranty, data, certificate or other information, written or oral, made or furnished to us in connection with the transactions contemplated by the Registration Statement.
The opinions expressed herein are limited in all respects to the Delaware General Corporation Law, the Delaware Limited Liability Company Act, the Delaware Revised Uniform Limited Partnership Act and the laws of the State of Tennessee, and no opinion is expressed with respect to (i) any federal laws of the United States of America or any other jurisdiction, or any effect which such laws may have on the opinions expressed herein, (ii) the bylaws, rules or regulations of the Financial Industry Regulatory Authority, Inc. or (iii) the securities or “blue sky” laws of any jurisdiction. We are not rendering any opinion, and we are not providing any assurance, as to compliance with any antifraud law, rule or regulation relating to securities, or to the sale or issuance thereof.
With regard to our opinion in paragraph 1 below with respect to the Parent’s, CHS’s and the Delaware/Tennessee Subsidiary Guarantors’ good standing, we have based our opinions solely upon examination of the certificates of good standing issued by the Delaware Secretary of State and the Tennessee Secretary of State as of a recent date.
Based on the foregoing, and subject to the assumptions, limitations and qualifications set forth herein, we are of the opinion that:
1. Each of the Parent, CHS and the Delaware/Tennessee Subsidiary Guarantors is validly existing under the laws of its respective jurisdiction of incorporation or formation, as applicable.
2. The Parent has the requisite corporate power under the laws of the State of Delaware to execute, deliver and perform its obligations under the Parent Indentures and to issue the Parent Debt Securities.
3. CHS has the requisite corporate power under the laws of the State of Delaware to execute, deliver and perform its obligations under the CHS Indentures and to issue the CHS Debt Securities.
4. CHS has the requisite corporate power to guarantee the Parent Debt Securities pursuant to the terms of the Parent Indentures and to perform its obligations under the Parent Debt Securities Guarantees.
5. The Parent has the requisite corporate power to guarantee the CHS Debt Securities pursuant to the terms of the CHS Indentures and to perform its obligations under the CHS Debt Securities Guarantees.
6. Each of the Delaware/Tennessee Subsidiary Guarantors has the requisite corporate, limited liability company or partnership power, as applicable, to guarantee the Debt Securities pursuant to the terms of the Indentures and to perform its obligations under the Debt Securities Guarantees.
7. The Parent Debt Securities Guarantees, upon being duly authorized by all necessary corporate, limited liability company or partnership action, as applicable, executed by an authorized signatory and delivered, will be validly authorized, executed and delivered for corporate, limited liability company or partnership law purposes, as applicable, by CHS and each of the Delaware/Tennessee Subsidiary Guarantors.
May 6, 2015
Page 3
8. The CHS Debt Securities Guarantees, upon being duly authorized by all necessary corporate, limited liability company or partnership action, as applicable, executed by an authorized signatory and delivered, will be validly authorized, executed and delivered for corporate, limited liability company or partnership law purposes, as applicable, by Parent and each of the Delaware/Tennessee Subsidiary Guarantors.
9. (a) When a new class or series of Preferred Stock has been duly established in accordance with the terms of the Parent’s Restated Certificate of Incorporation, as amended (“Certificate of Incorporation”) and Amended and Restated Bylaws (“Bylaws”) and authorized by all necessary corporate action of the Parent, and (b) assuming that either an appropriate certificate of amendment of the Parent’s Certificate of Incorporation or a certificate of designation, in either case, fixing and determining the terms of such class or series of Preferred Stock has been duly approved by the Parent’s Board of Directors and been filed with and accepted for record by the Secretary of State of the State of Delaware, and (c) assuming that the Registration Statement and any required post-effective amendment(s) thereto and any and all supplements to the Prospectus (each, a “Prospectus Supplement”) required by applicable laws have become effective under the Securities Act and been timely filed with the Commission, and (d) assuming that upon the issuance of such Preferred Stock, the total number of issued and outstanding shares of the applicable class or series of Preferred Stock will not exceed the total number of shares of Preferred Stock or the number of shares of such class or series of Preferred Stock that the Parent is then authorized to issue under its Certificate of Incorporation, then upon issuance and delivery of and payment for such shares in the manner contemplated by the Registration Statement, the Prospectus and the related Prospectus Supplement(s) and by such corporate action, such shares of such class or series of Preferred Stock (including any Preferred Stock duly issued upon conversion, exchange or exercise of any other Securities) will be validly issued, fully paid and nonassessable.
10. (a) When an issuance of Common Stock has been duly authorized by all necessary corporate action of the Parent, and (b) assuming that the Registration Statement and any required post-effective amendment(s) thereto and any and all Prospectus Supplement(s) required by applicable laws have become effective under the Securities Act and been timely filed with the Commission, and (c) assuming that upon the issuance of such Common Stock, the total number of issued and outstanding shares of Common Stock will not exceed the total number of shares of Common Stock that the Parent is then authorized to issue under its Certificate of Incorporation, then upon issuance and delivery of and payment for such shares in the manner contemplated by the Registration Statement, the Prospectus and the related Prospectus Supplement(s) and by such corporate action, such shares of Common Stock (including any Common Stock duly issued upon conversion, exchange or exercise of any other Securities) will be validly issued, fully paid and nonassessable.
11. (a) When a deposit agreement relating to the Depositary Shares (the “Deposit Agreement”) has been duly authorized, executed and delivered and the Depositary Shares and the securities underlying the Depositary Shares have been duly authorized by all necessary corporate action of the Parent, and (b) assuming that the terms of the Depositary Shares and of their issuance and sale have been duly established in conformity with the Parent’s Certificate of Incorporation and Bylaws and the Deposit Agreement, and (c) assuming that the Registration Statement and any required post-effective amendment(s) thereto and any and all Prospectus Supplement(s) required by applicable laws have all become effective under the Securities Act and been timely filed with the Commission, and (d) assuming that the terms of the Depositary Shares as executed and delivered are as described in the Registration Statement, the Prospectus and the related Prospectus Supplement(s), and (e) assuming that the Depositary Shares, as executed and delivered, do not violate any law applicable to the Parent or result in a default under or breach of any agreement or instrument binding upon the Parent, and (f) assuming that the
May 6, 2015
Page 4
Depositary Shares as executed and delivered comply with all requirements and restrictions, if any, applicable to the Parent, whether imposed by any court or governmental or regulatory body having jurisdiction over the Parent, and (g) assuming that the Depositary Shares are then issued and sold as contemplated in the Registration Statement, the Prospectus and the Prospectus Supplement(s), then upon issuance of and delivery of and payment for such Depositary Shares in the manner contemplated by the Registration Statement, the Prospectus and the related Prospectus Supplement and the Deposit Agreement and by such corporate action, the Depositary Shares will constitute valid and binding obligations of the Parent, enforceable against the Parent in accordance with their terms, and the Depositary Shares will be validly issued.
12. (a) When a warrant agreement relating to the Warrants (the “Warrant Agreement”) has been duly authorized, executed and delivered and the Warrants and the securities for which the Warrants will be exercisable have been duly authorized by all necessary corporate action of the Parent, and (b) assuming that the terms of the Warrants and of their issuance and sale have been duly established in conformity with the Parent’s Certificate of Incorporation and Bylaws and the Warrant Agreement, and (c) assuming that the Registration Statement and any required post-effective amendment(s) thereto and any and all Prospectus Supplement(s) required by applicable laws have all become effective under the Securities Act and been timely filed with the Commission, and (d) assuming that the terms of the Warrants as executed and delivered are as described in the Registration Statement, the Prospectus and the related Prospectus Supplement(s), and (e) assuming that the Warrants, as executed and delivered, do not violate any law applicable to the Parent or result in a default under or breach of any agreement or instrument binding upon the Parent, and (f) assuming that the Warrants as executed and delivered comply with all requirements and restrictions, if any, applicable to the Parent, whether imposed by any court or governmental or regulatory body having jurisdiction over the Parent, and (g) assuming that the Warrants are then issued and sold as contemplated in the Registration Statement, the Prospectus and the Prospectus Supplement(s), then upon issuance of and delivery of and payment for such Warrants in the manner contemplated by the Registration Statement, the Prospectus and the related Prospectus Supplement and the Warrant Agreement and by such corporate action, the Warrants will constitute valid and binding obligations of the Parent, enforceable against the Parent in accordance with their terms, and the Warrants will be validly issued.
The opinions set forth in paragraphs 11 and 12 above are subject to the following exceptions, limitations and qualifications: (i) the effect of bankruptcy, insolvency, reorganization, arrangement, moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting the rights of creditors; (ii) the effect of general principles of equity (including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance, injunctive relief and other equitable remedies), regardless of whether considered in a proceeding at law or in equity, (iii) the effect of public policy considerations that may limit the rights of the parties to obtain further remedies, (iv) we express no opinion with respect to the enforceability of provisions relating to choice of law, choice of venue, jurisdiction or waivers of jury trial, and (v) we express no opinion with respect to the enforceability of any waiver of any usury defense.
To the extent that any obligations of the Parent, CHS or the Delaware/Tennessee Subsidiary Guarantors with respect to the Securities may be dependent on such matters, we have assumed for purposes of this opinion that any party to a Warrant Agreement or Depositary Agreement other than the Parent will be duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; that such other party will be duly qualified to engage in the activities contemplated by the Warrant Agreement or the Depositary Agreement, as applicable; that such Warrant Agreement or Depositary Agreement will be duly authorized, executed and delivered by such other party and will constitute the legally valid, binding and enforceable obligation of such other party, enforceable against such other party in accordance with its terms; that such other party will be in compliance with respect to performance of its obligations under such Warrant Agreement or Depositary Agreement, as applicable,
May 6, 2015
Page 5
and with all applicable laws and regulations; and that such other party will have the requisite organizational and legal power and authority to perform its obligations under such Warrant Agreement or Depositary Agreement, as applicable. We have also assumed that, in the case of a Warrant Agreement, Depositary Agreement, certificate of designation or other agreement or instrument pursuant to which any Securities are to be issued, there will be no terms or provisions contained therein which would affect the validity of any of the opinions rendered herein.
Our opinion is rendered as of the date hereof, and we assume no obligation to advise you of any changes in the facts or law relating to the matters covered by this opinion that may hereafter come to our attention.
We hereby consent to any reliance on this opinion letter and the opinions provided herein by the law firm Hodgson Russ LLP in connection with the legal opinion provided by that law firm that is in included as an exhibit to the Registration Statement. Additionally, we hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the prospectus contained in the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Bass, Berry & Sims PLC
Schedule I
Delaware/Tennessee Subsidiary Guarantors
| Name of Delaware/Tennessee Subsidiary Guarantor |
State of Organization | |
| Abilene Hospital, LLC |
DE | |
| Abilene Merger, LLC |
DE | |
| Affinity Health Systems, LLC |
DE | |
| Affinity Hospital, LLC |
DE | |
| Berwick Hospital Company, LLC |
DE | |
| Birmingham Holdings II, LLC |
DE | |
| Birmingham Holdings, LLC |
DE | |
| Blue Island Hospital Company, LLC |
DE | |
| Blue Island Illinois Holdings, LLC |
DE | |
| Bluefield Holdings, LLC |
DE | |
| Bluefield Hospital Company, LLC |
DE | |
| Bluffton Health System LLC |
DE | |
| Brownwood Hospital, L.P. |
DE | |
| Brownwood Medical Center, LLC |
DE | |
| Bullhead City Hospital Investment Corporation |
DE | |
| Carlsbad Medical Center, LLC |
DE | |
| Carolinas JV Holdings General, LLC |
DE | |
| Carolinas JV Holdings, L.P. |
DE | |
| Central Florida HMA Holdings, LLC |
DE | |
| Central States HMA Holdings, LLC |
DE | |
| CHHS Holdings, LLC |
DE | |
| CHS Kentucky Holdings, LLC |
DE | |
| CHS Pennsylvania Holdings, LLC |
DE | |
| CHS Virginia Holdings, LLC |
DE | |
| CHS Washington Holdings, LLC |
DE | |
| Clarksville Holdings II, LLC |
DE | |
| Clarksville Holdings, LLC |
DE | |
| Cleveland Tennessee Hospital Company, LLC |
DE | |
| College Station Hospital, L.P. |
DE | |
| College Station Medical Center, LLC |
DE | |
| College Station Merger, LLC |
DE | |
| Community GP Corp. |
DE | |
| Community Health Investment Company, LLC |
DE | |
| Community Health Systems, Inc. |
DE | |
| Community LP Corp. |
DE | |
| CP Hospital GP, LLC |
DE | |
| CPLP, LLC |
DE |
| Name of Delaware/Tennessee Subsidiary Guarantor |
State of Organization | |
| Crestwood Hospital, LLC |
DE | |
| Crestwood Hospital, LP, LLC |
DE | |
| CSMC, LLC |
DE | |
| CSRA Holdings, LLC |
DE | |
| Deaconess Holdings, LLC |
DE | |
| Deaconess Hospital Holdings, LLC |
DE | |
| Desert Hospital Holdings, LLC |
DE | |
| Detar Hospital, LLC |
DE | |
| DHFW Holdings, LLC |
DE | |
| DHSC, LLC |
DE | |
| Dukes Health System, LLC |
DE | |
| Fallbrook Hospital Corporation |
DE | |
| Florida HMA Holdings, LLC |
DE | |
| Gadsden Regional Medical Center, LLC |
DE | |
| GRMC Holdings, LLC |
DE | |
| Hallmark Healthcare Company, LLC |
DE | |
| Health Management Associates, Inc. |
DE | |
| Health Management Associates, LP |
DE | |
| Health Management General Partner I, LLC |
DE | |
| Health Management General Partner, LLC |
DE | |
| HMA Hospitals Holdings, LP |
DE | |
| HMA Services GP, LLC |
DE | |
| Hobbs Medco, LLC |
DE | |
| Hospital of Barstow, Inc. |
DE | |
| Kirksville Hospital Company, LLC |
DE | |
| Lancaster Hospital Corporation |
DE | |
| Las Cruces Medical Center, LLC |
DE | |
| Lea Regional Hospital, LLC |
DE | |
| Longview Clinic Operations Company, LLC |
DE | |
| Longview Medical Center, L.P. |
DE | |
| Longview Merger, LLC |
DE | |
| LRH, LLC |
DE | |
| Lutheran Health Network of Indiana, LLC |
DE | |
| Massillon Community Health System LLC |
DE | |
| Massillon Health System LLC |
DE | |
| Massillon Holdings, LLC |
DE | |
| McKenzie Tennessee Hospital Company, LLC |
DE | |
| Medical Center of Brownwood, LLC |
DE | |
| Merger Legacy Holdings, LLC |
DE | |
| Mesquite HMA General, LLC |
DE | |
| Mississippi HMA Holdings I, LLC |
DE | |
| Mississippi HMA Holdings II, LLC |
DE |
| Name of Delaware/Tennessee Subsidiary Guarantor |
State of Organization | |
| MMC of Nevada, LLC |
DE | |
| Moberly Hospital Company, LLC |
DE | |
| MWMC Holdings, LLC |
DE | |
| Natchez Hospital Company, LLC |
DE | |
| National Healthcare of Leesville, Inc. |
DE | |
| National Healthcare of Mt. Vernon, Inc. |
DE | |
| Navarro Hospital, L.P. |
DE | |
| Navarro Regional, LLC |
DE | |
| Northampton Hospital Company, LLC |
DE | |
| Northwest Arkansas Hospitals, LLC |
DE | |
| Northwest Hospital, LLC |
DE | |
| NOV Holdings, LLC |
DE | |
| NRH, LLC |
DE | |
| Oro Valley Hospital, LLC |
DE | |
| Palmer-Wasilla Health System, LLC |
DE | |
| Pennsylvania Hospital Company, LLC |
DE | |
| Phoenixville Hospital Company, LLC |
DE | |
| Pottstown Hospital Company, LLC |
DE | |
| QHG Georgia Holdings II, LLC |
DE | |
| QHG of Bluffton Company, LLC |
DE | |
| QHG of Fort Wayne Company, LLC |
DE | |
| Quorum Health Resources, LLC |
DE | |
| Regional Hospital of Longview, LLC |
DE | |
| Ruston Hospital Corporation |
DE | |
| Ruston Louisiana Hospital Company, LLC |
DE | |
| SACMC, LLC |
DE | |
| San Angelo Community Medical Center, LLC |
DE | |
| San Angelo Medical, LLC |
DE | |
| Scranton Holdings, LLC |
DE | |
| Scranton Hospital Company, LLC |
DE | |
| Scranton Quincy Holdings, LLC |
DE | |
| Scranton Quincy Hospital Company, LLC |
DE | |
| Sharon Pennsylvania Holdings, LLC |
DE | |
| Sharon Pennsylvania Hospital Company, LLC |
DE | |
| Siloam Springs Arkansas Hospital Company, LLC |
DE | |
| Siloam Springs Holdings, LLC |
DE | |
| Southeast HMA Holdings, LLC |
DE | |
| Southern Texas Medical Center, LLC |
DE | |
| Southwest Florida HMA Holdings, LLC |
DE | |
| Spokane Valley Washington Hospital Company, LLC |
DE | |
| Spokane Washington Hospital Company, LLC |
DE | |
| Tennessee HMA Holdings, LP |
DE |
| Name of Delaware/Tennessee Subsidiary Guarantor |
State of Organization | |
| Tennyson Holdings, LLC |
DE | |
| Tomball Texas Holdings, LLC |
DE | |
| Tomball Texas Hospital Company, LLC |
DE | |
| Triad Healthcare Corporation |
DE | |
| Triad Holdings III, LLC |
DE | |
| Triad Holdings IV, LLC |
DE | |
| Triad Holdings V, LLC |
DE | |
| Triad Nevada Holdings, LLC |
DE | |
| Triad of Alabama, LLC |
DE | |
| Triad of Oregon, LLC |
DE | |
| Triad-ARMC, LLC |
DE | |
| Triad-Navarro Regional Hospital Subsidiary, LLC |
DE | |
| Tunkhannock Hospital Company, LLC |
DE | |
| VHC Medical, LLC |
DE | |
| Vicksburg Healthcare, LLC |
DE | |
| Victoria Hospital, LLC |
DE | |
| Victoria of Texas, L.P. |
DE | |
| Warren Ohio Hospital Company, LLC |
DE | |
| Warren Ohio Rehab Hospital Company, LLC |
DE | |
| Watsonville Hospital Corporation |
DE | |
| Webb Hospital Corporation |
DE | |
| Webb Hospital Holdings, LLC |
DE | |
| Wesley Health System LLC |
DE | |
| West Grove Hospital Company, LLC |
DE | |
| WHMC, LLC |
DE | |
| Wilkes-Barre Behavioral Hospital Company, LLC |
DE | |
| Wilkes-Barre Holdings, LLC |
DE | |
| Wilkes-Barre Hospital Company, LLC |
DE | |
| Women & Children’s Hospital, LLC |
DE | |
| Woodland Heights Medical Center, LLC |
DE | |
| Woodward Health System, LLC |
DE | |
| York Pennsylvania Holdings, LLC |
DE | |
| York Pennsylvania Hospital Company, LLC |
DE | |
| Youngstown Ohio Hospital Company, LLC |
DE | |
| Campbell County HMA, LLC |
TN | |
| Cleveland Hospital Corporation |
TN | |
| Cocke County HMA, LLC |
TN | |
| Dyersburg Hospital Corporation |
TN | |
| HMA Fentress County General Hospital, LLC |
TN | |
| Hospital of Morristown, Inc. |
TN | |
| Jackson Hospital Corporation (TN) |
TN | |
| Jefferson County HMA, LLC |
TN |
| Name of Delaware/Tennessee Subsidiary Guarantor |
State of Organization | |
| Knoxville HMA Holdings, LLC |
TN | |
| Lakeway Hospital Corporation |
TN | |
| Lexington Hospital Corporation |
TN | |
| Martin Hospital Corporation |
TN | |
| McNairy Hospital Corporation |
TN | |
| Metro Knoxville HMA, LLC |
TN | |
| Shelbyville Hospital Corporation |
TN |
[LETTERHEAD OF BUCHANAN INGERSOLL & ROONEY PC | FOWLER WHITE BOGGS]
Exhibit 5.6
May 6, 2015
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
4000 Meridian Boulevard
Franklin, Tennessee 37067
| Re: | Debt Guarantees (as defined below) of Florida Subsidiary Guarantors (as defined below) issued pursuant to Indentures (defined below) filed as exhibits to the Registration Statement (as defined below) |
Ladies and Gentlemen:
We have acted as special limited counsel in the State of Florida to the entities listed on Schedule I (collectively, the “Florida Subsidiary Guarantors”), in connection with the Florida Subsidiary Guarantors’ proposed guarantees (collectively, the “Debt Guarantees”) of debt securities (collectively, the “Debt Securities”) to be issued from time to time by Community Health Systems, Inc., a Delaware corporation (“Parent”), or CHS/Community Health Systems, Inc., a Delaware corporation (“CHS/CHS” and, together with Parent, the “Issuers”), pursuant to forms of senior and subordinated notes indentures (collectively, the “Indentures”) that were filed with the Securities and Exchange Commission (the “Commission”) as exhibits to the Issuers’ registration statement on Form S-3 (the “Registration Statement”) on or about May 6, 2015.
In connection with our representation, we have made such legal and factual examinations and inquiries as are pertinent or necessary for the purpose of rendering the opinions herein expressed. We have examined and are familiar with the original or copies, certified or otherwise, identified to our satisfaction, of such documents, records and other instruments as are necessary for the furnishing of this letter.
In rendering our opinions herein, we have relied with respect to factual matters, upon the Officers’ Certificate (defined below), and certificates of public officials referred to below. In addition thereto, we have reviewed and relied upon such records, documents, certificates and other instruments, originals or copies, certified or otherwise, as in our judgment are necessary or appropriate to form the basis for rendering our opinions, including, without limitation, the following:
| (i) | the articles of organization and operating agreement of each Florida Subsidiary Guarantor which is a limited liability company, and the certificate of limited partnership and partnership agreement of each Florida Subsidiary Guarantor which is a Florida limited partnership; |
CHS/Community Health Systems, Inc.
May 6, 2015
Page 2
| (ii) | the certificate with respect to various factual matters signed by an officer of each of the Florida Subsidiary Guarantors and dated the date of this opinion (the “Officers’ Certificate”); |
| (iii) | Certificate of Status of each Florida Subsidiary Guarantor dated May 5, 2015 (collectively, the “Certificates of Status,” and individually with respect to a Florida Guarantor, the “Certificate of Status”); |
| (iv) | Action by Written Consent in Lieu of a Meeting of the Governing Boards (Managers, Members, and General Partners, as applicable) of the Florida Subsidiary Guarantors (among others), dated April 30, 2015 (the “Resolutions”); |
| (v) | the Indentures; and |
| (vi) | the Registration Statement. |
The documents described in Paragraphs (i) through (iii) above are sometimes collectively hereinafter referred to as the “Organizational Documents.” The documents described in Paragraphs (iv) and (vi) above are collectively hereinafter referred to as the “Transaction Documents” The Organizational Documents and the Transaction Documents shall collectively be referred to as the “Opinion Documents.”
We have also reviewed such other documents, instruments and certificates as we have deemed relevant or necessary to form the basis for the opinions set forth in this opinion letter.
For the purposes of this opinion, we have assumed, without independent verification or investigation, (i) the genuineness of all signatures of, and the authority of, persons signing the Opinion Documents, (ii) the authenticity of all documents submitted to us as originals, (iii) the conformity to authentic original documents of all documents submitted to us as certified, conformed or copies and (iv) the due authorization, execution and delivery of the Transaction Documents by the parties thereto other than the Florida Subsidiary Guarantors.
Based on the foregoing, and subject to the assumptions, exceptions, limitations hereinabove and hereinafter stated, it is our opinion that:
1. Based on the Certificates of Status, each of the Florida Subsidiary Guarantors is a validly existing limited liability company or limited partnership, as the case may be, organized under the laws of the State of Florida.
2. Each of the Florida Subsidiary Guarantors has the requisite limited liability company or limited partnership power, as the case may be, to guarantee the Debt Securities pursuant to the terms of the Indentures and to perform its obligations under the Debt Guarantees.
3. The Debt Guarantees, upon being duly authorized by all necessary limited liability company or limited partnership action, as the case may be, executed by an authorized signatory and delivered, will be validly authorized, executed, and delivered for limited liability company or limited partnership law purposes by each Florida Subsidiary Guarantor.
CHS/Community Health Systems, Inc.
May 6, 2015
Page 3
No opinion is given or expressed, nor should any opinion be inferred or implied, as to the truthfulness, completeness or accuracy of any representation, warranty, certification or statement by any of the parties to the Opinion Documents or any document or item referred to or described in the Opinion Documents.
This opinion letter is limited to the matters expressly stated herein. No opinions are to be inferred or implied beyond the opinions expressly so stated.
No opinion is expressed herein with respect to any provision of the Transaction Documents that: (a) purports to excuse a party from liability for the party’s own acts; (b) purports to make void any act done in contravention thereof; (c) purports to authorize a party to act in the party’s sole discretion or purports to provide that determination by a party is conclusive; (d) requires waivers or amendments to be made only in writing; (e) purports to effect waivers of: (i) constitutional, statutory or equitable rights, (ii) the effect of applicable laws, (iii) any statute of limitations, (iv) broadly or vaguely stated rights, (v) unknown future defenses, or (vi) rights to damages; (f) imposes or permits: (i) liquidated damages, (ii) the appointment of a receiver, (iii) penalties, (iv) indemnification for gross negligence, willful misconduct or other wrongdoing, (v) confessions of judgment, or (vi) rights of self-help or forfeiture; (g) purports to limit or alter laws requiring mitigation of damages; (h) concerns choice of forum, consent or submission to the personal or subject matter jurisdiction of courts, venue of actions, means of service of process, waivers of rights to jury trials, and agreements regarding arbitration; (i) purports to reconstitute the terms thereof as necessary to avoid a claim or defense of usury; (j) purports to require a party thereto to pay or reimburse attorneys’ fees incurred by another party, or to indemnify another party therefor, which provisions may be limited by applicable statutes and decisions relating to the collection and award of attorneys’ fees; (k) relates to the evidentiary standards or other standards by which the Opinion Documents are to be construed, including, but not limited to, provisions that attempt to change or waive rules of evidence or fix the method or quantum of proof to be applied in litigation or similar proceedings; (l) prohibits or unreasonably restricts: (i) competition, (ii) the solicitation or acceptance of customers, business relationships or employees, (iii) the use or disclosure of information, or (iv) activities in restraint of trade; (m) enumerates that remedies are not exclusive or that a party has the right to pursue multiple remedies without regard to other remedies elected or that all remedies are cumulative; (n) constitutes severability provisions; (o) permits the exercise, under certain circumstances, of rights without notice or without providing opportunity to cure failures to perform; (p) purports to create rights to setoff otherwise than in accordance with applicable law; (q) contains a blanket prohibition on assignments or a specific prohibition on assignment of payments due or to come due; or (r) purports to entitle any party to specific performance of any provision thereof.
Our opinions are further subject to the following qualifications and limitations: (i) provisions in the Transaction Documents which provide that any obligations of any Florida Guarantor thereunder will not be affected by the action or failure to act on the part of any other party thereto or by an amendment or waiver of the provisions contained in the other Transaction Documents might not be enforceable under circumstances in which such action, failure to act, amendment or waiver so materially changes the essential terms of the obligations that, in effect, a new contract has arisen between the parties; (ii) our opinions do not relate to any documents or instruments other than the Opinion Documents, and we express no opinion as to such other
CHS/Community Health Systems, Inc.
May 6, 2015
Page 4
documents or instruments (including, without limitation, any documents or instruments referenced or incorporated in any of the Transaction Documents) or as to the interplay between the Opinion Documents and any such other documents and instruments; and (iii) we express no opinion as to any security interest created or purported to be created under the Transaction Documents.
Where our opinion herein with respect to the existence or absence of facts is indicated to be based on or to our knowledge, it is intended to signify that during the course of our representation as special counsel to the Florida Subsidiary Guarantors, no information has come to our attention which would give us actual knowledge of the existence or absence of such facts. When a matter is stated herein to be “to our knowledge” it means the actual current recollections of those persons in our firm who have given substantive attention to the transactions contemplated in the Transaction Documents and does not include constructive knowledge of matters or information. Such phrase does not imply that we have undertaken any independent investigation within our firm, with the Florida Subsidiary Grantors or with any third party to determine the existence or absence of any facts or circumstances, and no inference should be drawn merely from our past or current representation of the Florida Subsidiary Guarantors.
This firm takes no responsibility for updating our opinion to take into account any event, action, interpretation, change of law or similar item after the date hereof.
We are licensed to practice law in the State of Florida, and we have not examined the laws of any other jurisdiction in connection with this opinion letter. Accordingly, the foregoing opinions apply only with respect to the present laws of the State of Florida, and we express no opinion with respect to the laws of any other jurisdiction. We do not express any opinion as to any parties to the Transaction Documents other than the Florida Subsidiary Guarantors.
This opinion is rendered pursuant to your request in connection with the filing of the Registration Statement and speaks only as of the date hereof. We assume no responsibility or obligation to update this opinion or to take into account changes in law, facts or any other developments of which we may later become aware.
We hereby consent to any reliance on this opinion letter and the opinions provided herein by the law firm Hodgson Russ LLP in connection with the legal opinion provided by that law firm that is in included as an exhibit to the Registration Statement. Additionally, we hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the prospectus contained in the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
Except as expressly stated herein, this opinion is not to be furnished, quoted or referred to any other party or governmental agency without this law firm’s prior written consent; provided, however, that this opinion letter may be furnished to (a) regulatory authorities having jurisdiction over you, provided that you are legally compelled to do so, and (b) to other parties as required by law or a court of competent jurisdiction.
CHS/Community Health Systems, Inc.
May 6, 2015
Page 5
| Sincerely, |
| /s/ BUCHANAN INGERSOLL & ROONEY PC | |
| FOWLER WHITE BOGGS |
Schedule I
Florida Subsidiary Guarantors
| Bartow HMA, LLC |
FL | |
| Brevard HMA Holdings, LLC |
FL | |
| Brevard HMA Hospitals, LLC |
FL | |
| Citrus HMA, LLC |
FL | |
| HMA Santa Rosa Medical Center, LLC |
FL | |
| Hospital Management Associates, LLC |
FL | |
| Hospital Management Services of Florida, LP |
FL | |
| Key West HMA, LLC |
FL | |
| Lehigh HMA, LLC |
FL | |
| Melbourne HMA, LLC |
FL | |
| Naples HMA, LLC |
FL | |
| Port Charlotte HMA, LLC |
FL | |
| Punta Gorda HMA, LLC |
FL | |
| Rockledge HMA, LLC |
FL | |
| Sebastian Hospital, LLC |
FL | |
| Sebring Hospital Management Associates, LLC |
FL | |
| Venice HMA, LLC |
FL |
[LETTERHEAD OF KING & SPALDING LLP]
Exhibit 5.7
May 6, 2015
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
4000 Meridian Boulevard
Franklin, Tennessee 37067
Ladies and Gentlemen:
We have acted as special Georgia counsel to the entities listed on Schedule I (collectively, the “Georgia Subsidiary Guarantors”), in connection with the Georgia Subsidiary Guarantors’ proposed guarantees (collectively, the “Debt Guarantees”) of debt securities (collectively, the “Debt Securities”) to be issued from time to time by Community Health Systems, Inc., a Delaware corporation (“Parent”), or CHS/Community Health Systems, Inc., a Delaware corporation (“CHS/CHS” and, together with Parent, the “Issuers”), pursuant to forms of senior and subordinated notes indentures (collectively, the “Indentures”) that were filed with the Securities and Exchange Commission (the “Commission”) as exhibits to the Issuers’ registration statement on Form S-3 (the “Registration Statement”) on or about May 6, 2015.
In rendering the opinions set forth herein, we have examined and relied on originals or copies (certified or otherwise identified to our satisfaction) of those corporate records, agreements, organizational documents and other instruments, and those certificates or comparable documents of public officials and of officers and representatives of the Issuers and the Georgia Subsidiary Guarantors, as we have deemed relevant and necessary as a basis for the opinion hereinafter set forth, as more particularly described below (collectively, the “Documents”):
(i) the Registration Statement;
(ii) the Indentures;
(iii) the articles of incorporation, bylaws, operating agreements and partnership agreements, as applicable, for each Georgia Guarantor;
(iv) the certificate with respect to various factual matters signed by an officer of each of the Georgia Guarantors and dated the date of this opinion (the “Officer’s Certificate”); and
(v) Certificates of Good Standing of each of the Georgia Guarantors, each dated March 2, 2015.
In rendering the opinions set forth below, we have, with your consent, relied only upon examination of the Documents and have made no independent verification or investigation of the factual matters set forth herein. We did not participate in the negotiation or preparation of the Indentures and have not advised the Issuers or the Georgia Subsidiary Guarantors with respect to such documents or transactions contemplated thereby.
In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the
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May 6, 2015
Page 2
originals of such copies and, as to certificates of public officials, we have assumed the same to have been properly given and to be accurate. As to all questions of fact material to this opinion letter that have not been independently established, we have relied upon certificates or comparable documents of officers and representatives of the Issuers and the Georgia Subsidiary Guarantors and have assumed that such matters remain true and correct through the date hereof. We have also assumed that each agreement referred to in this letter has been duly authorized, executed and delivered by, and is a legal, valid, binding and enforceable obligation of, each party thereto other than the Georgia Guarantors.
Additionally, we have, with your consent, assumed and relied upon the following without undertaking any independent investigation or inquiry:
(a) with respect to the factual matters set forth herein, the accuracy and completeness of all certificates and other statements, documents, records, financial statements and papers reviewed by us;
(b) Each of Parent, CHS/CHS and each of the Guarantors (as defined in the Indenture) other than the Georgia Guarantors is duly organized, validly existing and in good standing under the laws of all jurisdictions where each is conducting its business or otherwise required to be so qualified to do business and has full power and authority to execute, deliver and perform under the agreements referenced herein, and all such documents have been duly and validly authorized, executed and delivered by Parent, CHS/CHS and each of the Guarantors other than the Georgia Guarantors; and
(c) the absence of duress, fraud or mutual mistake of material facts on the part of parties to the agreements referenced herein.
In respect to representations, statements and certificates referred to above, we have not undertaken to verify independently the representations, statements and certifications made; provided, however, that we are not aware of any facts or circumstances affecting the accuracy of such representations, statements or certifications. The opinion set forth in paragraph 1 below as to the existence of each of the Georgia Subsidiary Guarantors is based solely on a review of the certificates of public officials referenced above and the Officer’s Certificate.
This opinion is limited in all respects to the laws of the State of Georgia, and no opinion is expressed with respect to the laws of any other jurisdiction or any effect which such laws may have on the opinions expressed herein. Insofar as any Document invokes the laws of any state or jurisdiction other than Georgia as applicable to the construction, validity, binding effect or enforceability of such Document, we have assumed, with your consent, that the laws of such state or jurisdiction do not differ from Georgia law with respect to such matters. No opinion is expressed with respect to the enforceability of any choice of law provision.
Based on the foregoing, and subject to the assumptions, limitations and qualifications set forth herein, we are of the opinion that:
(1) Each of the Georgia Subsidiary Guarantors is validly existing under the laws of the State of Georgia.
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May 6, 2015
Page 3
(2) Each Georgia Guarantor has the requisite corporate, limited liability company or partnership power, as applicable, to guarantee the Debt Securities pursuant to the terms of the Indentures and to perform its obligations under the Debt Guarantees.
(3) The Debt Guarantees, upon being duly authorized by all necessary corporate or other action, executed by an authorized signatory and delivered, will be validly authorized, executed, and delivered for Georgia corporate, limited liability company or partnership, as applicable, law purposes by each Georgia Subsidiary Guarantor.
We hereby consent to any reliance on this opinion letter and the opinions provided herein by the law firm Hodgson Russ LLP in connection with the legal opinion provided by that law firm that is in included as an exhibit to the Registration Statement. Additionally, we hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the prospectus contained in the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
* * * * *
CHS/Community Health Systems, Inc.
May 6, 2015
Page 4
This opinion is limited to the matters expressly set forth above, and no opinion is implied or may be inferred beyond the matters expressly so stated. We assume no obligation to advise you of any future changes in the facts or law relating to the matters covered by this opinion.
| Very truly yours, |
| /s/ King & Spalding LLP |
| King & Spalding LLP |
Schedule I
Georgia Guarantors
| Name of Guarantor |
State of Organization | |
| Monroe HMA, LLC |
Georgia | |
| QHG Georgia Holdings, Inc. |
Georgia | |
| QHG Georgia, LP |
Georgia | |
| Winder HMA, LLC |
Georgia |
[LETTERHEAD OF MCGUIREWOODS LLP]
Exhibit 5.8
May 6, 2015
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
4000 Meridian Boulevard
Franklin, Tennessee 37067
Ladies and Gentlemen:
We have acted as special Illinois counsel to the entities listed on Schedule I (each, an “Illinois Subsidiary Guarantor”) in connection with the Illinois Subsidiary Guarantors’ proposed guarantees (collectively, the “Debt Guarantees”) of debt securities (collectively, the “Debt Securities”) to be issued from time to time by Community Health Systems, Inc., a Delaware corporation (“Parent”), or CHS/Community Health Systems, Inc., a Delaware corporation (“CHS/CHS” and, together with Parent, the “Issuers”), pursuant to forms of senior and subordinated notes indentures (collectively, the “Indentures”) that were filed with the Securities and Exchange Commission (the “Commission”) as exhibits to the Issuers’ registration statement on Form S-3 (the “Registration Statement”) on or about May 6, 2015. Defined terms used but not defined in this opinion letter are as defined in the Registration Statement.
In rendering the opinions set forth in this opinion letter, we have examined and relied upon originals or copies (certified or otherwise identified to our satisfaction) of the Registration Statement, the Indentures, and such corporate records, agreements, organizational documents, and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Issuers and the Illinois Subsidiary Guarantors (including a certificate of good standing, dated April 30, 2015, for each Illinois Subsidiary Guarantor issued by the Secretary of State of the State of Illinois (each, a “Certificate of Good Standing”)), and have made such inquiries of such officers and representatives, as we have deemed relevant and necessary as a basis for rendering our opinions.
In rendering the opinions set forth in this opinion letter, we have, with your consent, relied only upon examination of the documents described above and have made no independent verification or investigation of the factual matters set forth in this opinion letter. We did not participate in the negotiation or preparation of the Indentures and have not advised the Issuers or the Illinois Subsidiary Guarantors with respect to such documents or transactions contemplated thereby.
For all purposes of the opinions expressed in this opinion letter, we have assumed, without independent investigation, the following:
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May 6, 2015
Page 2
(a) Factual Matters. As to all questions of fact material to this opinion letter that have not been independently established, we have relied upon certificates or comparable documents of officers and representatives of the Issuers and the Illinois Subsidiary Guarantors and have assumed that such matters remain true and correct through the date of this opinion letter and that all official records (including filings with public authorities) are properly indexed and filed and are accurate and complete.
(b) Signatures. The signatures of individuals signing any documents covered by this opinion letter are genuine and (other than those of the individuals signing on behalf of the Illinois Subsidiary Guarantors) authorized.
(c) Authentic and Conforming Documents. All documents submitted to us as originals are authentic, complete, and accurate, and all documents submitted to us as copies conform to authentic original documents.
(d) Organizational Status, Power and Authority, and Legal Capacity of Certain Parties. All parties to documents covered by this opinion letter are validly existing and in good standing in their respective jurisdictions of formation and have the capacity and full power and authority to execute, deliver, and perform those documents and the documents required or permitted to be delivered and performed thereunder, except that no such assumptions are made as to the Illinois Subsidiary Guarantors. All individuals signing the documents covered by this opinion letter have the legal capacity to execute those documents.
(e) Authorization, Execution, and Delivery of Documents by Certain Parties. All of the documents covered by this opinion letter and the documents required or permitted to be delivered thereunder have been duly authorized by all necessary corporate, limited liability company, partnership, or other action on the part of the parties thereto and have been duly executed and delivered by such parties, except that no such assumptions are made as to the Illinois Subsidiary Guarantors.
(f) Documents Binding on Certain Parties. All of the documents covered by this opinion letter and the documents required or permitted to be delivered thereunder are valid and binding obligations enforceable against the parties thereto in accordance with their terms.
(g) Governmental Approvals. All consents, approvals, and authorizations of, or filings with, all governmental authorities that are required as a condition to the execution and delivery of the documents covered by this opinion letter by the parties thereto and to the consummation by such parties of the transactions contemplated by those documents have been obtained or made.
(h) No Mutual Mistake, Amendments, etc. There has not been any mutual mistake of fact, fraud, duress, or undue influence in connection with the transactions contemplated by the documents covered by this opinion letter. There are no oral or written statements or agreements that modify, amend, or vary (or purport to modify, amend, or vary) any of the terms of the documents covered by this opinion letter.
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May 6, 2015
Page 3
We express no opinion with respect to the following matters:
(a) Enforceability. The validity, binding effect, or enforceability of any documents covered by this opinion letter.
(b) Certain Laws. Any law, rule, or regulation that, as a matter of customary practice, is understood to be covered by an opinion only when the opinion refers to it expressly, including, without limitation, the following laws and regulations promulgated thereunder: securities and Blue Sky laws; local or municipal laws; pension and employee benefit laws; tax laws; health and occupational safety laws; environmental laws; antitrust and unfair competition laws; and laws governing specially regulated industries or specially regulated products or substances.
(c) Noncontravention. Whether the execution and delivery of the documents covered by this opinion letter by any party thereto or the performance by such party of its obligations thereunder will conflict with or result in a breach of any agreement or instrument to which any such party may be a party or by which its properties are subject or bound.
The opinions set forth in this opinion letter are subject to the following additional qualifications and limitations:
(a) Applicable Law. The opinions set forth in this opinion letter are limited to the laws of the State of Illinois as in effect on the date of this opinion letter, and we do not express any opinion concerning the laws of any other jurisdiction, including federal law.
(b) Effect of Certain Laws. The opinions set forth in this opinion letter are subject to and limited by (i) applicable bankruptcy, insolvency (including, without limitation, laws relating to preferences, fraudulent transfers, and equitable subordination), reorganization, moratorium, and other similar laws affecting creditors’ rights and remedies generally; and (ii) general principles of equity, regardless of whether considered in a proceeding in equity or at law.
Subject to the assumptions, exceptions, and limitations set forth in this opinion letter, it is our opinion that:
(1) Based solely upon its Certificate of Good Standing, each Illinois Subsidiary Guarantor is validly existing and in good standing under the laws of the State of Illinois as of the date set forth in its Certificate of Good Standing.
(2) Each Illinois Subsidiary Guarantor has the requisite corporate or limited liability company power and authority to guarantee the Debt Securities pursuant to the terms of the Indentures and to perform its obligations under the Debt Guarantees.
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(3) The Debt Guarantees, upon being duly authorized by all necessary corporate or limited liability company action, executed by an authorized signatory and delivered, will be validly authorized, executed, and delivered for corporate-law or limited liability company-law purposes by each Illinois Subsidiary Guarantor
We hereby consent to any reliance on this opinion letter and the opinions provided in this opinion letter by the law firm Hodgson Russ LLP in connection with the opinion letter provided by that law firm that is in included as an exhibit to the Registration Statement. Additionally, we hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the prospectus contained in the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
| Very truly yours, |
| /s/ MCGUIREWOODS LLP |
CHS/Community Health Systems, Inc.
May 6, 2015
Page 5
SCHEDULE I
to Opinion Letter
Illinois Subsidiary Guarantors
| Name of Illinois Subsidiary Guarantor |
State of Organization | |
| Anna Hospital Corporation |
Illinois | |
| Galesburg Hospital Corporation |
Illinois | |
| Granite City Hospital Corporation |
Illinois | |
| Granite City Illinois Hospital Company, LLC |
Illinois | |
| Marion Hospital Corporation |
Illinois | |
| Red Bud Hospital Corporation |
Illinois | |
| Red Bud Illinois Hospital Company, LLC |
Illinois | |
| Waukegan Hospital Corporation |
Illinois | |
| Waukegan Illinois Hospital Company, LLC |
Illinois |
[LETTERHEAD OF BINGHAM GREENEBAUM DOLL LLP]
Exhibit 5.9
May 6, 2015
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
4000 Meridian Boulevard
Franklin, Tennessee 37067
| Re: | Guaranty by the “Guarantors” (defined below) of Debt Securities |
Ladies and Gentlemen:
We have acted as special counsel in the State of Indiana, the Commonwealth of Kentucky and the State of Ohio (the “States”) for Frankfort Health Partners, Inc., an Indiana corporation, QHG of Cinton County, Inc., an Indiana corporation, Hospital of Fulton, Inc., a Kentucky corporation, Hospital of Louisa, Inc., a Kentucky corporation, Jackson Hospital Corporation, a Kentucky corporation and QHG of Massillon, Inc., an Ohio corporation (collectively, “Guarantors” and individually, a “Guarantor”), in connection with the Guarantors’ proposed guarantees (the “Guarantees”), along with the other guarantors under the Indentures (as defined below), of debt securities (collectively, the “Debt Securities”) to be issued from time to time by Community Health Systems, Inc., a Delaware corporation (“Parent”), or CHS/Community Health Systems, Inc., a Delaware corporation (“CHS/CHS” and, together with Parent, the “Issuers”), pursuant to forms of senior and subordinated notes indentures (collectively, the “Indentures”) that were filed with the Securities and Exchange Commission (the “Commission”) as exhibits to the Issuers’ registration statement on Form S-3 (the “Registration Statement”) on or about May [6], 2015.
In rendering the opinions expressed below, we have examined and relied on originals or copies (certified or otherwise identified to our satisfaction) of the Registration Statement and the Indentures. We have also examined the originals, or duplicates or certified or conformed copies, of such records, agreements, instruments and other documents and have made such other investigations as we have deemed relevant and necessary in connection with the opinions expressed herein including certification of existence for each of the Guarantors and their organizational documents as filed with the respective Secretaries of State and documents presented to us as their respective bylaws.
Based on the foregoing, we are of the opinion that, subject to the assumptions, qualifications and limitations set forth herein:
1. Each Guarantor is a corporation, validly existing under the laws of its jurisdiction of incorporation indicated above.
2. Each Guarantor has the requisite corporate power and authority to guarantee the Debt Securities pursuant to the terms of the Indentures and to perform its obligations under the Debt Guarantees.
Bingham Greenebaum Doll LLP
CHS/Community Health Systems, Inc.
May 6, 2015
Page 2
3. The Debt Guarantees, upon being duly authorized by all necessary corporate action, executed by an authorized signatory and delivered, will be validly authorized, executed, and delivered for corporate law purposes by each Guarantor.
In rendering the opinion set forth above, we have further assumed, without independent investigation, the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies, the authenticity of the originals of such latter documents, that persons purporting to act on behalf of any Guarantor occupy the position which they purport to occupy and that facts recited in any of such documents are true and correct. In our review and in preparing and rendering this opinion, we have found no reason to believe that any of such stated facts upon which we have relied in rendering this opinion are not correct.
Our opinions above are subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditor’s rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law), (iii) the exercise of judicial discretion in accordance with principles of equity and (v) an implied covenant of good faith and fair dealing.
We are members of the respective Bar of each of the States, and we do not express any opinion herein concerning any law other than the law of the States.
This opinion is rendered as of the date of this letter, and we express no opinion as to circumstances or events which may occur subsequent to such date. This opinion is rendered to you in connection with the transactions described above. We hereby consent to any reliance on this opinion letter and the opinions provided herein by the law firm Hodgson Russ LLP in connection with the legal opinion provided by that law firm that is in included as an exhibit to the Registration Statement. Additionally, we hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the prospectus contained in the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
Very truly yours,
BINGHAM GREENEBAUM DOLL LLP
/s/ Bingham Greenebaum Doll LLP
[LETTERHEAD OF HUSCH BLACKWELL LLP]
Exhibit 5.10
May 6, 2015
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
4000 Meridian Boulevard
Franklin, Tennessee 37067
Ladies and Gentlemen:
We have acted as special Missouri counsel to the entities listed on Schedule I (collectively, the “Missouri Subsidiary Guarantors”), in connection with the Missouri Subsidiary Guarantors’ proposed guarantees (collectively, the “Debt Guarantees”) of debt securities (collectively, the “Debt Securities”) to be issued from time to time by Community Health Systems, Inc., a Delaware corporation (“Parent”), or CHS/Community Health Systems, Inc., a Delaware corporation (“CHS/CHS” and, together with Parent, the “Issuers”), pursuant to forms of senior and subordinated notes indentures (collectively, the “Indentures”) that were filed with the Securities and Exchange Commission (the “Commission”) as exhibits to the Issuers’ registration statement on Form S-3 (the “Registration Statement”) on or about May 6, 2015.
In rendering our opinions herein, we have, with your approval, relied with respect to factual matters, upon and assumed the accuracy of, the Officers’ Certificate (defined below), and certificates of public officials referred to below (the “Public Documents”). In addition thereto, we have reviewed and relied upon such records, documents, certificates and other instruments as in our judgment are necessary or appropriate to form the basis for rendering our opinions, including, without limitation, the following:
(i) the articles of formation and limited liability company agreement for each Missouri Subsidiary Guarantor;
(ii) the certificate with respect to various factual matters signed by an officer of each of the Missouri Subsidiary Guarantors and dated the date of this opinion (the “Officers’ Certificate”);
(iii) Certificate of Good Standing for each Missouri Subsidiary Guarantor dated May 1, 2015 (collectively, the “Certificates of Good Standing”);
(iv) the Registration Statement;
(v) the Debt Securities;
(vi) the Debt Guarantees; and
| May 6, 2015 Page 2 |
(vii) the Indentures.
Further, our opinions are based on the assumptions (upon which we have relied with your consent) and subject to the qualifications and limitations, set forth in this letter, including the following:
(a) We express no opinion as to any laws other than the laws of the state of Missouri. We express no opinion as to the effect on the issuance of the Debt Securities, the Debt Guarantees, and the execution and delivery of the Indentures (collectively, the “Transactions”) of local law which shall include charters, ordinances, administrative opinions and rules and regulations of cities, counties, towns, municipalities and special political subdivisions (whether created or enabled through legislative action at the federal, state or regional level).
(b) We have assumed for purposes of this opinion that: (1) each natural person executing any of the Indentures is legally competent; (2) all signatures on the Indentures are genuine, the Indentures submitted to us as copies conform to the originals; (3) all Indentures, all Debt Securities, and all Debt Guarantees are complete or will be correctly and appropriately completed (including, without limitation, all blanks and exhibits thereto); (4) any certifications dated prior to the date hereof remain true as of the date hereof; (5) each Public Document is accurate, complete and authentic and all official public records are accurate and complete; and (6) there are no agreements or understandings among the parties, written or oral, and there is no usage of trade or course of prior dealing among the parties that would, in either case, define, supplement or qualify the terms of the Indentures, the Debt Securities, or the Debt Guarantees.
(c) The opinions in this letter do not include any opinions as to enforceability of the Debt Securities, the Debt Guarantees, or the Indentures against the Missouri Subsidiary Guarantors or any other party.
(d) As to matters of fact, we have assumed all representations of the Issuers, the Missouri Subsidiary Guarantors, and any other parties in the transaction documents referenced above are accurate.
(e) Our opinions with respect to laws of the State of Missouri do not include any opinion with respect to pension and employee benefit laws and regulations, antitrust and unfair competition laws and regulations, tax laws and regulations, health and safety laws and regulations, labor laws and regulations, securities laws and regulations, or environmental laws, regulations and codes.
(f) We express no opinion herein with respect to the effects of the execution, delivery, and performance of the Indentures, the Debt Guarantees, or the Debt Securities on the rights of third parties.
| May 6, 2015 Page 3 |
Subject to the assumptions, exceptions and limitations hereinabove and hereinafter stated, it is our opinion that:
(1) Each Missouri Subsidiary Guarantor is validly existing under the laws of the State of Missouri.
(2) Each Missouri Subsidiary Guarantor has the requisite limited liability company power to guarantee the Debt Securities pursuant to the terms of the Indentures and to perform its obligations under the Debt Guarantees.
(3) The Debt Guarantees, upon being duly authorized by all necessary limited liability company action, executed by an authorized signatory and delivered, will be validly authorized, executed and delivered for limited liability company law purposes by each Missouri Subsidiary Guarantor.
This opinion is limited to the matters specifically stated in this letter, and no further opinion is to be implied or may be inferred beyond the opinions specifically stated herein. Unless otherwise stated herein, we have made no independent investigation regarding factual matters. This opinion is based solely on the state of the law as of the date of this opinion, and the factual matters in existence as of such date, and we specifically disclaim any obligation to monitor any of the matters stated in this opinion or to advise the persons entitled to rely on this opinion of any change in law or fact after the date of this opinion which might affect any of the opinions stated herein.
We hereby consent to the reliance on this opinion letter and the opinions provided herein by the law firm Hodgson Russ LLP in connection with the legal opinion provided by that law firm that is included as an exhibit to the Registration Statement. Additionally, we hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to reference our firm under the heading “Legal Matters” in the prospectus contained in the Registration Statement. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
| Yours very truly, |
| /s/ Husch Blackwell LLP |
[LETTERHEAD OF HUSCH BLACKWELL LLP]
Schedule I
Guarantors
| Name of Guarantor |
State of Organization | |
| Kennett HMA, LLC | Missouri | |
| Poplar Bluff Regional Medical Center, LLC | Missouri |
Exhibit 5.11
[Letterhead of Ballard Spahr LLP]
May 6, 2015
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
4000 Meridian Boulevard
Franklin, Tennessee 37067
Ladies and Gentlemen:
We have acted as New Jersey counsel to Salem Hospital Corporation, a New Jersey corporation (the “NJ Guarantor”), Pennsylvania counsel to Clinton Hospital Corporation, a Pennsylvania corporation (“Clinton”), Coatesville Hospital Corporation, a Pennsylvania corporation (“Coatesville”) and Carlisle HMA, LLC, a Pennsylvania limited liability company (“Carlisle” and, together with Clinton and Coatesville, the “PA Guarantors”), and Utah counsel to Tooele Hospital Corporation, a Utah corporation (the “UT Guarantor”), in connection with the proposed guarantees by the NJ Guarantor, the PA Guarantors and the UT Guarantor (collectively, the “Debt Guarantees”) of debt securities (collectively, the “Debt Securities”) to be issued from time to time by Community Health Systems, Inc., a Delaware corporation (“Parent”), or CHS/Community Health Systems, Inc., a Delaware corporation (“CHS/CHS” and, together with Parent, the “Issuers”), pursuant to forms of senior and subordinated notes indentures (collectively, the “Indentures”) that were filed with the Securities and Exchange Commission (the “Commission”) as exhibits to the Issuers’ registration statement on Form S-3 (the “Registration Statement”) on or about May 6, 2015.
In rendering the opinions set forth herein, we have examined and relied on originals or copies (certified or otherwise identified to our satisfaction) of the Registration Statement, the Indentures, and such corporate records, agreements, organizational documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Issuers, the NJ Guarantor, the PA Guarantors and the UT Guarantor and have made such inquiries of such officers and representatives, as we have deemed relevant and necessary as a basis for the opinion hereinafter set forth.
In rendering the opinions set forth below, we have, with your consent, relied only upon examination of the documents described above and have made no independent verification or investigation of the factual matters set forth herein. We did not participate in the negotiation or preparation of the Indentures and have not advised the Issuers or the NJ Guarantor, the PA Guarantors or the UT Guarantor with respect to such documents or transactions contemplated thereby.
In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity
to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such copies. As to all questions of fact material to this opinion letter that have not been independently established, we have relied upon certificates or comparable documents of officers and representatives of the Issuers and the NJ Guarantor, the PA Guarantors and the UT Guarantor and have assumed that such matters remain true and correct through the date hereof.
Based on the foregoing, and subject to the assumptions, limitations and qualifications set forth herein, we are of the opinion that:
1. Based solely on the good standing certificate dated May 5, 2015 issued by the State of New Jersey, the NJ Guarantor is validly existing under the laws of the State of New Jersey.
2. The NJ Guarantor has the requisite corporate power and authority to guarantee the Debt Securities pursuant to the terms of the Indentures and to perform its obligations under the Debt Guarantees.
3. The Debt Guarantees, upon being duly authorized by all necessary corporate action, executed by an authorized signatory and delivered, will be validly authorized, executed, and delivered for corporate law purposes by the NJ Guarantor.
4. Based solely on the subsistence certificates dated May 5, 2015 issued by the Commonwealth of Pennsylvania, each PA Guarantor is a corporation or limited liability company presently subsisting under the laws of the Commonwealth of Pennsylvania.
5. Each PA Guarantor has the requisite corporate or limited liability company power and authority to guarantee the Debt Securities pursuant to the terms of the Indentures and to perform its obligations under the Debt Guarantees.
6. The Debt Guarantees, upon being duly authorized by all necessary corporate action, executed by an authorized signatory and delivered, will be validly authorized, executed, and delivered for corporate or limited liability company law purposes by each PA Guarantor.
7. Based solely on the good standing certificate dated May 5, 2015 issued by the State of Utah, the UT Guarantor is validly existing under the laws of the State of Utah.
8. The UT Guarantor has the requisite corporate power and authority to guarantee the Debt Securities pursuant to the terms of the Indentures and to perform its obligations under the Debt Guarantees.
9. The Debt Guarantees, upon being duly authorized by all necessary corporate action, executed by an authorized signatory and delivered, will be validly authorized, executed, and delivered for corporate law purposes by the UT Guarantor.
The opinions expressed herein are limited in all respects to the laws of the State of New Jersey, the Commonwealth of Pennsylvania and the State of Utah as in effect on the date hereof. We express no opinion as to the laws of any other jurisdiction.
2
We hereby consent to any reliance on this opinion letter and the opinions provided herein by the law firm Hodgson Russ LLP in connection with the legal opinion provided by that law firm that is in included as an exhibit to the Registration Statement. Additionally, we hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the prospectus contained in the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
This opinion letter is limited to the matters expressly stated herein. No implied opinion may be inferred to extend this opinion letter beyond the matters expressly stated herein. We do not undertake to advise you or anyone else of any changes in the opinions expressed herein resulting from changes in law, changes in facts or any other matters that hereafter might occur or be brought to our attention.
| Very truly yours, |
| /s/ Ballard Spahr LLP |
3
[LETTERHEAD OF MONTGOMERY & ANDREWS, P.A.]
Exhibit 5.12
May 6, 2015
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
4000 Meridian Boulevard
Franklin, Tennessee 37067
Ladies and Gentlemen:
We have acted as special New Mexico counsel to the entities listed on Schedule I (collectively, the “New Mexico Subsidiary Guarantors”), in connection with the New Mexico Subsidiary Guarantors’ proposed guarantees (collectively, the “Debt Guarantees”) of debt securities (collectively, the “Debt Securities”) to be issued from time to time by Community Health Systems, Inc., a Delaware corporation (“Parent”), or CHS/Community Health Systems, Inc., a Delaware corporation (“CHS/CHS” and, together with Parent, the “Issuers”), pursuant to forms of senior and subordinated notes indentures (collectively, the “Indentures”) that were filed with the Securities and Exchange Commission (the “Commission”) as exhibits to the Issuers’ registration statement on Form S-3 (the “Registration Statement”) on or about May [6], 2015.
In rendering the opinions set forth herein, we have examined and relied on originals or copies (certified or otherwise identified to our satisfaction) of the Registration Statement, the Indentures, the Certificate of Rachel A. Seifert with Respect to Various Factual Matters, Certificates of Good Standing, and such corporate records, agreements, organizational documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Issuers and the New Mexico Subsidiary Guarantors (the “Documents”), and have made such inquiries of such officers and representatives, as we have deemed relevant and necessary as a basis for the opinion hereinafter set forth.
In rendering the opinions set forth below, we have, with your consent, relied only upon examination of the documents described above and have made no independent verification or investigation of the factual matters set forth herein. We did not participate in the negotiation or preparation of the Indentures and have not advised the Issuers or the New Mexico Subsidiary Guarantors with respect to such documents or transactions contemplated thereby.
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
May 6, 2015
Page 2
For the purposes of this opinion, we have assumed the genuiness of all signatures of persons signing all documents in connection with which this opinion is rendered, the legal capacity of natural persons, and the authority of such persons signing on behalf of the parties thereto other than the New Mexico Subsidiary Guarantors. We have additionally assumed as follows:
1. Each party to the agreements covered by this opinion (other than the New Mexico Subsidiary Guarantors) has satisfied those legal requirements that are applicable to it to the extent necessary to make such agreements enforceable against it.
2. Each party to the agreements covered by in this opinion (other than the New Mexico Subsidiary Guarantors) has legal existence.
3. The agreements covered by this opinion have been duly authorized by all necessary corporate/limited liability company/partnership or other action on the part of all parties (other than the New Mexico Subsidiary Guarantors) and have been duly executed and delivered by, and are valid as to, binding upon and enforceable against all such other parties.
4. Persons acting on behalf of the parties to the documents referred to in this opinion (other than the New Mexico Subsidiary Guarantors), including agents and fiduciaries, are duly authorized to act in that capacity.
5. Each document submitted to us for review is accurate and complete, each such document that is a copy conforms to an authentic original, and all signatures on each such document are genuine.
6. Each Document is accurate, complete and authentic and all official public records (including their proper indexing and filing) are accurate and complete.
7. There has been no mutual mistake of fact or misunderstanding, fraud, duress or undue influence.
8. The conduct of the parties to the agreements covered by this opinion has complied with any requirement of good faith, fair dealing and conscionability.
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
May 6, 2015
Page 3
Based on the foregoing, and subject to the assumptions, limitations and qualifications set forth herein, we are of the opinion that:
1. Each of the New Mexico Subsidiary Guarantors is validly existing under the laws of the State of New Mexico.
2. Each of the New Mexico Subsidiary Guarantors has the requisite corporate power and authority to guarantee the Debt Securities pursuant to the terms of the Indentures and to perform its obligations under the Debt Guarantees.
3. The Debt Guarantees, upon being duly authorized by all necessary corporate action, executed by an authorized signatory and delivered, will be validly authorized, executed, and delivered for corporate law purposes by each New Mexico Subsidiary Guarantor.
The opinions expressed herein are limited in all respects to the laws of the State of New Mexico as in effect on the date hereof. We express no opinion as to the laws of any other jurisdiction.
We hereby consent to any reliance on this opinion letter and the opinions provided herein by the law firm Hodgson Russ LLP in connection with the legal opinion provided by that law firm that is in included as an exhibit to the Registration Statement. Additionally, we hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the prospectus contained in the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
| Very truly yours, | ||
| MONTGOMERY & ANDREWS, P.A. | ||
| By: |
/s/ Suzanne C. Odom | |
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
May 6, 2015
Page 4
Schedule I
New Mexico Subsidiary Guarantors
Deming Hospital Corporation
Roswell Hospital Corporation
San Miguel Hospital Corporation
[LETTERHEAD OF BAILEY KENNEDY, LLP]
Exhibit 5.13
May 6, 2015
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
4000 Meridian Boulevard
Franklin, Tennessee 37067
| Re: | Debt Guarantees of Debt Securities by NC-DSH, LLC |
Ladies and Gentlemen:
We have acted as special Nevada counsel for the Nevada limited liability company listed on Schedule I hereto (the “Nevada Subsidiary Guarantor”), in connection with the Nevada Subsidiary Guarantor’s proposed guarantee (the “Debt Guarantees”), along with the other guarantors under the Indentures (as defined below), of debt securities (the “Debt Securities”) to be issued from time to time by Community Health Systems, Inc., a Delaware corporation (“Parent”), or CHS/Community Health Systems, Inc., a Delaware corporation (“CHS/CHS” and, together with Parent, the “Issuers”), pursuant to forms of senior and subordinated Debt Securities indentures (collectively, the “Indentures”) as filed with the Securities and Exchange Commission (the “Commission”) as exhibits to the Issuers’ registration statement on Form S-3 (the “Registration Statement”) on or about May 6, 2015.
Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Indentures.
In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the:
| 1. | Registration Statement. |
| 2. | Indentures. |
| 3. | Debt Securities in the form included in the Indentures. |
| 4. | Terms of the Debt Guarantees as contained in the Indentures. |
In rendering the opinions set forth below, we have, with your consent, relied only upon examination of the documents described above and have made no independent verification or investigation of the factual matters set forth herein. We did not participate in the negotiation or preparation of the Indentures and have not advised the Issuers or the Nevada Subsidiary Guarantor with respect to such documents or transactions contemplated thereby.
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
May 6, 2015
Page 2
As to all questions of fact material to this opinion letter that have not been independently established, we have relied upon certificates or comparable documents of public officials and officers and representatives of the Issuers and the Nevada Subsidiary Guarantor and have assumed that such matters remain true and correct through the date hereof. We have not reviewed, and express no opinion as to, any instrument or agreement referred to or incorporated by reference in the Indentures.
We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of natural persons and the conformity to originals of all copies of all documents submitted to us.
We assume that neither the Company nor the Nevada Subsidiary Guarantor is engaged in Nevada in any of the following businesses: gaming business, liquor distribution business, financial institution, public utility, insurance business, or cemetery business.
Based upon the foregoing and subject to the following it is our opinion that:
1. The Nevada Subsidiary Guarantor validly exists under the laws of Nevada.
2. The Nevada Subsidiary Guarantor has the requisite limited liability company power and authority to guarantee the Debt Securities pursuant to the terms of the Indentures and to perform its obligations under the Debt Guarantees.
3. The Debt Guarantees, upon being duly authorized by all necessary limited liability company action, executed by an authorized signatory and delivered, will be validly authorized, executed, and delivered for limited liability law purposes by the Nevada Subsidiary Guarantor.
We express no opinion as to the laws of any jurisdiction other than those of Nevada.
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
May 6, 2015
Page 3
We hereby consent to any reliance on this opinion letter and the opinions provided herein by the law firm Hodgson Russ LLP in connection with the legal opinion provided by that law firm that is in included as an exhibit to the Registration Statement. Additionally, we hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the prospectus contained in the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
| Very truly yours, |
| /s/ Bailey Kennedy, LLP |
| Bailey Kennedy, LLP |
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
May 6, 2015
Page 4
Schedule I
NC-DSH, LLC, a Nevada limited liability company
[LETTERHEAD OF MCAFEE & TAFT A PROFESSIONAL CORPORATION]
Exhibit 5.14
May 6, 2015
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
4000 Meridian Boulevard
Franklin, Tennessee 37067
Ladies and Gentlemen:
We have acted as Oklahoma counsel to the entities listed on Schedule I (collectively, the “Oklahoma Subsidiary Guarantors”), in connection with the State Subsidiary Guarantors’ proposed guarantees (collectively, the “Debt Guarantees”) of debt securities (collectively, the “Debt Securities”) to be issued from time to time by Community Health Systems, Inc., a Delaware corporation (“Parent”), or CHS/Community Health Systems, Inc., a Delaware corporation (“CHS/CHS” and, together with Parent, the “Issuers”), pursuant to forms of senior and subordinated notes indentures (collectively, the “Indentures”) that were filed with the Securities and Exchange Commission (the “Commission”) as exhibits to the Issuers’ registration statement on Form S-3 (the “Registration Statement”) on or about May 6, 2015.
In rendering the opinions in this letter, we have examined and relied on originals or copies (certified or otherwise identified to our satisfaction) of the Registration Statement, the Indentures, and such corporate and limited liability company records, agreements, organizational documents, and other instruments, and such certificates or comparable documents of public officials and of officers, directors, and member of the Oklahoma Subsidiary Guarantors, and have made such inquiries of such officers and representatives, as we have deemed relevant and necessary as a basis for the opinions.
In rendering the opinions, we have, with your consent, relied only upon examination of the documents described above and have made no independent verification or investigation of the factual matters stated in the documents and this letter. We did not participate in the negotiation or preparation of the Indentures and have not advised the Issuers or the Oklahoma Subsidiary Guarantors with respect to such documents or transactions contemplated thereby.
In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or copies and the authenticity of the originals of such copies. As to all questions of fact material to the opinions expressed in this letter, we have relied upon certificates or comparable documents of officers, directors, and member of the Oklahoma Subsidiary Guarantors and have assumed that such matters remain true and correct through the date hereof.
Based on the foregoing, and subject to the assumptions, limitations, and qualifications in this letter, we are of the opinion that:
1. Each of the Oklahoma Subsidiary Guarantors is validly existing under the laws of the State of Oklahoma.
2. Each of the Oklahoma Subsidiary Guarantors has the requisite corporate or limited liability company power and authority to guarantee the Debt Securities pursuant to the terms of the Indentures and to perform its obligations under the Debt Guarantees.
3. The Debt Guarantees, upon being duly authorized by all necessary corporate or limited liability company action, executed by an authorized signatory and delivered, will be validly authorized, executed, and delivered for corporate or limited liability company law purposes by each Oklahoma Subsidiary Guarantor.
The opinions expressed in this letter are limited in all respects to the laws of the State of Oklahoma as in effect on the date of this letter. We express no opinion as to the laws of any other jurisdiction.
The opinion in 1 above is based solely on our review of certificates of good standing and copies of certificates of incorporation, certificate of limited liability company, and articles of organization for the Oklahoma Subsidiary Guarantors as certified by the Oklahoma Secretary of State.
We have assumed that Kay County Hospital Corporation is a wholly owned subsidiary of Parent and the execution, delivery, and performance of the Debt Guarantees are necessary or convenient to the conduct, promotion, or attainment of the business of Kay County Hospital Corporation.
The qualifications, limitations, assumptions, and exceptions in this letter are material to the opinions expressed in this letter, and the inaccuracy of any assumptions could render these opinions inaccurate.
We have prepared this opinion letter in accordance with customary practice for the preparation and interpretation of opinions of this type. We have assumed, and your acceptance of this letter shall confirm, that you (alone or with your counsel) are familiar with this customary practice.
We hereby consent to any reliance on this opinion letter and the opinions provided herein by the law firm Hodgson Russ LLP in connection with the legal opinion provided by that law firm that is in included as an exhibit to the Registration Statement. Additionally, we hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the prospectus contained in the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
| Very truly yours, |
| /s/ McAfee & Taft A Professional Corporation |
-2-
Schedule I
Oklahoma Subsidiary Guarantors
Blackwell HMA, LLC
Clinton HMA, LLC
Kay County Hospital Corporation
Kay County Oklahoma Hospital Company, LLC
Marshall County HMA, LLC
Mayes County HMA, LLC
Seminole HMA, LLC
[LETTERHEAD OF PARKER POE ADAMS & BERNSTEIN LLP]
Exhibit 5.15
May 6, 2015
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
4000 Meridian Boulevard
Franklin, Tennessee 37067
Ladies and Gentlemen:
We have acted as special South Carolina counsel to the entities listed on Schedule I (each a “South Carolina Subsidiary Guarantor” and collectively, the “South Carolina Subsidiary Guarantors”) in connection with the South Carolina Subsidiary Guarantors’ proposed guarantees (collectively, the “Debt Guarantees”) of debt securities (collectively, the “Debt Securities”) to be issued from time to time by Community Health Systems, Inc., a Delaware corporation (“Parent”), or CHS/Community Health Systems, Inc., a Delaware corporation (“CHS/CHS” and, together with Parent, the “Issuers”), pursuant to forms of senior and subordinated notes indentures (collectively, the “Indentures”) that were filed with the Securities and Exchange Commission (the “Commission”) as exhibits to the Issuers’ registration statement on Form S-3 (the “Registration Statement”) on or about May 6, 2015.
For purposes of rendering this opinion, we have examined and relied on originals or copies (certified or otherwise identified to our satisfaction) of the following documents:
(1) the articles of incorporation, bylaws, and amended and restated operating agreement, as applicable, for each South Carolina Guarantor (the “Organizational Documents”);
(2) the certificate with respect to various factual matters signed by Rachel A. Seifert, as Secretary of each South Carolina Guarantor and dated the date of this opinion (the “Secretary’s Certificate”);
(3) a Certificate of Existence dated April 24, 2015, issued for each South Carolina Guarantor by the South Carolina Secretary of State, indicating that each South Carolina Guarantor is in good standing in South Carolina (“Certificates of Existence”);
(4) the Registration Statement;
(5) the Debt Guarantees; and
(6) the Indentures.
PARKER POE ADAMS & BERNSTEIN LLP
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
May 6, 2015
Page 2 of 4
The documents referenced in items 1 through 6 above are collectively referred to hereinafter as the “Opinion Documents”. In rendering the opinions set forth below, we have, with your consent, relied only upon examination of the documents described above and have made no independent verification or investigation of the factual matters set forth herein. We did not participate in the negotiation or preparation of the Indentures and have not advised the Issuers or the South Carolina Subsidiary Guarantors with respect to such documents or transactions contemplated thereby.
In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such copies. As to all questions of fact material to this opinion letter that have not been independently established, we have relied upon the Secretary’s Certificate and/or comparable documents of officers and representatives of the Issuers and the South Carolina Subsidiary Guarantors and have assumed there has been no change in the information provided to us since the date such information was first provided and that such information was true and correct on the date on which it was provided and that it is true and correct on the date hereof.
Based on the foregoing, and subject to the assumptions, limitations and qualifications set forth herein, we are of the opinion that:
(a) Each South Carolina Subsidiary Guarantor is validly existing under the laws of the State of South Carolina.
(b) Each South Carolina Subsidiary Guarantor has the requisite corporate or limited liability company power, as applicable, to guarantee the Debt Securities pursuant to the terms of the Indentures and to perform its obligations under the Debt Guarantees.
(c) The Debt Guarantees, upon being duly authorized by all necessary corporate or limited liability company action, as applicable, executed by an authorized signatory and delivered, will be validly authorized, executed, and delivered for corporate or limited liability company law purposes by each South Carolina Subsidiary Guarantor.
We render this opinion with respect to the laws of the State of South Carolina and only with respect to those laws. We express no opinion with respect to the laws of a state other than South Carolina.
We hereby consent to any reliance on this opinion letter and the opinions provided herein by the law firm Hodgson Russ LLP in connection with the legal opinion provided by that law firm that is in included as an exhibit to the Registration Statement. Additionally, we hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the
PARKER POE ADAMS & BERNSTEIN LLP
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
May 6, 2015
Page 3 of 4
reference to our firm under the heading “Legal Matters” in the prospectus contained in the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
We do not undertake to advise you of any matters that might hereinafter arise that would affect the opinions expressed herein. Our opinion is limited to the matters expressly stated herein and no other opinion may be implied or inferred.
| Very truly yours, |
| /s/ Parker Poe Adams & Bernstein LLP |
| Parker Poe Adams & Bernstein LLP |
Enc.
Schedule “I”
List of South Carolina Guarantors
Chester HMA, LLC
QHG of South Carolina, Inc.
QHG of Spartanburg, Inc.
[LETTERHEAD OF LIECHTY & MCGINNIS, LLP]
Exhibit 5.16
| EMMETT BERRYMAN |
May 6, 2015 | SENDER’S E-MAIL: | ||
| eberryman@lmlawyers.com |
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
4000 Meridian Boulevard
Franklin, Tennessee 37067
Ladies and Gentlemen:
We have acted as special Texas counsel to the entities listed on Schedule I (collectively, the “Texas Subsidiary Guarantors”), in connection with the Texas Subsidiary Guarantors’ proposed guarantees (collectively, the “Debt Guarantees”) of debt securities (collectively, the “Debt Securities”) to be issued from time to time by Community Health Systems, Inc., a Delaware corporation (“Parent”), or CHS/Community Health Systems, Inc., a Delaware corporation (“CHS/CHS” and, together with Parent, the “Issuers”), pursuant to forms of senior and subordinated notes indentures (collectively, the “Indentures”) that were filed with the Securities and Exchange Commission (the “Commission”) as exhibits to the Issuers’ registration statement on Form S-3 (the “Registration Statement”) on or about May 6, 2015.
In rendering our opinions herein, we have relied with respect to factual matters, solely upon the Officers’ Certificates (defined below), and certificates of public officials referred to below. In addition thereto, we have reviewed and relied upon such records, documents, certificates and other instruments as in our judgment are necessary or appropriate to form the basis for rendering our opinions, including, without limitation, the following:
| (a) | Certificate of Incorporation of Big Bend Hospital Corporation; |
| (b) | Bylaws of Big Bend Hospital Corporation; |
| (c) | Certificate of Incorporation of Big Spring Hospital Corporation; |
| (d) | Bylaws of Big Spring Hospital Corporation; |
| (e) | Certificate of Incorporation of Granbury Hospital Corporation; |
| (f) | Bylaws of Granbury Hospital Corporation; |
| (g) | Certificate of Incorporation of Jourdanton Hospital Corporation; |
| (h) | Bylaws of Jourdanton Hospital Corporation; |
| (i) | Certificate of Incorporation of Weatherford Hospital Corporation; |
| (j) | Bylaws of Weatherford Hospital Corporation; |
| (k) | Certificate of Formation of Weatherford Texas Hospital Company, LLC; |
| (l) | Operating Agreement of Weatherford Texas Hospital Company, LLC; |
| (m) | the Corporate Status Certificates (as defined in subpart (iii) below); |
| (n) | the LLC Status Certificates (as defined in subpart (iv) below); and |
| (o) | the Evidences (as defined in subpart (v) below). |
Items (a) through (o) above are collectively referred to herein as the “Corporate Documents.”
In addition we have examined and relied upon the following:
(i) with respect to each Texas Subsidiary Guarantor that is a corporation, certificates from the Secretary of such Texas Subsidiary Guarantor certifying in each instance as to true and correct copies of the articles of incorporation and bylaws of such Texas Subsidiary Guarantor and resolutions of the board of directors of such Texas Subsidiary Guarantor authorizing the guarantees by such Texas Subsidiary Guarantor to guarantee the Debt Securities pursuant to the terms of the Indentures and to perform their obligations under the Debt Guarantees (each a “Corporate Officers’ Certificate”);
(ii) with respect to each Texas Subsidiary Guarantor that is a limited liability company, certificates from the Secretary of such Texas Subsidiary Guarantor certifying in each instance as to true and correct copies of the certificate of formation and limited liability company agreement of such Texas Subsidiary Guarantor and resolutions of the sole member of such Texas Subsidiary Guarantor authorizing the Guarantees by such Texas Subsidiary Guarantor to guarantee the Debt Securities pursuant to the terms of the Indentures and to perform their obligations under the Debt Guarantees (each a “LLC Officers’ Certificate” and, together with the Corporate Officers’ Certificates, the “Officers’ Certificates”);
(iii) with respect to each Texas Subsidiary Guarantor that is a corporation, a certificate dated April 28, 2015 issued by the Office of the Secretary of State of Texas, attesting to the corporate status of such Texas Subsidiary Guarantor in Texas (collectively, the “Corporate Status Certificates”);
(iv) with respect to each Texas Subsidiary Guarantor that is a limited liability company, a certificate dated April 28, 2015, issued by the Office of the Secretary of State of Texas, attesting to the limited liability company status of such Texas Subsidiary Guarantor in Texas (collectively, the “LLC Status Certificates”);
(v) with respect to each Texas Subsidiary Guarantor, evidence of franchise tax account status, dated April 29, 2015, from the Comptroller of Public Accounts of the State of Texas (collectively, the “Evidences”); and
(vi) originals, or copies identified to our satisfaction as being true copies, of such other records, documents and instruments as we have deemed necessary for the purposes of this opinion letter.
(vii) In rendering the opinions set forth below, we have, with your consent, relied only upon examination of the documents described above and have made no independent verification or investigation of the factual matters set forth herein or therein. We did not participate in the negotiation or preparation of the Registration Statement or the Indentures and have not advised the Issuers or the Texas Subsidiary Guarantors with respect to such documents or transactions contemplated thereby.
(viii) With your permission, as to questions of fact material to this Opinion and without independent verification with respect to the accuracy of such factual matters, we have relied upon the Registration Statement, the Indentures, certificates of public officials and of officers and representatives of the Issuers and the Texas Subsidiary Guarantors and the accuracy of the public record. We have made no independent investigation of any statements, warranties and representations made by the Texas Subsidiary Guarantors in the Indentures or any related matters. With the exception of the Corporate Documents, we have not examined the books and records of the Texas Subsidiary Guarantors.
Assumptions Underlying Our Opinions
For purposes of this Opinion, we have assumed, with your approval and without independent investigation, the following:
(a) No fraud, mistake, undue influence, duress or criminal activity exists with respect to the Corporate Documents, Registration Statement, Indentures or any of the matters relevant to the opinions rendered herein;
(b) The genuineness of all signatures;
(c) The legal capacity of natural persons;
(d) The authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies; and
(e) The authenticity of the originals of such copies.
As to all questions of fact material to this opinion letter that have not been independently established, we have relied upon certificates or comparable documents of officers and representatives of the Issuers and the Texas Subsidiary Guarantors and have assumed that such matters remain true and correct through the date hereof.
Our Opinions
Subject to the assumptions, exceptions and limitations hereinabove and hereinafter stated, it is our opinion that:
(1) Based solely upon its Corporate Status Certificate and the applicable Evidence, each Texas Subsidiary Guarantor identified herein as a Texas corporation is a validly existing corporation under the laws of the State of Texas. Based solely upon its LLC Status Certificate and the applicable Evidence, each Texas Subsidiary Guarantor identified herein as a limited liability company is a validly existing limited liability company under the laws of the State of Texas.
(2) Each Texas Subsidiary Guarantor has the requisite corporate or limited liability company, as applicable, power and authority to guarantee the Debt Securities pursuant to the terms of the Indentures and to perform its obligations under the Debt Guarantees.
(3) The Debt Guarantees, upon being duly authorized by all necessary corporate or limited liability company action, as applicable, executed by an authorized signatory and delivered, will be validly authorized, executed, and delivered for corporate or limited liability company law purposes, as applicable, by each Texas Subsidiary Guarantor.
Qualifications and Limitations
This letter expresses our legal opinion as to the foregoing matters based on our professional judgment at this time based solely upon laws, rulings and regulations in effect on the date hereof; it is not, however, to be construed as a guaranty, nor is it a warranty that a court considering such matters would not rule in a manner contrary to the opinions set forth above.
We are qualified to practice law in the State of Texas, and we express no opinions as to the laws of other jurisdictions other than to the laws of the State of Texas, as currently in effect. We assume no obligation to supplement this opinion if any applicable laws change after the date hereof or if we become aware of any facts that might change the opinions expressed herein after the date hereof.
Miscellaneous
We hereby consent to any reliance on this opinion letter and the opinions provided herein by the law firm Hodgson Russ LLP in connection with the legal opinion provided by that law firm that is in included as an exhibit to the Registration Statement. Additionally, we hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the prospectus contained in the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
| Very truly yours, | ||
| LIECHTY & McGINNIS, LLP, | ||
| a Texas limited liability partnership | ||
| By: | /s/ Emmett W. Berryman | |
| Emmett W. Berryman, Partner | ||
Schedule I
Texas Subsidiary Guarantors
| Name of Texas Subsidiary Guarantor |
State of Organization | |
| Big Bend Hospital Corporation |
TX | |
| Big Spring Hospital Corporation |
TX | |
| Granbury Hospital Corporation |
TX | |
| Jourdanton Hospital Corporation |
TX | |
| Weatherford Hospital Corporation |
TX | |
| Weatherford Texas Hospital Company, LLC |
TX |
[LETTERHEAD OF HANCOCK, DANIEL, JOHNSON & NAGLE, P.C.]
Exhibit 5.17
May 6, 2015
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
4000 Meridian Boulevard
Franklin, Tennessee 37067
| RE: | Form S-3 Registration Statement |
Ladies and Gentlemen:
We have acted as special Virginia counsel to the entities listed on Schedule A (collectively, the “Virginia Subsidiary Guarantors”), in connection with the Virginia Subsidiary Guarantors’ proposed guarantees (collectively, the “Debt Guarantees”) of debt securities (collectively, the “Debt Securities”) to be issued from time to time by Community Health Systems, Inc., a Delaware corporation (“Parent”), or CHS/Community Health Systems, Inc., a Delaware corporation (“CHS/CHS” and, together with Parent, the “Issuers”), pursuant to forms of senior notes indentures (the “Senior Notes Indentures”) and forms of subordinated notes indentures (the “Subordinated Notes Indentures”, and together with the Senior Notes Indentures the “Indentures”) that were filed with the Securities and Exchange Commission (the “Commission”) as exhibits to the Issuers’ registration statement on Form S-3 (the “Registration Statement”) on or about May 6, 2015.
In rendering the opinions set forth herein, we have examined and relied on originals or copies (certified or otherwise identified to our satisfaction) of the following documents (collectively, the “Documents”):
| (a) | the Registration Statement; |
| (b) | the forms of Senior Notes Indentures; |
| (c) | the forms of Subordinate Notes Indentures; |
| (d) | the “Action by Written Consent in Lieu of a Meeting of the Governing Boards (Boards of Directors, Managing Members, Sole Members, and General Partners, as applicable) of the Entities listed on Schedule A” dated April 30, 2015; |
| (e) | the “Certificate of Rachel A. Seifert with Respect to Various Factual Matters” dated May 6, 2015; |
| (f) | the Articles of Incorporation of Emporia Hospital Corporation filed with the Virginia State Corporation Commission (the “SCC”) effective January 11, 1999; |
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
May 6, 2015
Page 2 of 5
| (g) | the Articles of Incorporation of Franklin Hospital Corporation filed with the SCC effective October 25, 1999; |
| (h) | the Articles of Organization of Virginia Hospital Company, LLC filed with the SCC effective May 7, 2003; |
| (i) | the Bylaws of Emporia Hospital Corporation effective January 11, 1999; |
| (j) | the Bylaws of Franklin Hospital Corporation effective October 25, 1999; |
| (k) | the Limited Liability Company Agreement of Virginia Hospital Company, LLC dated July 30, 2003; |
| (l) | the Certificate of Good Standing for Emporia Hospital Corporation that was issued by the SCC and dated March 3, 2015; |
| (m) | the Certificate of Good Standing for Franklin Hospital Corporation that was issued by the SCC dated March 3, 2015; and |
| (n) | the Certificate of Fact for Virginia Hospital Company, LLC that was issued by the SCC and dated March 3, 2015. |
In rendering the opinions set forth below, we have made no independent verification or investigation of the factual matters set forth herein. We did not participate in the negotiation or preparation of the Indentures and have not advised the Issuers or the Virginia Subsidiary Guarantors with respect to such documents or transactions contemplated thereby. In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all Documents submitted to us as originals, the conformity to original documents of all Documents submitted to us as certified or photostatic copies and the authenticity of the originals of such copies. We have assumed that each party to the Indentures (other than the Virginia Subsidiary Guarantors) has the full power, authority and legal right to execute and perform its obligations under the Indentures and all other documents executed by it in connection with the transactions that are the subject of the Indentures. We have assumed that the Indentures are enforceable in accordance with their terms.
We express no opinion to the extent that any Documents may be impacted by (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other laws affecting the rights of creditors generally; (ii) the exercise of judicial discretion or general principles of equity, whether considered in a proceeding at law or in equity, or public policy, including applicable securities law; (iii) restrictions on the assignment of benefits payable under any governmental health care program; (iv) standards relating to privacy and confidentiality of patient information; (v) standards relating to fraud and forgery; (vi) any banking or insurance company law, rule or regulation, (vii) any law, rule or regulation relating to taxation, (viii) the statutes and ordinances, administrative decisions and rules and regulations of countries, towns, agencies, counties, municipalities and special political subdivisions, (ix) state securities or “Blue Sky” laws, rules and regulations; and (x) antitrust and unfair competition laws and regulations.
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
May 6, 2015
Page 3 of 5
As to all questions of fact material to this opinion letter, we have relied upon (a) warranties, representations and covenants made by the Issuers and the Virginia Subsidiary Guarantors that are included in the Indentures and the Registration Statement; and (b) originals or copies (certified or otherwise identified to our satisfaction) of such records and other documents, and such certificates or comparable documents of public officials and of officers and representatives of the Issuers and the Virginia Subsidiary Guarantors, and have assumed that such maters remain true and correct through the date of this letter. Whenever the phrase “to our knowledge” is used herein, it refers to the actual knowledge of the attorneys of this firm involved in the representation of each applicable Virginia Subsidiary Guarantor in this transaction without independent investigation.
Based on the foregoing, and subject to the assumptions, limitations and qualifications set forth herein, we are of the opinion that:
1. Based solely upon our review of the Certificates of Good Standing and Certificate of Fact issued by the SCC for each respective Virginia Subsidiary Guarantor, each of the Virginia Subsidiary Guarantors is validly existing under the laws of the Commonwealth of Virginia;
2. Each of the Virginia Subsidiary Guarantors has the requisite power and authority to guarantee the Debt Securities pursuant to the terms of the Indentures and to perform its obligations under the Debt Guarantees; and
3. The Debt Guarantees, upon being duly authorized by all necessary corporate or limited liability company action (as the case may be), executed by an authorized signatory and delivered, will be validly authorized, executed, and delivered for corporate or limited liability company (as the case may be) law purposes by each Virginia Subsidiary Guarantor.
We express no opinion as to matters under or involving the laws of any jurisdiction other than laws of Virginia affecting corporations and limited liability companies. We express no opinion concerning any matter respecting or affected by any laws other than laws that a lawyer in Virginia exercising customary professional diligence would reasonably recognize as being directly applicable to each applicable Virginia Subsidiary Guarantor for purposes of the opinions made in this letter. We express no opinion as to the enforceability of the Indentures or the application of federal or state securities law to the transactions contemplated in the Indentures and the Registration Statement.
The opinions expressed herein are based upon facts and applicable laws covered by our opinions, each as in existence on this date. We assume no obligation to update or supplement such opinions to reflect any fact or circumstance that may come to our attention or any change in law that may occur. The opinions contained herein are legal opinions only and do not constitute a guaranty or warranty of the matters stated. The opinions are limited to the matters stated, and no opinion is implied or may be inferred beyond the matters expressly stated.
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
May 6, 2015
Page 4 of 5
We hereby consent to any reliance on this opinion letter and the opinions provided herein by the law firm Hodgson Russ LLP in connection with the legal opinion provided by that law firm that is in included as an exhibit to the Registration Statement. Additionally, we hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the prospectus contained in the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933 as amended or the rules and regulations of the Commission thereunder.
| Very truly yours, |
| /s/ Hancock, Daniel, Johnson & Nagle, P.C. |
| HANCOCK, DANIEL, JOHNSON & NAGLE, P.C. |
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
May 6, 2015
Page 5 of 5
Schedule A
Virginia Subsidiary Guarantors
| 1. | Emporia Hospital Corporation |
| 2. | Franklin Hospital Corporation |
| 3. | Virginia Hospital Company, LLC |
[LETTERHEAD OF WITHERSPOON, KELLEY, DAVENPORT & TOOLE, P.S.]
Exhibit 5.18
May 6, 2015
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
4000 Meridian Boulevard
Franklin, Tennessee 37067
Ladies and Gentlemen:
We have acted as special Washington counsel to Yakima HMA, LLC, a Washington limited liability company (the “Washington Subsidiary Guarantor”), in connection with the Washington Subsidiary Guarantor’s proposed guarantees (collectively, the “Debt Guarantees”) of debt securities (collectively, the “Debt Securities”) to be issued from time to time by Community Health Systems, Inc., a Delaware corporation (“Parent”), or CHS/Community Health Systems, Inc., a Delaware corporation (“CHS/CHS” and, together with Parent, the “Issuers”), pursuant to forms of senior and subordinated notes indentures (collectively, the “Indentures”) that were filed with the Securities and Exchange Commission (the “Commission”) as exhibits to the Issuers’ registration statement on Form S-3 (the “Registration Statement”) on or about May 6, 2015.
In rendering the opinions set forth herein, we have examined and relied with respect to factual matters, upon the Officers’ Certificate (defined below), and certificates of public officials referred to below without further investigation or inquiry. The documents listed in (i) through (v) are collectively referred to as the “Corporate Documents” and the documents from (vi) through (xi) are collectively referred to as the “Transaction Documents.” We have reviewed no other documents, corporate records, certificates or other statements as a basis for the opinions herein expressed and, with your consent, the opinions are based solely on a review of the following Corporate Documents and the Transaction Documents:
(i) the Certificate of Formation of the Washington Subsidiary Guarantor filed December 1, 2008 as certified by the Secretary of State of the State of Washington on August 20, 2014 (the “Certificate of Formation”);
(ii) the Articles of Merger of the Washington Subsidiary Guarantor filed December 8, 2008 as certified by the Secretary of State of the State of Washington on August 20, 2014 (the “Articles of Merger”);
(iii) the Third Amended and Restated Limited Liability Company Agreement of the Washington Subsidiary Guarantor dated January 27, 2014 (the “LLC Agreement”);
(iv) the Certificate of Existence/Authorization dated April 27, 2015 from the Secretary of State of the State of Washington as to the existence of the Washington Subsidiary Guarantor (the “Certificate of Existence”);
Community Health Systems, Inc.
May 6, 2015
Page 2
(v) the certificate with respect to various factual matters signed by an officer of the Issuers and the Washington Subsidiary Guarantor and dated the date of this opinion (the “Officer’s Certificate”);
(vi) the CHS Community Health Systems, Inc. Senior Debt Securities Indenture;
(vii) the CHS Community Health Systems, Inc. Subordinated Debt Securities Indenture;
(viii) the Community Health Systems, Inc. Senior Debt Securities Indenture;
(ix) the Community Health Systems, Inc. Subordinated Debt Securities Indenture;
(x) the Registration Statement; and
(xi) the prospectus contained within the Registration Statement (the “Prospectus”).
We have not undertaken any search of court or other public records for purposes of this letter. We have assumed for purposes of this letter: each document we have reviewed is accurate and complete, each such document that is an original is authentic, each such document that is a copy conforms to an authentic original, and all signatures on each such document are genuine; that the parties thereto, other than the Washington Subsidiary Guarantor, had the requisite power to enter into and perform all obligations thereunder; that each such document was duly authorized by all requisite corporate or other action of the parties, other than the Washington Subsidiary Guarantor, and that such documents were duly executed and delivered by each party thereto, other than the Washington Subsidiary Guarantor; and that Issuers and the Washington Subsidiary Guarantor have acted in good faith and without notice of any fact which has caused Issuers and the Washington Subsidiary Guarantor to reach any conclusion contrary to any of the advice provided in this letter.
Without limiting the foregoing, the opinions hereinafter expressed are subject to the following additional assumptions:
A. the Washington Subsidiary Guarantor has received fair value for its execution of Transaction Documents applicable to it.
B. Neither the Issuers nor the Washington Subsidiary Guarantor will in the future take any discretionary action (including the decision not to act) permitted under the Transaction Documents that would result in a violation of law or constitute a breach of or default under any other agreement or court order;
C. The Issuers and the Washington Subsidiary Guarantor, as applicable, will obtain all permits and governmental approvals required in the future, and take all actions similarly required, relevant to subsequent consummation of the transaction or performance of the Transaction Documents; and
D. All parties to the transaction will act in accordance with, and will refrain from taking any action that is forbidden by, the terms and conditions of the Transaction Documents.
Community Health Systems, Inc.
May 6, 2015
Page 3
Based on the foregoing, and subject to the assumptions, limitations and qualifications set forth herein, we are of the opinion that:
1. The Washington Subsidiary Guarantor is validly existing under the laws of the State of Washington.
2. The Washington Subsidiary Guarantor has the requisite limited liability company power and authority to guarantee the Debt Securities pursuant to the terms of the Indentures and to perform its obligations under the Debt Guarantees.
3. The Debt Guarantees, upon being duly authorized by all necessary limited liability company action, executed by an authorized signatory and delivered, will be validly authorized, executed, and delivered for limited liability company law purposes by the Washington Subsidiary Guarantor.
*********
Except for the activities described in this letter, we have not undertaken any investigation to determine the facts upon which the advice in this letter is based.
Our representation of the Washington Subsidiary Guarantor is limited by those specific matters for which we have been engaged. We have no familiarity with the Washington Subsidiary Guarantor’s day-to-day operations, business or financial affairs. In preparing this letter we have relied without further investigation or independent verification upon: (i) information contained in certificates obtained from governmental authorities; (ii) factual information represented to be true in the Corporate Documents and Transaction Documents; (iii) factual information provided to us by the Washington Subsidiary Guarantor or its representatives, including, without limitation, the Officer’s Certificate referenced above; and (iv) factual information we have obtained from such other sources as we have deemed reasonable. We have assumed that there has been no relevant change or development between the dates as of which the information cited in the preceding sentence was given and the date of this letter and that the information upon which we have relied is accurate and does not omit disclosures necessary to prevent such information from being misleading.
In rendering the opinion set forth in paragraph (1) above as to the existence of the Washington Subsidiary Guarantor, we have relied exclusively on the Certificate of Existence. In addition, as set forth in the LLC Agreement, the Washington Subsidiary Guarantor is managed by a board of directors currently consisting of Martin G. Schweinhart, W. Larry Cash and Rachel A. Seifert. We assume that such individuals are legally competent to serve as directors and are not suffering from any mental condition or disability that would affect his or her capacity to enter into contracts generally.
As used in this opinion, references to our knowledge or awareness, or words of similar import, refer to the current actual knowledge of attorneys within the firm who have rendered legal services to the Washington Subsidiary Guarantor in connection with the Transaction Documents and the transactions contemplated thereby, and corporate law matters related thereto, and mean that, while such attorneys have not been informed by the Washington Subsidiary Guarantor that the matters stated are factually incorrect
Community Health Systems, Inc.
May 6, 2015
Page 4
and no information that would give such attorneys current actual knowledge of any such factual inaccuracy has come to such attorneys’ attention, we have not undertaken any independent investigation with respect thereto.
None of the foregoing opinions include any implied opinion, and we specifically express no opinion with respect to compliance with fiduciary duty requirements.
We are admitted to practice law only in the State of Washington. This opinion is limited to the laws of the State of Washington, and we express no opinion herein with respect to any other laws or to the application of the laws of any other jurisdiction. We express no opinion as to whether the laws of any particular jurisdiction apply, and express no opinion to the extent that the laws of any jurisdiction other than the laws of the State of Washington are applicable to the subject matter hereof. Additionally, we disclaim any opinion as to the application of any law of any city, county or other local subdivision or other local governmental authority of the State of Washington. To the extent that any of the documents reviewed by us in connection with this opinion are governed by the laws of any jurisdiction other than the State of Washington, our opinion relating to those documents is based solely upon the apparent meaning of the language without regard to interpretation or construction that might be indicated by the laws governing those agreements and instruments. This opinion is limited to the matters expressly set forth above, and no opinion is implied or may be inferred beyond the matters expressly so stated. We assume no obligation to advise the Issuers or the Washington Subsidiary Guarantor of any future changes in the facts or law relating to the matters covered by this opinion.We hereby consent to any reliance on this opinion letter and the opinions provided herein by the law firm Hodgson Russ LLP in connection with the legal opinion provided by that law firm that is in included as an exhibit to the Registration Statement. Additionally, we hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the Prospectus. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
| Very truly yours, |
| /s/ Witherspoon, Kelley, Davenport & Toole, P.S. |
| WITHERSPOON, KELLEY, DAVENPORT & TOOLE, P.S. |
[LETTERHEAD OF STEPTOE & JOHNSON, PLLC]
Exhibit 5.19
May 6, 2015
Community Health Systems, Inc.
CHS/Community Health Systems, Inc.
4000 Meridian Boulevard
Franklin, Tennessee 37067
Ladies and Gentlemen:
We have acted as West Virginia counsel to Oak Hill Hospital Corporation, organized and existing under the laws of the State of West Virginia(the “State Subsidiary Guarantor”), in connection with the proposed guarantees (collectively, the “Debt Guarantees”) of debt securities (collectively, the “Debt Securities”) by the guarantors including, but not limited to, the State Subsidiary Guarantor, to be issued from time to time by Community Health Systems, Inc., a Delaware corporation (“Parent”), or CHS/Community Health Systems, Inc., a Delaware corporation (“CHS/CHS” and, together with Parent, the “Issuers”), pursuant to forms of senior and subordinated notes indentures (collectively, the “Indentures”) that were filed with the Securities and Exchange Commission (the “Commission”) as exhibits to the Issuers’ registration statement on Form S-3 (the “Registration Statement”) on or about May 6, 2015.
In rendering the opinions set forth below, we have, with your consent, relied only upon examination of the documents described above and have made no independent verification or investigation of the factual matters set forth herein. We did not participate in the negotiation or preparation of the Indentures and have not advised the Issuers or the State Subsidiary Guarantor with respect to such documents or transactions contemplated thereby.
In rendering our opinions herein, we have relied with respect to factual matters, upon the Officers’ Certificate (defined below), and certificates of public officials referred to below. In addition thereto, we have reviewed and relied upon such records, documents, certificates and other instruments as in our judgment are necessary or appropriate to form the basis for rendering our opinions, including, without limitation, the following:
(i) the Certificate of Incorporation and Bylaws for the State Subsidiary Guarantor;
(ii) the certificate with respect to various factual matters signed by an officer of the State Subsidiary Guarantor and dated the date of this opinion (the “Officers’ Certificate”);
(iii) Certificate of Existence as issued by the West Virginia Secretary of State and dated as of April 24, 2015;
(iv) the Indentures.
May 6, 2015
Page 2
Based on the foregoing, and subject to the assumptions, limitations and qualifications set forth herein, we are of the opinion that:
1. The State Subsidiary Guarantor validly exists under the laws of the State of West Virginia.
2. The State Subsidiary Guarantor has the requisite corporate power and authority to guarantee the Debt Securities pursuant to the terms of the Indentures and to perform its obligations under the Debt Guarantees.
3. The Debt Guarantees, upon being duly authorized by all necessary corporate action, executed by an authorized signatory and delivered, will be validly authorized, executed, and delivered for corporate law purposes by the State Subsidiary Guarantor.
The opinions that are expressed herein are further subject to the following exceptions, limitations, assumptions and qualifications.
(a) The opinions expressed above are subject to applicable bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium and other similar laws of general application under the laws of the State of West Virginia and the United States relating to or affecting creditors’ rights, and to general principles of equity, judicial discretion and general requirements of good faith, fair dealing and commercial reasonableness (whether a matter is considered in a proceeding at law or in equity).
(b) Certain laws and decisions applicable in the State of West Virginia may limit, render unenforceable or otherwise affect the enforceability of, certain rights, remedies, waivers and other provisions contained in the Indentures. Such laws and decisions do not affect the validity, of the Indentures taken as a whole, and the Indentures, taken together with applicable law, contains adequate provisions for enforcing the obligations of the borrower thereunder and for the practical realization of the material benefits conveyed by the Indentures; provided, however, such laws and decisions do not, in our judgment make the remedies provided for in the Indentures and available at law inadequate for the practical realization of the security intended to be provided by the Indentures.
(c) We express no opinion as to the validity or enforceability of any provision in any Indenture, (1) modifying or waiving any requirement of commercial reasonableness or prior notice or the right of redemption arising under any law, (2) waiving any rights afforded to any party thereto under any constitutional provision, (3) waiving the rights afforded to any party under any statute, or by which any party thereto waives any rights afforded to such party by applicable law, except to the extent such waiver expressly is permitted by statute, (4) imposing penalties, forfeitures, increased rates or late payment charges upon delinquency in payment or the occurrence of an event of default; (5) requiring the payment of interest on interest; (6) waiving any right to jury trial; or (7) waiving any right with respect to consent to jurisdiction or venue.
May 6, 2015
Page 3
(d) We express no opinion as to the enforceability of any rights to indemnification or contribution provided in the Indentures which may be deemed violative of public policy or any rights of setoff or similar rights provided in the Indentures.
(e) We express no opinion concerning the existence, location, or ownership of, or legal or equitable title to, any property or the priority of the interest of any entity in any property or any interest in property nor as to matters of lien priority, land use, including without limitation, zoning and subdivision matters, building codes, environmental laws, or other matters affecting any real property interest or title interests.
(f) We express no opinion as to the enforceability of any provision that would purport to permit the beneficiaries to confess judgment against the State Subsidiary Guarantor.
(g) We express no opinion as to the validity or enforceability of any covenant of the Indentures that is not set forth in full in such Indenture but which is incorporated by reference to another document.
(h) We express no opinion regarding any matter involving the licensing and/or regulation of any nursing home, hospice, residential care community or other health care provider as the same are defined in West Virginia Code Section 16-1-1 et seq.
(i) We have made no investigation and express no opinion as to the applicability to the Indentures or to the transaction contemplated thereby of provisions of the Federal Bankruptcy Code relating to fraudulent conveyances or fraudulent transfers.
(j) Our opinions are subject to Section 522 of the United States Bankruptcy Code and with respect to proceeds of personal property, our opinions are limited in accordance with the provisions of Section 9-315 of the UCC.
(k) We express no opinion as to any of the following: (1) the accuracy or completeness of any financial, accounting or statistical information furnished by the State Subsidiary Guarantor to any third party; (2) the financial status of the State Subsidiary Guarantor; (3) the State Subsidiary Guarantor’s ability to perform its obligations under the Indentures other than as specifically opined herein; and (4) the accuracy or completeness of any representations made by the State Subsidiary Guarantor other than as specifically opined herein.
(l) This opinion letter is rendered as of the date set forth above, and is limited to present statutes, laws and regulations and to the facts as they currently exist. We disclaim any responsibility for notifying you of any changes affecting this opinion letter that later comes to our attention and we assume no obligation to update or supplement this opinion letter.
We are qualified to practice law in the State of West Virginia. We do not express any opinion herein concerning the laws of any jurisdiction other than the laws of the State of West Virginia.
May 6, 2015
Page 4
We hereby consent to any reliance on this opinion letter and the opinions provided herein by the law firm Hodgson Russ LLP in connection with the legal opinion provided by that law firm that is in included as an exhibit to the Registration Statement. Additionally, we hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the prospectus contained in the Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
| Very truly yours, |
| /s/ STEPTOE & JOHNSON, PLLC, a West |
| Virginia Professional Limited Liability Company |
[LETTERHEAD OF CROWLEY FLECK PLLP]
Exhibit 5.20
May 6, 2015
Community Health System, Inc.
CHS/Community Health Systems, Inc.
4000 Meridian Blvd.
Franklin, TN 37067
| Re: | Evanston Hospital Corporation, a Wyoming corporation |
Local Counsel Opinion for the State of Wyoming
Ladies and Gentlemen:
We have acted as special counsel in the State of Wyoming for Evanston Hospital Corporation, a Wyoming corporation, (the “Guarantor”), in connection with the Guarantor’s proposed guarantee (the “Debt Guarantee”) of debt securities (collectively, the “Debt Securities”) to be issued from time to time by Community Health Systems, Inc., a Delaware corporation (“Parent”), or CHS/Community Health Systems, Inc., a Delaware corporation (“CHS/CHS” and, together with the Parent, the “Issuers”), pursuant to forms of senior and subordinate notes indentures (collectively, the “Indentures”) that were filed with the Securities and Exchange Commission (the “Commission”) as exhibits to the Issuers’ registration statement on Form S-3 (the “Registration Statement”) on or about May 6, 2015.
MATERIALS EXAMINED
In our representation of Guarantor, we have examined the following documents:
| (1) | the Registration Statement; |
| (2) | Indentures (in the form attached to the Registration Statement); |
| (3) | Articles of Incorporation of Evanston Hospital Corporation, dated September 2, 1999; |
| (4) | Bylaws of Evanston Hospital Corporation, dated September 7, 1999; |
| (5) | Certificate of Existence for Evanston Hospital Corporation issued by the Wyoming Secretary of State dated April 30, 2015 (the “Certificate of Existence”); |
May 6, 2015
Page 2 of 4
| (6) | Action by Written Consent in Lieu of a Meeting of the Governing Boards (Board of Directors, Managing Members, Sole Members, and General Partners, as applicable) of the Entitles Listed on Schedule A thereto, dated April 30, 2015; and |
| (7) | Certificate of Rachel A. Seifert with Respect to Various Factional Matters dated May 6, 2015 |
The documents identified in items (1) through (7) above may be referred to herein as the “Transaction Documents,” and the documents identified in items (3) through (7) above may be referred to herein as the “Corporation Documents”.
ASSUMPTIONS
With your permission, as to questions of fact material to this Opinion and without independent verification with respect to the accuracy of such factual matters, we have relied upon the Transaction Documents, certificates of public officials, and the accuracy of the public record. We have made no independent investigation of the any statements, warranties and representations made by any party to the Transaction Documents or any related matters. With the exception of the Corporate Documents, we have not examined the books and records of the Guarantor.
For purposes of this Opinion, we have assumed, with your approval and without independent investigation, the following:
a. No fraud, mistake, undue influence, duress or criminal activity exists with to the Transaction Documents or any of the matters relevant to the opinions rendered herein.
b. The genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to authentic, original documents of all documents submitted to us as copies, the due authority of the parties executing such documents, and the legal capacity of natural persons.
c. All factual matters, including, without limitation, any representations and warranties, contained in the Transaction Documents, are true and correct as set forth therein.
OPINION
Based on the foregoing, and subject to the assumptions, limitations, qualifications and exceptions set forth herein, we express the following Opinions:
Opinion 1. Based solely on the Certificate of Existence, the Guarantor validly exists under the laws of the State of Wyoming.
May 6, 2015
Page 3 of 4
Opinion 2. The Guarantor has the requisite corporate power to guarantee the Debt Securities pursuant to the terms of the Indentures and to perform its obligations under the Debt Guarantee.
Opinion 3. The Debt Guarantee, upon being duly authorized by all necessary corporate action, executed by an authorized signatory and properly delivered, will be validly authorized, executed, and delivered for Wyoming corporate law purposes by the Guarantor.
LIMITATIONS AND QUALIFICATIONS
The foregoing Opinions are subject to the following limitations, qualifications, and exceptions:
A. Our Opinions are limited to the laws of the State of Wyoming existing on the date of this letter, and we assume no obligation to update or supplement this Opinion. Furthermore, we express no opinion with respect to the compliance with any law, rule or regulation that is a matter of customary practice as understood to be covered only when an opinion refers to it expressly. Without limiting the generality of the foregoing, we express no opinion on local or municipal law, anti-trust, environmental, land use, securities, tax, pension, employee benefit, margin, insolvency, anti-terrorism, money laundering, or investment company laws and regulations.
B. Our opinions are subject to and limited by (a) bankruptcy, insolvency, reorganization, arrangement, moratorium and other similar laws of general applicability relating to or affecting creditors rights generally; (b) fraudulent transfer and fraudulent conveyance laws; and (c) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law.
C. No opinion is implied or is to be inferred beyond the matters expressly stated herein. This letter is our opinion as to certain legal conclusions as specifically set forth herein, and does not and shall not be deemed to be a representation or opinion as to any factual matters.
D. This Opinion has been prepared and given in accordance with the customary practice of those lawyers licensed to practice law in the State of Wyoming who regularly give opinions of this kind, type and nature as those matters contained herein. The opinion recipients have agreed that the interpretation of this Opinion shall be based upon the customary practice of those lawyers licensed to practice law in the State of Wyoming who regularly give opinions of this kind, type and nature as those matters contained herein.
We hereby consent to any reliance on this Opinion letter and the opinions provided herein by the law firm Hodgson Russ LLP in connection with the legal opinion provided by that law firm that is in included as an exhibit to the Registration Statement. Additionally, we hereby consent to the filing of this Opinion letter as an exhibit to the Registration Statement and to the reference to our firm under the heading “Legal Matters” in the prospectus contained in the
May 6, 2015
Page 4 of 4
Registration Statement. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
Sincerely,
Crowley Fleck PLLP
| By: | /s/ Alan C. Bryan |
Exhibit 12.1
STATEMENT RE: COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN MILLIONS)
| Year Ended December 31, | Three Months Ended March 31, |
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| 2010 | 2011 | 2012 | 2013 | 2014 | 2015 | |||||||||||||||||||
| Earnings |
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| Income from continuing operations before provision for income taxes |
$ | 521 | $ | 484 | $ | 522 | $ | 346 | $ | 342 | $ | 168 | ||||||||||||
| Income from equity investees |
(45 | ) | (49 | ) | (42 | ) | (43 | ) | (48 | ) | (18 | ) | ||||||||||||
| Distributed income from equity investees |
34 | 40 | 32 | 59 | 29 | 3 | ||||||||||||||||||
| Interest and amortization of deferred finance costs |
646 | 643 | 621 | 613 | 972 | 241 | ||||||||||||||||||
| Amortization of capitalized interest |
2 | 3 | 4 | 4 | 4 | 5 | ||||||||||||||||||
| Implicit rental interest expense |
60 | 61 | 66 | 70 | 108 | 29 | ||||||||||||||||||
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| Total earnings |
$ | 1,218 | $ | 1,182 | $ | 1,203 | $ | 1,049 | $ | 1,407 | $ | 428 | ||||||||||||
| Fixed Charges |
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| Interest and amortization of deferred finance costs |
$ | 646 | $ | 643 | $ | 621 | $ | 613 | $ | 972 | $ | 241 | ||||||||||||
| Capitalized interest |
11 | 21 | 24 | 10 | 10 | 4 | ||||||||||||||||||
| Implicit rental interest expense |
60 | 61 | 66 | 70 | 108 | 29 | ||||||||||||||||||
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| Total fixed charges |
$ | 717 | $ | 725 | $ | 711 | $ | 693 | $ | 1,090 | $ | 274 | ||||||||||||
| Ratio of earnings to fixed charges |
1.70 | x | 1.63 | x | 1.69 | x | 1.51 | x | 1.29 | x | 1.56 | x | ||||||||||||
Exhibit 23.21
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-3 of our reports dated February 25, 2015, relating to the consolidated financial statements and consolidated financial statement schedule of Community Health Systems, Inc. and subsidiaries (the “Company”) and the effectiveness of Community Health Systems, Inc. and subsidiaries’ internal control over financial reporting, appearing in the Annual Report on Form 10-K of Community Health Systems, Inc. for the year ended December 31, 2014, and to the reference to us under the heading “Experts” in the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
Nashville, Tennessee
May 6, 2015
EXHIBIT 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ¨ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
REGIONS BANK
(Exact name of trustee as specified in its charter)
| An Alabama Banking Corporation | 63-0371391 | |
| (Jurisdiction of incorporation) | (I.R.S. Employer Identification No.) |
Regions Bank
Corporate Trust Department
1901 6th Avenue North, 28th Floor
Birmingham, Alabama 35203
(Address of principal executive offices)
Paul Williams
Vice President
Regions Bank, Corporate Trust Services
150 Fourth Avenue North, Suite 900
Nashville, Tennessee 37219
(615)770-4358
(Name, address and telephone number of agent for service)
Community Health Systems, Inc.
(Exact name of obligor as specified in its charter)
| Delaware | 76-0137985 | |
| (Jurisdiction of incorporation) | (I.R.S. Employer Identification No.) |
4000 Meridian Boulevard
Franklin, Tennessee 37067
(615) 465-7000
(Address of principal executive offices)
Senior Debt Securities
(Title of the indenture securities)
Additional Obligors
| Exact Name of Additional Obligors |
Jurisdiction or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| CHS/Community Health Systems, Inc. | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 76-0137985 | ||||
| Abilene Hospital, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 46-0496920 | ||||
| Abilene Merger, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 46-0496918 | ||||
| Affinity Health Systems, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 20-3391769 | ||||
| Affinity Hospital, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 20-3391873 | ||||
| Amory HMA, LLC | MS | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 20-3750001 | ||||
| Anna Hospital Corporation | IL | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 36-4431843 | ||||
| Anniston HMA, LLC | AL | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 72-1346819 | ||||
| Bartow HMA, LLC | FL | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 20-1888382 | ||||
| Berwick Hospital Company, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 23-2975836 | ||||
| Big Bend Hospital Corporation | TX | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 75-2717545 | ||||
| Big Spring Hospital Corporation | TX | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 75-2574581 | ||||
| Biloxi H.M.A., LLC | MS | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 59-2754033 | ||||
| Birmingham Holdings II, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 26-2784086 | ||||
| Birmingham Holdings, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 20-3320362 | ||||
| Blackwell HMA, LLC | OK | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 36-4720244 | ||||
| Blue Island Hospital Company, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 45-4082512 | ||||
| Blue Island Illinois Holdings, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 61-1667279 | ||||
| Bluefield Holdings, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 27-2372042 | ||||
| Bluefield Hospital Company, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 27-2372291 | ||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Bluffton Health System LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1792272 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Brandon HMA, LLC | MS | 4000 Meridian Boulevard | 8062 | 64-0885458 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Brevard HMA Holdings, LLC | FL | 4000 Meridian Boulevard | 8062 | 27-3137706 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Brevard HMA Hospitals, LLC | FL | 4000 Meridian Boulevard | 8062 | 27-3141947 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Brownwood Hospital, L.P. | DE | 4000 Meridian Boulevard | 8062 | 62-1762521 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Brownwood Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762523 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Bullhead City Hospital Corporation | AZ | 4000 Meridian Boulevard | 8062 | 86-0982071 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Bullhead City Hospital Investment Corporation | DE | 4000 Meridian Boulevard | 8062 | 20-1577204 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Campbell County HMA, LLC | TN | 4000 Meridian Boulevard | 8062 | 45-2528273 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Carlisle HMA, LLC | PA | 4000 Meridian Boulevard | 8062 | 25-1887146 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Carlsbad Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762526 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Carolinas JV Holdings General, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-2227746 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Carolinas JV Holdings, L.P. | DE | 4000 Meridian Boulevard | 8062 | 26-2227809 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Central Florida HMA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964329 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Central States HMA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964397 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Centre Hospital Corporation | AL | 4000 Meridian Boulevard | 8062 | 20-4370931 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Chester HMA, LLC | SC | 4000 Meridian Boulevard | 8062 | 20-1231400 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CHHS Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-2189938 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CHS Kentucky Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1639057 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CHS Pennsylvania Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1639170 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CHS Virginia Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1639119 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| CHS Washington Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3272205 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Citrus HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 20-0195256 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Clarksdale HMA, LLC | MS | 4000 Meridian Boulevard | 8062 | 64-0869163 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Clarksville Holdings II, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-5498575 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Clarksville Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-3320418 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Cleveland Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 62-1587878 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Cleveland Tennessee Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1281627 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Clinton HMA, LLC | OK | 4000 Meridian Boulevard | 8062 | 37-1659366 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Clinton Hospital Corporation | PA | 4000 Meridian Boulevard | 8062 | 90-0003715 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Coatesville Hospital Corporation | PA | 4000 Meridian Boulevard | 8062 | 23-3069798 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Cocke County HMA, LLC | TN | 4000 Meridian Boulevard | 8062 | 45-2528314 | ||||
| Franklin, Tennessee 37067 | ||||||||
| College Station Hospital, L.P. | DE | 4000 Meridian Boulevard | 8062 | 62-1762360 | ||||
| Franklin, Tennessee 37067 | ||||||||
| College Station Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762359 | ||||
| Franklin, Tennessee 37067 | ||||||||
| College Station Merger, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1771861 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Community GP Corp. | DE | 4000 Meridian Boulevard | 8062 | 62-1648466 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Community Health Investment Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 76-0152801 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Community LP Corp. | DE | 4000 Meridian Boulevard | 8062 | 62-1648206 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CP Hospital GP, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-3904557 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CPLP, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-3904614 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Crestwood Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769644 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Crestwood Hospital LP, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762369 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| CSMC, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762362 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CSRA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-5111915 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Deaconess Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 47-0890490 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Deaconess Hospital Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-2401268 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Deming Hospital Corporation | NM | 4000 Meridian Boulevard | 8062 | 85-0438008 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Desert Hospital Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-8111921 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Detar Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1754943 | ||||
| Franklin, Tennessee 37067 | ||||||||
| DHFW Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-2817294 | ||||
| Franklin, Tennessee 37067 | ||||||||
| DHSC, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-2871473 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Dukes Health System, LLC | DE | 4000 Meridian Boulevard | 8062 | 52-2379885 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Dyersburg Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 42-1557536 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Emporia Hospital Corporation | VA | 4000 Meridian Boulevard | 8062 | 54-1924866 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Evanston Hospital Corporation | WY | 4000 Meridian Boulevard | 8062 | 83-0327475 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Fallbrook Hospital Corporation | DE | 4000 Meridian Boulevard | 8062 | 91-1918215 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Florida HMA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964255 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Foley Hospital Corporation | AL | 4000 Meridian Boulevard | 8062 | 62-1811413 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Forrest City Arkansas Hospital Company, LLC | AR | 4000 Meridian Boulevard | 8062 | 20-4217095 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Forrest City Hospital Corporation | AR | 4000 Meridian Boulevard | 8062 | 20-4216978 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Fort Payne Hospital Corporation | AL | 4000 Meridian Boulevard | 8062 | 20-4370870 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Fort Smith HMA, LLC | AR | 4000 Meridian Boulevard | 8062 | 27-1013889 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Frankfort Health Partner, Inc. | IN | 4000 Meridian Boulevard | 8062 | 35-2009540 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Franklin Hospital Corporation | VA | 4000 Meridian Boulevard | 8062 | 52-2200240 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Gadsden Regional Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 63-1102774 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Galesburg Hospital Corporation | IL | 4000 Meridian Boulevard | 8062 | 37-1485782 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Granbury Hospital Corporation | TX | 4000 Meridian Boulevard | 8062 | 75-2682017 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Granite City Hospital Corporation | IL | 4000 Meridian Boulevard | 8062 | 36-4460625 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Granite City Illinois Hospital Company, LLC | IL | 4000 Meridian Boulevard | 8062 | 36-4460628 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Greenville Hospital Corporation | AL | 4000 Meridian Boulevard | 8062 | 63-1134649 | ||||
| Franklin, Tennessee 37067 | ||||||||
| GRMC Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-8112090 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hallmark Healthcare Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 63-0817574 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hamlet H.M.A., LLC | NC | 4000 Meridian Boulevard | 8062 | 58-1741827 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Health Management Associates, Inc. | DE | 4000 Meridian Boulevard | 8062 | 61-0963645 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Health Management Associates, LP | DE | 4000 Meridian Boulevard | 8062 | 27-1601497 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Health Management General Partner I, LLC | DE | 4000 Meridian Boulevard | 8062 | 46-1721316 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Health Management General Partner, LLC | DE | 4000 Meridian Boulevard | 8062 | 46-1690736 | ||||
| Franklin, Tennessee 37067 | ||||||||
| HMA Fentress County General Hospital, LLC | TN | 4000 Meridian Boulevard | 8062 | 95-3974754 | ||||
| Franklin, Tennessee 37067 | ||||||||
| HMA Hospitals Holdings, LP | DE | 4000 Meridian Boulevard | 8062 | 26-3964154 | ||||
| Franklin, Tennessee 37067 | ||||||||
| HMA Santa Rosa Medical Center, LLC | FL | 4000 Meridian Boulevard | 8062 | 68-0045270 | ||||
| Franklin, Tennessee 37067 | ||||||||
| HMA Services GP, LLC | DE | 4000 Meridian Boulevard | 8062 | 46-1707507 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hobbs Medco, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769641 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hospital Management Associates, LLC | FL | 4000 Meridian Boulevard | 8062 | 35-1410796 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hospital Management Services of Florida, LP | FL | 4000 Meridian Boulevard | 8062 | 20-5917647 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Hospital of Barstow, Inc. | DE | 4000 Meridian Boulevard | 8062 | 76-0385534 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hospital of Fulton, Inc. | KY | 4000 Meridian Boulevard | 8062 | 61-1218106 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hospital of Louisa, Inc. | KY | 4000 Meridian Boulevard | 8062 | 61-1238190 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hospital of Morristown, Inc. | TN | 4000 Meridian Boulevard | 8062 | 62-1528689 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Jackson HMA, LLC | MS | 4000 Meridian Boulevard | 8062 | 64-0907122 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Jackson Hospital Corporation (KY) | KY | 4000 Meridian Boulevard | 8062 | 61-1285331 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Jackson Hospital Corporation (TN) | TN | 4000 Meridian Boulevard | 8062 | 42-1557525 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Jefferson County HMA, LLC | TN | 4000 Meridian Boulevard | 8062 | 45-2528414 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Jourdanton Hospital Corporation | TX | 4000 Meridian Boulevard | 8062 | 74-3011840 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Kay County Hospital Corporation | OK | 4000 Meridian Boulevard | 8062 | 20-4052833 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Kay County Oklahoma Hospital Company, LLC | OK | 4000 Meridian Boulevard | 8062 | 20-4052936 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Kennett HMA, LLC | MO | 4000 Meridian Boulevard | 8062 | 20-0248087 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Key West HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 65-0905661 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Kirksville Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 36-4373298 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Knoxville HMA Holdings, LLC | TN | 4000 Meridian Boulevard | 8062 | 45-2528116 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lakeway Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 62-1564360 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lancaster Hospital Corporation | DE | 4000 Meridian Boulevard | 8062 | 57-1010381 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Las Cruces Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 75-2905434 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lea Regional Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1760149 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lehigh HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 65-1144586 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lexington Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 42-1557533 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Longview Clinic Operations Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 75-1470252 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Longview Medical Center, L.P. | DE | 4000 Meridian Boulevard | 8062 | 62-1762420 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Longview Merger, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769639 | ||||
| Franklin, Tennessee 37067 | ||||||||
| LRH, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762421 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lutheran Health Network of Indiana, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762363 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Madison HMA, LLC | MS | 4000 Meridian Boulevard | 8062 | 03-0400182 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Marion Hospital Corporation | IL | 4000 Meridian Boulevard | 8062 | 37-1359605 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Marshall County HMA, LLC | OK | 4000 Meridian Boulevard | 8062 | 38-3862800 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Martin Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 42-1557527 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Massillon Community Health System LLC | DE | 4000 Meridian Boulevard | 8062 | 55-0799029 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Massillon Health System LLC | DE | 4000 Meridian Boulevard | 8062 | 34-1840860 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Massillon Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-0201156 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Mayes County HMA, LLC | OK | 4000 Meridian Boulevard | 8062 | 61-1670947 | ||||
| Franklin, Tennessee 37067 | ||||||||
| McKenzie Tennessee Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 42-1557531 | ||||
| Franklin, Tennessee 37067 | ||||||||
| McNairy Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 42-1557530 | ||||
| Franklin, Tennessee 37067 | ||||||||
| MCSA,L.L.C. | AR | 4000 Meridian Boulevard | 8062 | 71-0785071 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Medical Center of Brownwood, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762425 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Melbourne HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 27-3142044 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Merger Legacy Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-1344746 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Mesquite HMA General, LLC | DE | 4000 Meridian Boulevard | 8062 | 41-2035879 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Metro Knoxville HMA, LLC | TN | 4000 Meridian Boulevard | 8062 | 45-2535623 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Mississippi HMA Holdings I, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964464 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Mississippi HMA Holdings II, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964541 | ||||
| Franklin, Tennessee 37067 | ||||||||
| MMC of Nevada, LLC | DE | 4000 Meridian Boulevard | 8062 | 42-1543617 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Moberly Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 43-1651906 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Monroe HMA, LLC | GA | 4000 Meridian Boulevard | 8062 | 20-0141568 | ||||
| Franklin, Tennessee 37067 | ||||||||
| MWMC Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-8007512 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Naples HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 20-4401957 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Natchez Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 37-1756496 | ||||
| Franklin, Tennessee 37067 | ||||||||
| National Healthcare of Leesville, Inc. | DE | 4000 Meridian Boulevard | 8062 | 95-4066162 | ||||
| Franklin, Tennessee 37067 | ||||||||
| National Healthcare of Mt. Vernon, Inc. | DE | 4000 Meridian Boulevard | 8062 | 58-1622971 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Navarro Hospital, L.P. | DE | 4000 Meridian Boulevard | 8062 | 62-1762428 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Navarro Regional, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762429 | ||||
| Franklin, Tennessee 37067 | ||||||||
| NC-DSH, LLC | NV | 4000 Meridian Boulevard | 8062 | 88-0305790 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Northampton Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 52-2325498 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Northwest Arkansas Hospitals, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-5896848 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Northwest Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762430 | ||||
| Franklin, Tennessee 37067 | ||||||||
| NOV Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-8112009 | ||||
| Franklin, Tennessee 37067 | ||||||||
| NRH, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762431 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Oak Hill Hospital Corporation | WV | 4000 Meridian Boulevard | 8062 | 27-0003893 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Oro Valley Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 52-2379881 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Palmer-Wasilla Health System, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762371 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Payson Hospital Corporation | AZ | 4000 Meridian Boulevard | 8062 | 86-0874009 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Pennsylvania Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 06-1694707 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Phillips Hospital Corporation | AR | 4000 Meridian Boulevard | 8062 | 75-2976342 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Phoenixville Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-1055060 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Poplar Bluff Regional Medical Center, LLC | MO | 4000 Meridian Boulevard | 8062 | 43-1238701 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Port Charlotte HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 20-1852902 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Pottstown Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 06-1694708 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Punta Gorda HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 65-0526360 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG Georgia Holdings II, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-1344786 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG Georgia Holdings, Inc. | GA | 4000 Meridian Boulevard | 8062 | 58-2386459 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG Georgia, LP | GA | 4000 Meridian Boulevard | 8062 | 58-2387537 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Bluffton Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1792274 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Clinton County, Inc. | IN | 4000 Meridian Boulevard | 8062 | 35-2006952 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Enterprise, Inc. | AL | 4000 Meridian Boulevard | 8062 | 63-1159023 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Forrest County, Inc. | MS | 4000 Meridian Boulevard | 8062 | 62-1704095 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Fort Wayne Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 35-1946949 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Hattiesburg, Inc. | MS | 4000 Meridian Boulevard | 8062 | 62-1704097 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Massillon, Inc. | OH | 4000 Meridian Boulevard | 8062 | 31-1472380 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of South Carolina, Inc. | SC | 4000 Meridian Boulevard | 8062 | 62-1587267 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Spartanburg, Inc. | SC | 4000 Meridian Boulevard | 8062 | 57-1040117 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Springdale, Inc. | AR | 4000 Meridian Boulevard | 8062 | 62-1755664 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Quorum Health Resources, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1742954 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Red Bud Hospital Corporation | IL | 4000 Meridian Boulevard | 8062 | 36-4444121 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Red Bud Illinois Hospital Company, LLC | IL | 4000 Meridian Boulevard | 8062 | 36-4443919 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Regional Hospital of Longview, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762464 | ||||
| Franklin, Tennessee 37067 | ||||||||
| River Oaks Hospital, LLC | MS | 4000 Meridian Boulevard | 8062 | 64-0626874 | ||||
| Franklin, Tennessee 37067 | ||||||||
| River Region Medical Corporation | MS | 4000 Meridian Boulevard | 8062 | 62-1576702 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Rockledge HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 27-3142075 | ||||
| Franklin, Tennessee 37067 | ||||||||
| ROH, LLC | MS | 4000 Meridian Boulevard | 8062 | 64-0780035 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Roswell Hospital Corporation | NM | 4000 Meridian Boulevard | 8062 | 74-2870118 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Ruston Hospital Corporation | DE | 4000 Meridian Boulevard | 8062 | 20-8066937 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Ruston Louisiana Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-8066999 | ||||
| Franklin, Tennessee 37067 | ||||||||
| SACMC, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762472 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Salem Hospital Corporation | NJ | 4000 Meridian Boulevard | 8062 | 22-3838322 | ||||
| Franklin, Tennessee 37067 | ||||||||
| San Angelo Community Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762473 | ||||
| Franklin, Tennessee 37067 | ||||||||
| San Angelo Medical, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769697 | ||||
| Franklin, Tennessee 37067 | ||||||||
| San Miguel Hospital Corporation | NM | 4000 Meridian Boulevard | 8062 | 74-2930034 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Scranton Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-4577223 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Scranton Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-4564798 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Scranton Quincy Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-2671991 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Scranton Quincy Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-2672023 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Sebastian Hospital, LLC | FL | 4000 Meridian Boulevard | 8062 | 65-0425888 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Sebring Hospital Management Associates, LLC | FL | 4000 Meridian Boulevard | 8062 | 59-2546390 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Seminole HMA, LLC | OK | 4000 Meridian Boulevard | 8062 | 45-4164241 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Sharon Pennsylvania Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 46-4257540 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Sharon Pennsylvania Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 38-3920098 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Shelbyville Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 20-2909388 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Siloam Springs Arkansas Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3635210 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Siloam Springs Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3635188 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Southeast HMA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964613 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Southern Texas Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769737 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Southwest Florida HMA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964696 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Spokane Valley Washington Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1315140 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Spokane Washington Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1315081 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Statesville HMA, LLC | NC | 4000 Meridian Boulevard | 8062 | 56-2206788 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tennessee HMA Holdings, LP | DE | 4000 Meridian Boulevard | 8062 | 46-1750499 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tennyson Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-3943816 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tomball Texas Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-2784214 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tomball Texas Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-2856063 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tooele Hospital Corporation | UT | 4000 Meridian Boulevard | 8062 | 87-0619248 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad Healthcare Corporation | DE | 4000 Meridian Boulevard | 8062 | 75-2816101 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad Holdings III, LLC | DE | 4000 Meridian Boulevard | 8062 | 75-2821745 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad Holdings IV, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1766957 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Triad Holdings V, LLC | DE | 4000 Meridian Boulevard | 8062 | 51-0327978 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad Nevada Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1639289 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad of Alabama, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762412 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad of Oregon, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1761990 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad-ARMC, LLC | DE | 4000 Meridian Boulevard | 8062 | 46-0496926 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad-El Dorado, Inc. | AR | 4000 Meridian Boulevard | 8062 | 62-1628508 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad-Navarro Regional Hospital Subsidiary, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1681610 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tunkhannock Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-4566015 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Van Buren H.M.A., LLC | AR | 4000 Meridian Boulevard | 8062 | 58-1725652 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Venice HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 20-1852812 | ||||
| Franklin, Tennessee 37067 | ||||||||
| VHC Medical, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769671 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Vicksburg Healthcare, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1752111 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Victoria Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1760818 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Victoria of Texas, L.P. | DE | 4000 Meridian Boulevard | 8062 | 62-1754940 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Virginia Hospital Company, LLC | VA | 4000 Meridian Boulevard | 8062 | 02-0691406 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Warren Ohio Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-3190619 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Warren Ohio Rehab Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-3190578 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Watsonville Hospital Corporation | DE | 4000 Meridian Boulevard | 8062 | 91-1894113 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Waukegan Hospital Corporation | IL | 4000 Meridian Boulevard | 8062 | 20-3978400 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Waukegan Illinois Hospital Company, LLC | IL | 4000 Meridian Boulevard | 8062 | 20-3978521 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Weatherford Hospital Corporation | TX | 4000 Meridian Boulevard | 8062 | 20-5694260 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Weatherford Texas Hospital Company, LLC | TX | 4000 Meridian Boulevard | 8062 | 20-5694301 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Webb Hospital Corporation | DE | 4000 Meridian Boulevard | 8062 | 20-0167530 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Webb Hospital Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-0167590 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Wesley Health System LLC | DE | 4000 Meridian Boulevard | 8062 | 52-2050792 | ||||
| Franklin, Tennessee 37067 | ||||||||
| West Grove Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 25-1892279 | ||||
| Franklin, Tennessee 37067 | ||||||||
| WHMC, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762551 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Wilkes-Barre Behavioral Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3632720 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Wilkes-Barre Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3632542 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Wilkes-Barre Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3632648 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Williamston Hospital Corporation | NC | 4000 Meridian Boulevard | 8062 | 62-1749107 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Winder HMA, LLC | GA | 4000 Meridian Boulevard | 8062 | 20-3749930 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Women & Children’s Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762556 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Woodland Heights Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762558 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Woodward Health System, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762418 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Yakima HMA, LLC | WA | 4000 Meridian Boulevard | 8062 | 45-0506909 | ||||
| Franklin, Tennessee 37067 | ||||||||
| York Pennsylvania Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 32-0360922 | ||||
| Franklin, Tennessee 37067 | ||||||||
| York Pennsylvania Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-4082660 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Youngstown Ohio Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-3074094 | ||||
| Franklin, Tennessee 37067 | ||||||||
Item 1. General Information. Furnish the following information as to the trustee:
| (a) | Name and address of each examining or supervising authority to which it is subject. |
Federal Reserve Bank of Atlanta, 1000 Peachtree Street NE, Atlanta, Georgia 30309-4470
Alabama State Banking Department, P.O. Box 4600, Montgomery, Alabama 36103-4600
| (b) | Whether it is authorized to exercise corporate trust powers. |
The Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
No responses are included for Items 3-15 of this Form T-1 because to the best of the Trustee’s knowledge, the obligor is not in default as provided under Item 13.
Item 16. List of Exhibits.
| Exhibit 1. | Articles of Incorporation of the Trustee, attached as Exhibit 1. | |
| Exhibit 2. | Not applicable. | |
| Exhibit 3. | Authorization of the Trustee to exercise corporate trust powers (incorporated by reference to Exhibit 3 to Form T-1, Registration No. 22-21909). | |
| Exhibit 4. | Bylaws of the Trustee, attached as Exhibit 4 | |
| Exhibit 5. | Not applicable. | |
| Exhibit 6. | The consent of the Trustee required by Section 321(b)of the Act, attached as Exhibit 6. | |
| Exhibit 7. | A copy of the latest report of condition of the Trustee published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. | |
| Exhibit 8. | Not applicable. | |
| Exhibit 9. | Not applicable. | |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Regions Bank, an Alabama banking corporation, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Nashville and State of Tennessee on the 6th day of May, 2015.
| REGIONS BANK | ||
| By: | /s/ Paul Williams | |
| Name: Paul Williams | ||
| Title: Vice President | ||
Exhibit 1 to Form T-1
ARTICLES OF INCORPORATION OF THE TRUSTEE
This instrument prepared by:
Charles C. Pinckney
Adams and Reese LLP
1901 6th Avenue North, Suite 3000
Birmingham, Alabama 35203
ARTICLES OF AMENDMENT TO
ARTICLES OF INCORPORATION
OF
REGIONS BANK
REGIONS BANK, a corporation organized and existing under the laws of the State of Alabama, hereby certifies as follows:
1.) The name of the corporation is Regions Bank.
2.) This restatement of the Articles of Incorporation restates and integrates the amendments to the Articles of Incorporation as previously filed and further amends the Articles of Incorporation by amending Article 6 of the Articles of Incorporation as previously filed.
3.) The text of the Restated Articles of Incorporation reads as herein set forth in full:
Page 1 of 6
RESTATED ARTICLES OF INCORPORATION
OF
REGIONS BANK
1. The name of this corporation shall be Regions Bank.
2. The principal place of business shall be 1900 Fifth Avenue North, Birmingham, Alabama. The general business of Regions Bank (the “Bank”) shall be conducted at its main office and its branches and other facilities.
3. The Bank shall have the following objects, purposes and powers:
a. To sue and be sued, complain and defend, in its corporate name.
b. To have a corporate seal which may be altered at pleasure, and to use the same by causing it, or a facsimile thereof, to be impressed or affixed or in any other manner reproduced.
c. To purchase, take, receive, lease, or otherwise acquire, own, hold, improve, use and otherwise deal in and with, real or personal property, or any interest therein, wherever situated.
d. To sell, convey, mortgage, pledge, lease, exchange, transfer and otherwise dispose of all or any part of its property and assets, subject to the limitations hereinafter prescribed.
e. To lend money and use its credit to assist its employees.
f. To purchase, take, receive, subscribe for, or otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge, or otherwise dispose of, and otherwise use and deal in and with, shares or other interests in, or obligations of, other domestic or foreign corporations, associations, partnerships or individuals, or direct or indirect obligations of the United States or of any other government, state, territory, governmental district, or municipality or of any instrumentality thereof as may be permitted by law or appropriate regulations.
g. To make contracts, guarantees, and indemnity agreements and incur liabilities, borrow money at such rates of interest as the corporation may determine, issue its notes, bonds, and other obligations, and secure any of its obligations by mortgage, pledge of, or creation of security interests in, all or any of its property, franchises, or income, or any interest therein, not inconsistent with the provisions of the Constitution of Alabama as the same may be amended from time to time.
h. To lend money for its corporate purposes, invest and reinvest its funds, and take and hold real and personal property as security for the payment of funds so loaned or invested.
Page 2 of 6
i. To conduct its business, carry on its operations and have offices and exercise the powers granted by this Article, within or without the State of Alabama.
j. To elect or appoint and remove officers and agents of the Bank, and define their duties and fix their compensation.
k. To make and alter by its board of directors bylaws not inconsistent with its articles of incorporation or with the laws of this state for the administration and regulation of the affairs of the Bank.
1. To make donations for the public welfare or for charitable, scientific, or educational purposes.
m. To transact any lawful business which the board of directors shall find will be in aid of governmental policy.
n. To pay pensions and establish pension plans, pension trusts, profit sharing plans, stock bonus plans, stock option plans and other incentive plans for any or all of its directors, officers and employees.
o. To be a promoter, incorporator, partner, member, trustee, associate, or manager of any domestic or foreign corporation, partnership, joint venture, trust, or other enterprise.
p. To consolidate or merge, before or after the completion of its works or plants, in the manner herein provided, with any other foreign or domestic corporation or corporations engaged in the business of banking or trust companies doing a banking business subject to the limitations hereinafter prescribed.
q. To have and exercise all powers permitted by the laws of Alabama necessary or convenient to effect its purposes.
r. To discount bills, notes or other evidences of debt.
s. To receive and pay out deposits, with or without interest, pay checks, and impose charges for any services.
t. To receive on special deposit money, bullion or foreign coins or bonds or other securities.
u. To buy and sell foreign and domestic exchanges, gold and silver bullion or foreign coins, bonds, bills of exchange, notes and other negotiable paper.
v. To lend money on personal security or upon pledges of bonds, stocks or other negotiable securities.
w. To take and receive security by mortgage, security or otherwise on property, real and personal.
Page 3 of 6
x. To become trustee for any purpose and be appointed and act as executor, administrator, guardian, receiver, or fiduciary.
y. To lease real and personal property upon specific request of a customer, provided it complies with any applicable Alabama laws regulating leasing real property or improvements thereon to others.
z. To perform computer, management and travel agency services for others.
aa. To subscribe to the capital stock and become a member of the federal reserve system and comply with rules and regulations thereof.
bb. To do any business and exercise directly or through operating subsidiaries any powers incident to the business of banks.
4. The duration of the corporation shall be perpetual.
5. The Board of Directors is expressly authorized from time to time to fix the number of Directors which shall constitute the entire Board, subject to the following:
a. The number of Directors constituting the entire Board shall be fixed from time to time by vote of a majority of the entire Board, provided, however, that the number of Directors shall not be reduced so as to shorten the term of any Director at the time in office, and provided further, shall not be less than three nor more than twenty-five (25). Each Director shall be the record owner of the requisite number of shares of common stock of the Bank’s parent bank holding company fixed by the appropriate regulatory authorities.
b. Notwithstanding any other provisions of the Articles of Incorporation or the bylaws of the Bank (and notwithstanding the fact that some lesser percentage may be specified by law, these Restated Articles of Incorporation or the bylaws of the Bank), any Director or the entire Board of Directors of the Bank may be removed at any time, with or without cause by the affirmative vote of the holders of ninety percent (90%) or more of the outstanding shares of capital stock of the Bank entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of the stockholders called for that purpose.
6. The aggregate number of shares of capital stock which the Bank shall have authority to issue is thirty thousand five hundred forty six (30,546) shares, which shall be common stock, par value five dollars ($5.00) per share (the “Common Stock”). The Bank shall not issue fractional shares of stock, but shall pay in cash the fair value of fractions of a share as of the time when those otherwise entitled to receive such fractions are determined.
a. Shareholders shall not have pre-emptive rights to purchase shares of any class of capital stock of the Bank. The Bank, at any time and from time to time, may authorize and issue debt obligations, whether or not subordinated, without the approval of the shareholders.
Page 4 of 6
b. Authority is hereby expressly granted to the Board of Directors from time to time to issue any authorized but unissued shares of Common Stock for such consideration and on such terms as it may determine. Every share of Common Stock of the Bank shall have one vote at any meeting of the shareholders and may be voted by the shareholders of record either in person or by proxy.
c. In the event of any liquidation, dissolution, or winding up-of the Bank or upon the distribution of the assets of the Bank, the assets of the Bank remaining after satisfaction of all obligations and liabilities shall he divided and distributed among the holders of the Common Stock ratably. Neither the merger or consolidation of the Bank with another corporation nor the sale or lease of all or substantially all of the assets of the Bank shall be deemed to be a liquidation, dissolution, or winding up of the Bank or a distribution of its assets.
d. The holders of Common Stock shall have the exclusive power to vote and shall have one vote in respect of each share of such stock held by them.
7. The Chief Executive Officer, Secretary, Board of Directors, or holder(s) of at least 90% of the issued and outstanding voting stock of the Bank may call a special meeting of shareholders at any time. Unless otherwise provided by the laws of Alabama, notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be given by first-class mail, postage prepaid, mailed at least ten days prior to the date of such meeting to each shareholder of record at his address as shown upon the stock transfer book of this Bank.
8. The Bank reserves the right to amend, alter, change or repeal any provision contained in these Restated Articles of Incorporation, in the manner now or hereafter provided by law, at any regular or special meeting of the shareholders, and all rights conferred upon officers, directors and shareholders of the Bank hereby are granted subject to this reservation.
9. The Bank shall indemnify its officers, directors, employees, and agents to the fullest extent permitted by the Constitution and laws of the State of Alabama.
Page 5 of 6
4.) This amendment to and restatement of the Articles of Incorporation was duly adopted by vote of the directors of the Bank pursuant to Section 10A-2-10.03 of the Alabama Business Corporation Law and was approved by the sole shareholder in accordance with Section 10A-2-10.03, by unanimous consent of the holder of 21,546 shares of common stock, constituting all of the shares of capital stock of the Bank outstanding, indisputably represented, and entitled to vote on the amendment. The date of adoption of the Restated Articles of Incorporation was July 17, 2014.
IN WITNESS WHEREOF, said Regions Bank has caused this certificate to be signed by Fournier J. Gale, III, its Senior Executive Vice President, General Counsel and Corporate Secretary, this 17th day of July, 2014.
| REGIONS BANK | ||
| By: | /s/ Fournier J. Gale, III | |
| Fournier J. Gale, III | ||
| Senior Executive Vice President, General | ||
| Counsel and Corporate Secretary | ||
Page 6 of 6
STATE OF ALABAMA
MONTGOMERY COUNTY
I, John D. Harrison, as Superintendent of Banks for the State of Alabama, do hereby certify that I have fully and duly examined the foregoing Articles of Amendment whereby the shareholder of Regions Bank, a banking corporation located at Birmingham, Alabama, proposes to Restate the Articles of Incorporation.
See attached Articles of Amendment which Restate the Articles of Incorporation of Regions Bank.
I do hereby certify that said Amendment of the Articles of Incorporation appear to be in substantial conformity with the requirements of law and they are hereby approved. Upon the filing of the same, together with this Certificate of Approval, with the proper agency as required by law, the Restated Articles of Incorporation of said bank shall be effective.
Given under my hand and seal of office this the 30th day of July, 2014.
| /s/ John D. Harrison | ||
| John D. Harrison | ||
| Superintendent of Banks | ||
Jefferson County
I, the Undersigned, as Judge of Probate in and for said County, in said State, hereby certify that the foregoing is a full, true and correct copy of the instrument with the filing of same as appears of record in this office in vol. 201415 page 9638 Given under my hand and official seal, this the 31st day of July, 2014.
| /s/ Alan L. King |
| Judge of Probate |
Exhibit 4 to Form T-1
BY-LAWS OF THE TRUSTEE
BY-LAWS OF
REGIONS BANK
(As amended July 18, 2013)
ARTICLE I. OFFICES
Section 1. Registered Office.
The registered office shall be established and maintained at the office of the CSC Lawyers Incorporating Service, Inc., in the City of Montgomery, in the County of Montgomery, in the State of Alabama, and said corporation shall be the registered agent of this Bank in charge thereof.
Section 2. Other Offices.
The Bank may have other offices, either within or without the State of Alabama, at such place or places as the Board of Directors may from time to time appoint or the business of the Bank may require.
Section 3. Principal Place of Business.
The principal place of business of the Bank shall be in Birmingham, Alabama.
ARTICLE II. MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting.
Annual meetings of stockholders for the election of Directors and for such other business as may be stated in the notice of the meeting, shall be held at such place, either within or without the State of Alabama, and at such time and date as the Board of Directors, by resolution, shall determine and as set forth in the notice of the meeting.
At each annual meeting, the stockholders entitled to vote shall elect Directors, and they may transact such other corporate business as may properly come before the meeting.
Section 2. Special Meetings.
Special meetings of the stockholders for any purpose or purposes, other than the election of Directors, may be called at any time by the Chairman of the Board, the Chief Executive Officer, the President, the Secretary, or by resolution of the Directors. Special meetings of stockholders may be held at such time and place, within or without the State of Alabama, as shall be stated in the notice of the meeting.
Section 3. Voting.
The vote of a majority of the votes cast by the shares entitled to vote on any matter at a meeting of stockholders at which a quorum is present shall be the act of the stockholders on that matter, except as otherwise required by law or by the articles of incorporation of the Bank.
Page 1 of 11
Section 4. Quorum.
A majority of the outstanding shares of the Bank entitled to vote, represented in person or by proxy, shall constitute a quorum at meetings of stockholders. If less than a majority of the outstanding shares are represented, a majority of the shares so represented may adjourn the meeting from time to time without further notice, but until a quorum is secured no other business may be transacted. The stockholders present at a duly organized meeting may continue to transact business until an adjournment notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
ARTICLE III. DIRECTORS
Section 1. Number and Term.
The number of Directors which shall constitute the whole Board of Directors shall be fixed, from time to time, by resolutions adopted by the Board of Directors, but shall not be less than three persons. The number of Directors shall not be reduced so as to shorten the term of any Director at the time in office.
At each annual meeting of stockholders, all Directors shall be elected for terms of one year, and except as hereinafter provided, each Director shall hold office until the next annual meeting or until his or her successor shall. have been elected and qualified, or until his or her earlier retirement, death, resignation or removal. Directors need not be residents of Alabama.
Section 2. Chairman of the Board and Vice Chairman of the Board.
The Board of Directors shall by majority vote designate from time to time from among its members a Chairman of the Board. The Chairman of the Board shall preside at all meetings of the stockholders and of the Board of Directors of the Bank. He or she shall have and perform such duties as prescribed by the By-Laws and by the Board of Directors. The position of Chairman of the Board is a Board position, provided however, the position of Chairman of the Board may be held by a person who is also an officer of the Bank.
The Board of Directors may by majority vote designate from time to time from among its members one or more Vice Chairmen of the Board. A Vice Chairman of the Board shall preside at all meetings of the stockholders and of the Board of Directors of the Bank which the Chairman of the Board shall be unable to attend. He or she shall assist the Chairman of the Board in the exercise of his or her duties and shall have and perform such duties as are prescribed from time to time by the Board of Directors. In the event of the death or incapacity of the Chairman of the Board, he or she shall perform all the duties of the Chairman of the Board until the next annual meeting of the stockholders or until the Board shall have sooner elected a successor Chairman of the Board. The position of Vice Chairman of the Board is a Board position, provided however, that the position of Vice Chairman of the Board may be held by a person who is also an officer of the Bank.
In the absence of the Chairman of the Board and Vice Chairman of the Board or in case of their inability to act; the Independent Lead Director, if at the time a Director of the Bank has been designated by the Board of Directors as such, shall have and exercise all the powers and duties of such office and shall preside at all meetings of the Board of Directors. If at any Board of Directors meeting none of such persons is present or able to act, the Board of Directors shall select one of its members as acting chair of the meeting or portion thereof.
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Section 3. Resignations.
Any Director may resign at any time. Such resignation shall be made in writing, and shall take effect at the time of its receipt by the Chairman of the Board, Chief Executive Officer, the President, or the Secretary or at such other time as may be specified therein. The acceptance of a resignation shall not be necessary to make it effective.
Section 4. Vacancies.
If the office of any Director becomes vacant, the remaining Directors in office, though less than a quorum, by a majority vote, may appoint any qualified person to fill such vacancy, who shall hold office for the unexpired term and until his successor shall be duly chosen.
Section 5. Removal.
Any Director may be removed at any time, with or without cause, by the affirmative vote of the holders of a majority of the outstanding shares of capital stock of the Bank entitled to vote generally in the election of Directors considered for this purpose as one class cast at a meeting of the stockholders called for that purpose.
Section 6. Powers.
The Board of Directors shall exercise all the powers of the Bank except such as are by law, by the Articles of Incorporation of the Bank or pursuant to the Bank’s bylaws conferred upon or reserved to the stockholders.
Section 7. Meetings.
A regular meeting of the Board of Directors shall be held immediately before or after the annual meeting of stockholders. Additional regular meetings of the Directors may be held without notice at such places and times as shall be determined from time to time by resolution of the Directors.
Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, the President, or by the Secretary on the written request of a majority of the Board of Directors on at least two days’ notice to each Director and shall be held at such place or places as may be determined by the Directors, or as shall be stated in the call of the meeting.
Unless otherwise restricted by the Articles of Incorporation or these By-Laws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
Section 8. Quorum.
A majority of the Directors shall constitute a quorum for the transaction of business. If at any meeting of the Board of Directors there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at the meeting which shall be so adjourned. Notwithstanding the withdrawal of enough Directors to leave less than a quorum, the Directors present at a duly organized meeting may continue to transact business until adjournment.
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Section 9. Compensation.
Directors shall not receive any stated salary for their services as Directors or as members of committees, except that by resolution of the Board of Directors, retainer fees, meeting fees, and expenses of attendance at meetings may be authorized. Nothing herein contained shall be construed to preclude any Director from serving the Bank in any other capacity as an officer, agent or otherwise, and receiving compensation therefore.
Section 10. Action Without Meeting.
Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof, may be taken without a meeting, if prior to such action a written consent thereto is signed by all members of the Board of Directors, or of such committee as the case may be, and such written consent is filed with the minutes of proceedings of the Board of Directors or committee.
Section 11. Committees.
A majority of the whole Board of Directors shall have the authority to designate one or more committees, each committee to consist of one or more of the Directors of the Bank. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the Board or in these By-Laws, shall have and may exercise the powers of the Board of Directors in the management of the business and affairs of the Bank, and may authorize the seal of the Bank to be affixed to all papers which may require it; provided, however, that in the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not the member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.
Section 12. Eligibility.
No person shall be eligible to serve as Director of the Bank unless such person shall be the owner of shares of stock of the parent holding company of the number and held in the manner sufficient to meet the requirements of any applicable law or regulation in effect requiring the ownership of Directors’ qualifying shares.
Section 13. Directors Protected.
Each Director shall in the performance of his or her duties be fully protected in relying in good faith upon reports made to the Directors by the officers of the Bank or by state or federal bank examiners or by any independent accountant or by any appraiser selected with reasonable care, or by counsel, or by a committee of the Board, or in relying in good faith upon other records or books of account of the Bank.
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ARTICLE IV. OFFICERS
Section 1. Officers, Elections, Terms.
The officers of the Bank shall be a Chief Executive Officer; a President; one or more Regional or Local Presidents if the Board so determines; one or more Vice Presidents, who may be designated Senior Executive Vice Presidents, Executive Vice Presidents, Senior Vice Presidents, Vice Presidents, and Assistant Vice Presidents; a Secretary; one or more Assistant Secretaries; a Chief Financial Officer; a Controller; an Auditor; and such other officers as may be deemed appropriate. All of such officers shall be appointed annually by the Board of Directors to serve for a term of one year and until their respective successors are appointed and qualified or until such officer’s earlier death, resignation, retirement, or removal, except that the Board of Directors may delegate the authority to appoint officers holding the position of Senior Executive Vice President and below in accordance with procedures established or modified by the Board from time to time. Those Officers who serve in the Trust Department shall be so designated by the word “Trust” in their title. None of the officers of the Bank need be Directors. More than one office may be held by the same person.
Section 2. Chief Executive Officer.
The Board of Directors shall appoint a Chief Executive Officer of the Bank. The Chief Executive Officer is the most senior executive officer of the Bank, and shall be vested with authority to act for the Bank in all matters and shall have general supervision of the Bank and of its business affairs, including authority over the detailed operations of the Bank and over its personnel, with full power and authority during intervals between sessions of the Board to do and perform in the name of the Bank all acts and deeds necessary or proper, in his or her opinion, to be done and performed and to execute for and in the name of the Bank all instruments, agreements, and deeds which may be authorized to be executed in behalf of the Bank or which may be required by law. The Chief Executive Officer may, but need not, also hold the office of President.
Section 3. President.
The President shall, subject to the control of the Board of Directors and of any committee of the Board having authority in the premises, have, and may exercise the authority to act for the Bank in all ordinary matters and perform other such duties as directed by the By-Laws, the Board of Directors, or the Chief Executive Officer. Among the officers of the Bank, the President is subordinate to only the Chief Executive Officer and is senior to the other officers of the Bank. The authority of the President shall include authority over the detailed operations of the Bank and over its personnel with full power and authority during intervals between sessions of the Board to do and perform in the name of the Bank all acts and deeds necessary or proper, in his or her opinion, to be done and performed and to execute for and in the name of the Bank all instruments, agreements, and deeds which may be authorized to be executed in behalf of the Bank or which may be required by law.
Section 4. Vice Presidents.
The Vice Presidents shall, subject to the control of the Board of Directors, the Chief Executive Officer or the President, have and may exercise the authority vested in them in all proper matters, including authority over the detailed operations of the Bank and over its personnel.
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Section 5. Chief Financial Officer.
The Chief Financial Officer or his designee shall have custody of all funds of the Bank. He or his designee shall have and perform such duties as are incident to the office of Chief Financial Officer and such other duties as may from time to time be assigned to him by the Board of Directors, the Chief Executive Officer, or the President.
Section 6. Secretary.
The Secretary shall keep minutes of all meetings of the stockholders and the Board of Directors unless otherwise directed by those bodies. The Secretary, or in his absence, any Assistant Secretary, shall attend to the giving and serving of all notices of the Bank. He shall perform all the duties incident to the office of Secretary, subject to the control of the Board of Directors, and shall do and perform such other duties as may from time to time be assigned by the Board of Directors, the Chairman of the Board, the Chief Executive Officer, or the President.
Section 7. Controller.
The Controller shall, under the direction of the Chief Executive Officer, the President, the Chief Financial Officer, or a more senior officer, have general supervision and authority over all reports required of the Bank by law or by any public body or officer or regulatory authority pertaining to the condition of the Bank and its assets and liabilities. The Controller shall have general supervision of the books and accounts of the Bank and its methods and systems of recording and keeping accounts of its business transactions and of its assets and liabilities. The Controller shall be responsible for preparing statements showing the financial condition of the Bank and shall furnish such reports and financial records as may be required of him or her by the Board of Directors or by the Chief Executive Officer, the President, the Chief Financial Officer, or other more senior officer.
Section 8. Auditor.
The Auditor’s office may be filled by an employee of the Bank or his or her duties may be performed by an employee or committee of the parent company of the Bank. The Auditor shall have general supervision of the auditing of the books and accounts of the Bank, and shall continuously and from time to time check and verify the Bank’s transactions, its assets and liabilities, and the accounts and doings of the officers, agents and employees of the Bank with respect thereto. The Auditor whether an employee of the Bank or of its parent shall be directly accountable to and under the jurisdiction of the Board of Directors and, if applicable, its designated committee, acting independently of all officers, agents and employees of the bank. The Auditor shall render reports covering matters in his or her charge regularly and upon request to the Board and, if applicable, its designated committee.
Section 9. Other Officers and Agents.
The Board of Directors may appoint such other officers and agents as it may deem advisable, who shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors. The functions of a cashier of the Bank may be performed by the Controller or any other officer of the Bank whose area of responsibility includes the function to be performed.
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Section 10. Officer in Charge of Wealth Management.
The officer in charge of Wealth Management shall be designated as such by the Board of Directors and shall exercise general supervision and management over the affairs of Private Wealth Management, Institutional Services, and Wealth Management Operations and Support, which groups are responsible for exercise of the Bank’s trust powers. That officer is hereby empowered to appoint all necessary agents or attorneys; also to make, execute and acknowledge all checks, bonds, certificates, deeds, mortgages, notes, releases, leases, agreements, contracts, bills of sale, assignments, transfers, powers of attorney or of substitution, proxies to vote stock, or any other instrument in writing that may be necessary in the purchase, sale, mortgage, lease, assignment, transfer, management or handling, in any way of any property, of any description held or controlled by the Bank in any fiduciary capacity. Said officer shall have such other duties and powers as shall be designated by the Board of Directors.
Section 11. Other Officers in Private Wealth Management, Institutional Services, and Wealth Management Operations and Support.
The officer in charge of Wealth Management shall appoint officers responsible for the activities of Private Wealth Management, Institutional Services, and Wealth Management Operations and Support. Various other officers as designated by the officers responsible for the activities of Private Wealth Management, Institutional Services, and Wealth Management Operations and Support are empowered and authorized to make, execute, and acknowledge all checks, bonds, certificates, deeds, mortgages, notes, releases, leases, agreements, contracts, bills of sale, assignments, transfers, powers of attorney or substitution, proxies to vote stock or any other instrument in writing that may be necessary to the purchase, sale, mortgage, lease, assignments, transfer, management or handling in any way, of any property of any description held or controlled by the Bank in any fiduciary capacity.
Section 12. Removal and Retirement of Officers.
At its pleasure, the Board of Directors may remove any officer from office at any time by a majority vote of the Board, provided however that the terms of any employment or compensation contract shall be honored according to its terms. An individual’s status as an officer will terminate without the necessity of any other action or ratification immediately upon termination for any reason of the individual’s employment by the Bank.
ARTICLE V. MISCELLANEOUS
Section 1. Certificates of Stock.
Certificates of stock of the Bank shall be signed by the President and the Secretary of the Bank, which signatures may be represented by a facsimile signature. The certificate may be sealed with the seal of the Bank or an engraved or printed facsimile thereof. The certificate represents the number of shares of stock registered in certificate form owned by such holder.
Section 2. Lost Certificates.
In case of the loss or destruction of any certificate of stock, the holder or owner of same shall give notice thereof to the Chief Executive Officer, the President, any Vice President, or the Secretary of the Bank and, if such holder or owner shall desire the issue of a new certificate in the place of the one lost or destroyed, he or she shall make affidavit of such loss or destruction and deliver the same to any one of said officers and accompany the same with a bond with surety satisfactory to the Bank to indemnify the
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Bank and save it harmless against any loss, cost or damage in case such certificate should thereafter be presented to the Bank, which affidavit and bond shall be, at the discretion of the deciding party listed in this Section 2, unless so ordered by a court having jurisdiction over the matter, approved or rejected by the Board of Directors or by the Chief Executive Officer or by the President or an Executive or Senior Vice President before the issue of any new certificate.
Section 3. Transfer of Shares.
Title to a certificate and to the shares represented thereby can be transferred only by delivery of the certificate endorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby, or by delivery of the certificate and a separate document containing a written assignment of the certificate or a power of attorney to sell, assign, or transfer the same or the shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby. Such assignment or power of attorney maybe either in blank or to a specified person.
Section 4. Fractional Shares.
No fractional part of a share of stock shall ever be issued by this Bank.
Section 5. Stockholders Record Date.
In order that the Bank may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
Section 6. Dividends.
Subject to the provisions of the Articles of Incorporation, the Board of Directors may, out of funds legally available therefore at any regular or special meeting, declare dividends upon the capital stock of the Bank as and when they deem expedient. Before declaring any dividend there may be set apart out of any fund of the Bank available for dividends, such sum or sums as the Directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the Directors shall deem conducive to the interests of the Bank. No dividends shall be declared which exceed the amounts authorized by applicable laws and regulations or are otherwise contrary to law.
Section 7. Seal.
The corporate seal of the Bank shall be circular in shape and shall include the words “Regions Bank” around the outer edge of the circle and the word “Seal” in the center of the circle. The seal may also include appropriate descriptors, such as the words: “An Alabama Banking Corporation”. The Secretary of the Bank shall have custody of the seal and is authorized to affix the same to instruments, documents, and papers as required by law or as customary or appropriate in the Secretary’s judgment and
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discretion. Without limiting the general authority of the Board of Directors of the Bank to name, appoint, remove, and define the duties of officers of the Bank, the Secretary is further authorized to cause reproductions of the seat to be made, distributed to, and used by officers and employees of the Bank whose duties and responsibilities involve the execution and delivery of instruments, documents, and papers bearing the seal of the Bank. In this regard, the Secretary is further authorized to establish, implement, interpret, and enforce policies and procedures governing the use of the seal and the authorization by the Secretary of officers and employees of the Bank to have custody of and to use the seal. Such policies and procedures may include (i) the right of the Secretary to appoint any Bank employee as an Assistant Secretary of the Bank, if such appointment would, in the Secretary’s judgment, be convenient with respect to such employee’s custody and use of a seal and/or (ii) the right of the Secretary to authorize Bank employees to have and use seals as delegates of the Secretary without appointing such employees as Assistant Secretaries of the Bank.
Section 8. Fiscal Year.
The fiscal year of the Bank shall be the calendar year.
Section 9. Checks, Drafts, Transfers, etc.
The Chief Executive Officer, the President, any Regional or Local President, any Vice President or Assistant Vice President, any Branch Manager or any other employee designated by the Board of Directors, is authorized and empowered on behalf of the Bank and in its name to sign and endorse checks and warrants, to draw drafts, to issue and sign cashier’s checks, to guarantee signatures, to give receipts for money due and payable to the Bank, to sell, assign and transfer shares of capital stock, bonds, or other personal property or securities standing in the name of or held by the Bank, whether in its own right or in any fiduciary capacity, and to make or join in such consents, requests or commitments with respect to the same as may be appropriate or authorized as to the holder thereof, and to sign such other papers and do such other acts as are necessary in the performance of his or her duties. The authority conveyed to any employee designated by the Board may be limited by general or specific resolution of the Board.
Section 10. Notice and Waiver of Notice.
Whenever any notice is required by these By-Laws to be given, personal notice is not meant unless expressly so stated, and any notice so required shall be deemed to be sufficient if given by depositing the same in the United States, mail, postage, prepaid, or by telegram, teletype, facsimile transmission or other form of wire, wireless, or other electronic communication or by private carrier addressed to the person entitled thereto at his address as it appears on the records of the Bank, and such notice shall be deemed to have been given on the date of such mailing. Stockholders not entitled to vote shall not be entitled to receive notice of meetings except as otherwise provided by statute.
Whenever any notice whatever is required to be given under the provisions of any law, or under the provisions of the Articles of Incorporation of the Bank or these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.
Section 11. Right of Indemnity.
To the full extent allowed by Section 10-2B-8.5 et seq. of the Code of Alabama (1975), or any statute amendatory or supplemental thereof, the Bank shall indemnify and held harmless each director or officer now or hereafter serving the Bank against any loss and reasonable expenses actually and necessarily incurred by him or her in connection with the defense of any claim, or any action, suit or
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proceeding against him or her or in which he or she is made a party, by reason of his or her being or having been a Director or officer of the Bank, or who, while a Director or officer of the Bank, is or was serving as at the Bank’s request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. Such right of indemnity shall not be deemed exclusive of any other rights to which such Director or officer may be entitled under any statute, article of incorporation, rule of law, other bylaw, agreement, vote of stockholders or directors, or otherwise. Nor shall anything herein contained restrict the right of the Bank to indemnify or reimburse any officer or Director in any proper case even though not specifically provided for herein. The Bank may purchase and maintain insurance in such amounts as the Board of Directors deems appropriate on behalf of said Directors or officers so as to offset any potential liability asserted against said Directors or officers acting in such capacity as described in these By-Laws.
Section 12. Execution of Instruments and Documents.
The Chief Executive Officer, or the President, or any Regional or Local President or any Vice President is authorized, in his or her discretion, to do and perform any and all corporate and official acts in carrying on the business of the Bank, including, but not limited to, the authority to make, execute, acknowledge, accept and deliver any and all deeds, mortgages, releases, bills of sale, assignments, transfers, leases (as lessor or lessee), powers of attorney or of substitution, servicing or sub-servicing agreements, vendor agreements, proxies to vote stock or any other instrument in writing that may be necessary in the purchase, sale, lease, assignment, transfer, discount, management or handling in any way of any property of any description held, controlled or used by Bank or to be held, controlled or used by Bank, either in its own or in its fiduciary capacity and including the authority from time to time to open bank accounts with the Bank or any other institution, to borrow money in such amounts for such lengths of time, at such rates of interest and upon such terms and conditions as any said officer may deem proper and to evidence the indebtedness thereby created by executing and delivering in the name of the Bank promissory notes or other appropriate evidences of indebtedness, and to guarantee the obligations of any subsidiary or affiliate of the Bank. The enumeration herein of particular powers shall not restrict in any way the general powers and authority of said officers.
By way of example and not limitation, such officers of the Bank are authorized to execute, accept, deliver and issue, on behalf of the Bank and as binding obligations of Bank, such agreements and instruments as may be within the officer’s area of responsibility, including, as applicable, agreements and related documents (such as schedules, confirmations, transfers, assignments, acknowledgments, and other documents) relating to derivative transactions, loan or letter of credit transactions, syndications, participations, trades, purchase and sale or discount transactions, transfers and assignments, servicing and sub-servicing agreements, vendor agreements, securitizations, and transactions of whatever kind or description arising in the conduct of the Bank’s business.
The authority to execute and deliver documents, instruments, and agreements may be limited by resolution of the Board of Directors, by a committee of the Board of Directors, by the Chief Executive Officer, or by the President, by reference to subject matter, category, amount, geographical location, or any other criteria, and may be made subject to such policies, procedures, and levels of approval as may be adopted or amended from time to time.
Section 13. Voting Bank’s Securities.
Unless otherwise ordered by the Board of Directors, the Chief Executive Officer, the President, any Executive Vice President or above, the Controller, the Bank’s General Counsel, and any other officer as may be designated by the Board of Directors shall have full power and authority on behalf of the Bank to attend, and to act and to vote, and to execute a proxy or proxies empowering others to attend, and to act
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and to vote, at any meetings of security holders of any of the corporations in which the Bank may hold securities and, at such meetings, such officer shall possess and may exercise any and all rights and powers incident to the ownership of such securities which, as the owner thereof, the Bank might have possessed and exercised, if present.
Section 14. Bonds of Officers and Employees.
The Board of Directors shall from time to time designate the officers and employees who shall be required to give bond and fix the amounts thereof.
Section 15. Satisfaction of Loans.
On payment of sums lent, for which security shall have been taken either by way of mortgage or other lien on real or personal property or by the pledge of collateral, whether said loans have been made from funds of the Bank or from funds held in fiduciary capacity, any officer of the Bank shall have the power and authority to enter the fact of payment or satisfaction on the margin of the record of any such security or in any other legal manner to cancel such indebtedness and to release said security, and the Chief Executive Officer or the President or any Regional or Local President or any Vice President of the Bank shall have power and authority to execute a power of attorney authorizing the cancellation, release or satisfaction of any mortgage or Other security given to the Bank in its corporate or fiduciary capacity, by such person as he or she may in his or her discretion appoint.
Section 16. Emergencies.
In the event of an emergency declared by the President of the United States or the person performing his or her functions, the officers and employees of this Bank will continue to conduct the affairs of the Bank under such guidance from the Directors as may be available except as to matters which by statute require specific approval of the Board of Directors and subject to conformance with any governmental directives or directives of the Federal Deposit Insurance Corporation during the emergency.
ARTICLE VI. AMENDMENTS
Except as otherwise provided herein or in the articles of incorporation of the Bank, these By-Laws may be amended or repealed by the affirmative vote of a majority of the Directors then holding office at any regular or special meeting of the Board of Directors, and the Stockholders may make, alter or repeal any By-Laws, whether or not adopted by them.
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Exhibit 6 to Form T-1
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, Regions Bank hereby consents that reports of examination of Regions Bank by Federal, State, Territorial or District regulatory authorities may be furnished by such regulatory authorities to the Securities and Exchange Commission upon request therefor.
Dated: May 6, 2015
| REGIONS BANK | ||
| By: | /s/ Paul Williams | |
| Paul Williams | ||
| Vice President | ||
Exhibit 7 to Form T-1
Regions Bank Legal Title of Bank Birmingham City AL 35203 State Zip Code FDIC Certificate Number: 12368 Printed on 4/30/2015 at 6:14 PM—Submitted to CDR on 4/30/2015 at 6:13 PM Consolidated Report of Condition for Insured Banks and Savings Associations for March 31, 2015 All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter. Schedule RC—Balance Sheet Assets 1. Cash and balances due from depository Institutions (from Schedule RC-A): a, Noninterest-bearing balances and currency and coin (1) b. Interest-bearing balances (2) 2. Securities: a. Held-to-maturity securities (from Schedule RC-B, column A) b. Available-for-sale securities (from Schedule RC-B, column D) 3. Federal funds sold and securities purchased under agreements to resell: a. Federal funds sold in domestic offices Dollar Amounts in Thousands RCFD dl l 811 l Mil ‘thou 0081 1,744,092 0071 4,222,958 1754 2,126,864 1773 22,312,842 RCON jaMMI 8987 0 b. Securities purchased under agreements to resell (3) 4. Loans and lease financing receivables (from Schedule RC-C): a. Loans and leases held for sale b. Loans and leases, net of unearned income c. LESS: Allowance for loan and lease losses d. Loans and leases, net of unearned income and allowance (item 4.b minus 4.c) 5. Trading assets (from Schedule RC-D) 6. Premises and fixed assets (including capitalized leases) 7. Other real estate owned (from Schedule RC-M) 8. Investments in unconsolidated subsidiaries and associated companies 9. Direct and indirect investments in real estate ventures 10. Intangible assets: a. Goodwill b. Other Intangible assets (from Schedule RC-M) 11. Other assets (from Schedule RC-F) 12. Total assets (sum of items 1 through 11) 8528 3123 78.242,30 1,097,69 RCFD 6989 65,000 B529 77,144,619 3545 424,035 2145 2,024,137 2150 136,355 2130 3656 3163 4,242,336 0426 486,200 2160 6,014,603 2170 121,434,925 (1) Indudes cash items in process of collection and unposted debits. (2) Indudes time certificates of deposit not held for trading. (3) Indudes all securities resale agreements in domestic and foreign offices, regardless of maturity. FFIEC 031 Page 16 of 84 RC-1 1.a 1.b 2.a 2.b 3,a 3.b 4.a 4.b 4.c 4.d 5 6 7 89 10.a 10.b 11 12
Regions Bank Legal Title of Bank FDIC Certificate Number: 12368 Printed on 4/30/2015 at 6:14 PM—Submitted to CDR on 4/30/2015 at 6:13 PM Schedule RC—Continued Dollar Amounts in Thousands Liabilities 13. Deposits: a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) (1) Noninterest-bearing (4) (2) Interest-bearing b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, part II) (1) Noninterest-bearing (2) Interest-bearing 14. Federal funds purchased and securities sold under agreements to repurchase: a. Federal funds purchased in domestic offices (5) 6631 6636 663 6636 33,699,80 65,297,50 237.50 b. Securities sold under agreements to repurchase (6) i95S 2,094,50: 15. Trading liabilities (from Schedule R-C D)3549 149,0 5 16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases) (from Schedule RC-M) 17. and 18. Not applicable (4) Includes noninterest-bearing demand, time, and savings deposits. (5) Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, “Other borrowed money.” (6) Includes all securities repurchase agreements in domestic and foreign offices, regardless of maturity. FFIEC 031 Page 16a of 84 RC-la 13.a 13.a.1 13.a,2 13.b 13.b.1 13.b.2 14.a 14.b 15 16
Regions Bank Legal Title of Bank FDIC Certificate Number: 12368 Printed on 4/30/2015 at 6:14 PM—Submitted to CDR on 4/30/2015 at 6:13 PM Schedule RC—Continued Dollar Amounts in Thousands RCFD hril I RH 1 Mill Thou Liabilities—Continued 19. Subordinated notes and debentures (1) 20. Other liabilities (from Schedule RC-G) 2L Total liabilities (sum of Items 13 through 20) 22. Not applicable Equity Capital Bank Equity Captal 23. Perpetual preferred stock and related surplus 24. Common stock 25. Surplus (excludes all surplus related to preferred stock) 26. a. Retained earnings b. Accumulated other comprehensive income (2) c. Other equity capital components (3) 27. a. Total bank equity capital (sum of items 23 through 26.c) b. Noncontrolling (minority) Interests in consolidated subsidiaries 28. Total equity capital (sum of items 27.a and 27.b) 29. Total liabilities and equity capital (sum of items 21 and 28) Memoranda To be reported with the March Report of Condition. 1, Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing work performed for the bank by Independent external auditors as of any date during 2014 1= Independent audit of the bank conducted In accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the bank 2 = Independent audit of the bank’s parent holding company conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the consolidated holding company (but not on the bank separately) 3 = Attestation on bank managements assertion on the effectiveness of the bank’s internal control over financial reporting by a certified public accounting firm. To be reported with the March Report of Condition. 2, Bank’s fiscal year-end date 3200 1,497,691 2930 2,074,681 2948 3838 105 191,408 0 3230 103 3839 16,726,608 3632 -367,730 B530 -115,464 A130 3210 16,243,517 3000 C G105 16,243,517 3300 121,434,926 RCFD Number 6724 2 4 = Directors’ examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state chartering authority) 5 = Directors’ examination of the bank performed by other external auditors (may be required by state chartering authority) 6 = Review of the bank’s financial statements by external auditors 7 = Compilation of the bank’s financial statements by external auditors 8 = Other audit procedures (excluding tax preparation work) 9 = No extemal audit work RCON MMDD 8678 1231 FFIEC 031 Page 17 of 84 RC-2 19 20 21 23 24 25 26.a 26.b 26.c 27.a 27.b 28 29 M.1 M.2 (1) Includes limited-life preferred stock and related surplus. (2) Includes, but is not limited to, net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, cumulative foreign currency translation adjustments, and accumulated defined benefit pension and other postretirement plan adjustments. (3) Includes treasury stock and unearned Employee Stock Ownership Plan shares.
EXHIBIT 25.2
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ¨ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
REGIONS BANK
(Exact name of trustee as specified in its charter)
| An Alabama Banking Corporation | 63-0371391 | |
| (Jurisdiction of incorporation) | (I.R.S. Employer Identification No.) |
Regions Bank
Corporate Trust Department
1901 6th Avenue North, 28th Floor
Birmingham, Alabama 35203
(Address of principal executive offices)
Paul Williams
Vice President
Regions Bank, Corporate Trust Services
150 Fourth Avenue North, Suite 900
Nashville, Tennessee 37219
(615)770-4358
(Name, address and telephone number of agent for service)
Community Health Systems, Inc.
(Exact name of obligor as specified in its charter)
| Delaware | 76-0137985 | |
| (Jurisdiction of incorporation) | (I.R.S. Employer Identification No.) |
4000 Meridian Boulevard
Franklin, Tennessee 37067
(615) 465-7000
(Address of principal executive offices)
Subordinated Debt Securities
(Title of the indenture securities)
Additional Obligors
| Exact Name of Additional Obligors |
Jurisdiction or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| CHS/Community Health Systems, Inc. | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 76-0137985 | ||||
| Abilene Hospital, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 46-0496920 | ||||
| Abilene Merger, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 46-0496918 | ||||
| Affinity Health Systems, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 20-3391769 | ||||
| Affinity Hospital, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 20-3391873 | ||||
| Amory HMA, LLC | MS | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 20-3750001 | ||||
| Anna Hospital Corporation | IL | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 36-4431843 | ||||
| Anniston HMA, LLC | AL | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 72-1346819 | ||||
| Bartow HMA, LLC | FL | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 20-1888382 | ||||
| Berwick Hospital Company, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 23-2975836 | ||||
| Big Bend Hospital Corporation | TX | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 75-2717545 | ||||
| Big Spring Hospital Corporation | TX | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 75-2574581 | ||||
| Biloxi H.M.A., LLC | MS | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 59-2754033 | ||||
| Birmingham Holdings II, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 26-2784086 | ||||
| Birmingham Holdings, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 20-3320362 | ||||
| Blackwell HMA, LLC | OK | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 36-4720244 | ||||
| Blue Island Hospital Company, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 45-4082512 | ||||
| Blue Island Illinois Holdings, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 61-1667279 | ||||
| Bluefield Holdings, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 27-2372042 | ||||
| Bluefield Hospital Company, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 27-2372291 | ||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Bluffton Health System LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1792272 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Brandon HMA, LLC | MS | 4000 Meridian Boulevard | 8062 | 64-0885458 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Brevard HMA Holdings, LLC | FL | 4000 Meridian Boulevard | 8062 | 27-3137706 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Brevard HMA Hospitals, LLC | FL | 4000 Meridian Boulevard | 8062 | 27-3141947 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Brownwood Hospital, L.P. | DE | 4000 Meridian Boulevard | 8062 | 62-1762521 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Brownwood Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762523 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Bullhead City Hospital Corporation | AZ | 4000 Meridian Boulevard | 8062 | 86-0982071 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Bullhead City Hospital Investment Corporation | DE | 4000 Meridian Boulevard | 8062 | 20-1577204 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Campbell County HMA, LLC | TN | 4000 Meridian Boulevard | 8062 | 45-2528273 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Carlisle HMA, LLC | PA | 4000 Meridian Boulevard | 8062 | 25-1887146 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Carlsbad Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762526 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Carolinas JV Holdings General, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-2227746 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Carolinas JV Holdings, L.P. | DE | 4000 Meridian Boulevard | 8062 | 26-2227809 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Central Florida HMA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964329 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Central States HMA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964397 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Centre Hospital Corporation | AL | 4000 Meridian Boulevard | 8062 | 20-4370931 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Chester HMA, LLC | SC | 4000 Meridian Boulevard | 8062 | 20-1231400 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CHHS Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-2189938 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CHS Kentucky Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1639057 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CHS Pennsylvania Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1639170 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CHS Virginia Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1639119 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| CHS Washington Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3272205 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Citrus HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 20-0195256 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Clarksdale HMA, LLC | MS | 4000 Meridian Boulevard | 8062 | 64-0869163 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Clarksville Holdings II, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-5498575 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Clarksville Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-3320418 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Cleveland Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 62-1587878 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Cleveland Tennessee Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1281627 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Clinton HMA, LLC | OK | 4000 Meridian Boulevard | 8062 | 37-1659366 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Clinton Hospital Corporation | PA | 4000 Meridian Boulevard | 8062 | 90-0003715 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Coatesville Hospital Corporation | PA | 4000 Meridian Boulevard | 8062 | 23-3069798 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Cocke County HMA, LLC | TN | 4000 Meridian Boulevard | 8062 | 45-2528314 | ||||
| Franklin, Tennessee 37067 | ||||||||
| College Station Hospital, L.P. | DE | 4000 Meridian Boulevard | 8062 | 62-1762360 | ||||
| Franklin, Tennessee 37067 | ||||||||
| College Station Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762359 | ||||
| Franklin, Tennessee 37067 | ||||||||
| College Station Merger, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1771861 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Community GP Corp. | DE | 4000 Meridian Boulevard | 8062 | 62-1648466 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Community Health Investment Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 76-0152801 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Community LP Corp. | DE | 4000 Meridian Boulevard | 8062 | 62-1648206 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CP Hospital GP, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-3904557 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CPLP, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-3904614 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Crestwood Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769644 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Crestwood Hospital LP, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762369 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| CSMC, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762362 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CSRA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-5111915 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Deaconess Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 47-0890490 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Deaconess Hospital Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-2401268 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Deming Hospital Corporation | NM | 4000 Meridian Boulevard | 8062 | 85-0438008 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Desert Hospital Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-8111921 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Detar Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1754943 | ||||
| Franklin, Tennessee 37067 | ||||||||
| DHFW Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-2817294 | ||||
| Franklin, Tennessee 37067 | ||||||||
| DHSC, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-2871473 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Dukes Health System, LLC | DE | 4000 Meridian Boulevard | 8062 | 52-2379885 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Dyersburg Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 42-1557536 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Emporia Hospital Corporation | VA | 4000 Meridian Boulevard | 8062 | 54-1924866 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Evanston Hospital Corporation | WY | 4000 Meridian Boulevard | 8062 | 83-0327475 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Fallbrook Hospital Corporation | DE | 4000 Meridian Boulevard | 8062 | 91-1918215 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Florida HMA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964255 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Foley Hospital Corporation | AL | 4000 Meridian Boulevard | 8062 | 62-1811413 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Forrest City Arkansas Hospital Company, LLC | AR | 4000 Meridian Boulevard | 8062 | 20-4217095 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Forrest City Hospital Corporation | AR | 4000 Meridian Boulevard | 8062 | 20-4216978 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Fort Payne Hospital Corporation | AL | 4000 Meridian Boulevard | 8062 | 20-4370870 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Fort Smith HMA, LLC | AR | 4000 Meridian Boulevard | 8062 | 27-1013889 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Frankfort Health Partner, Inc. | IN | 4000 Meridian Boulevard | 8062 | 35-2009540 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Franklin Hospital Corporation | VA | 4000 Meridian Boulevard | 8062 | 52-2200240 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Gadsden Regional Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 63-1102774 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Galesburg Hospital Corporation | IL | 4000 Meridian Boulevard | 8062 | 37-1485782 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Granbury Hospital Corporation | TX | 4000 Meridian Boulevard | 8062 | 75-2682017 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Granite City Hospital Corporation | IL | 4000 Meridian Boulevard | 8062 | 36-4460625 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Granite City Illinois Hospital Company, LLC | IL | 4000 Meridian Boulevard | 8062 | 36-4460628 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Greenville Hospital Corporation | AL | 4000 Meridian Boulevard | 8062 | 63-1134649 | ||||
| Franklin, Tennessee 37067 | ||||||||
| GRMC Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-8112090 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hallmark Healthcare Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 63-0817574 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hamlet H.M.A., LLC | NC | 4000 Meridian Boulevard | 8062 | 58-1741827 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Health Management Associates, Inc. | DE | 4000 Meridian Boulevard | 8062 | 61-0963645 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Health Management Associates, LP | DE | 4000 Meridian Boulevard | 8062 | 27-1601497 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Health Management General Partner I, LLC | DE | 4000 Meridian Boulevard | 8062 | 46-1721316 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Health Management General Partner, LLC | DE | 4000 Meridian Boulevard | 8062 | 46-1690736 | ||||
| Franklin, Tennessee 37067 | ||||||||
| HMA Fentress County General Hospital, LLC | TN | 4000 Meridian Boulevard | 8062 | 95-3974754 | ||||
| Franklin, Tennessee 37067 | ||||||||
| HMA Hospitals Holdings, LP | DE | 4000 Meridian Boulevard | 8062 | 26-3964154 | ||||
| Franklin, Tennessee 37067 | ||||||||
| HMA Santa Rosa Medical Center, LLC | FL | 4000 Meridian Boulevard | 8062 | 68-0045270 | ||||
| Franklin, Tennessee 37067 | ||||||||
| HMA Services GP, LLC | DE | 4000 Meridian Boulevard | 8062 | 46-1707507 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hobbs Medco, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769641 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hospital Management Associates, LLC | FL | 4000 Meridian Boulevard | 8062 | 35-1410796 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hospital Management Services of Florida, LP | FL | 4000 Meridian Boulevard | 8062 | 20-5917647 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Hospital of Barstow, Inc. | DE | 4000 Meridian Boulevard | 8062 | 76-0385534 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hospital of Fulton, Inc. | KY | 4000 Meridian Boulevard | 8062 | 61-1218106 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hospital of Louisa, Inc. | KY | 4000 Meridian Boulevard | 8062 | 61-1238190 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hospital of Morristown, Inc. | TN | 4000 Meridian Boulevard | 8062 | 62-1528689 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Jackson HMA, LLC | MS | 4000 Meridian Boulevard | 8062 | 64-0907122 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Jackson Hospital Corporation (KY) | KY | 4000 Meridian Boulevard | 8062 | 61-1285331 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Jackson Hospital Corporation (TN) | TN | 4000 Meridian Boulevard | 8062 | 42-1557525 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Jefferson County HMA, LLC | TN | 4000 Meridian Boulevard | 8062 | 45-2528414 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Jourdanton Hospital Corporation | TX | 4000 Meridian Boulevard | 8062 | 74-3011840 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Kay County Hospital Corporation | OK | 4000 Meridian Boulevard | 8062 | 20-4052833 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Kay County Oklahoma Hospital Company, LLC | OK | 4000 Meridian Boulevard | 8062 | 20-4052936 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Kennett HMA, LLC | MO | 4000 Meridian Boulevard | 8062 | 20-0248087 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Key West HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 65-0905661 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Kirksville Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 36-4373298 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Knoxville HMA Holdings, LLC | TN | 4000 Meridian Boulevard | 8062 | 45-2528116 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lakeway Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 62-1564360 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lancaster Hospital Corporation | DE | 4000 Meridian Boulevard | 8062 | 57-1010381 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Las Cruces Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 75-2905434 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lea Regional Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1760149 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lehigh HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 65-1144586 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lexington Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 42-1557533 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Longview Clinic Operations Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 75-1470252 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Longview Medical Center, L.P. | DE | 4000 Meridian Boulevard | 8062 | 62-1762420 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Longview Merger, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769639 | ||||
| Franklin, Tennessee 37067 | ||||||||
| LRH, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762421 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lutheran Health Network of Indiana, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762363 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Madison HMA, LLC | MS | 4000 Meridian Boulevard | 8062 | 03-0400182 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Marion Hospital Corporation | IL | 4000 Meridian Boulevard | 8062 | 37-1359605 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Marshall County HMA, LLC | OK | 4000 Meridian Boulevard | 8062 | 38-3862800 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Martin Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 42-1557527 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Massillon Community Health System LLC | DE | 4000 Meridian Boulevard | 8062 | 55-0799029 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Massillon Health System LLC | DE | 4000 Meridian Boulevard | 8062 | 34-1840860 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Massillon Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-0201156 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Mayes County HMA, LLC | OK | 4000 Meridian Boulevard | 8062 | 61-1670947 | ||||
| Franklin, Tennessee 37067 | ||||||||
| McKenzie Tennessee Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 42-1557531 | ||||
| Franklin, Tennessee 37067 | ||||||||
| McNairy Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 42-1557530 | ||||
| Franklin, Tennessee 37067 | ||||||||
| MCSA,L.L.C. | AR | 4000 Meridian Boulevard | 8062 | 71-0785071 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Medical Center of Brownwood, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762425 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Melbourne HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 27-3142044 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Merger Legacy Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-1344746 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Mesquite HMA General, LLC | DE | 4000 Meridian Boulevard | 8062 | 41-2035879 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Metro Knoxville HMA, LLC | TN | 4000 Meridian Boulevard | 8062 | 45-2535623 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Mississippi HMA Holdings I, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964464 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Mississippi HMA Holdings II, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964541 | ||||
| Franklin, Tennessee 37067 | ||||||||
| MMC of Nevada, LLC | DE | 4000 Meridian Boulevard | 8062 | 42-1543617 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Moberly Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 43-1651906 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Monroe HMA, LLC | GA | 4000 Meridian Boulevard | 8062 | 20-0141568 | ||||
| Franklin, Tennessee 37067 | ||||||||
| MWMC Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-8007512 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Naples HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 20-4401957 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Natchez Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 37-1756496 | ||||
| Franklin, Tennessee 37067 | ||||||||
| National Healthcare of Leesville, Inc. | DE | 4000 Meridian Boulevard | 8062 | 95-4066162 | ||||
| Franklin, Tennessee 37067 | ||||||||
| National Healthcare of Mt. Vernon, Inc. | DE | 4000 Meridian Boulevard | 8062 | 58-1622971 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Navarro Hospital, L.P. | DE | 4000 Meridian Boulevard | 8062 | 62-1762428 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Navarro Regional, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762429 | ||||
| Franklin, Tennessee 37067 | ||||||||
| NC-DSH, LLC | NV | 4000 Meridian Boulevard | 8062 | 88-0305790 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Northampton Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 52-2325498 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Northwest Arkansas Hospitals, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-5896848 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Northwest Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762430 | ||||
| Franklin, Tennessee 37067 | ||||||||
| NOV Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-8112009 | ||||
| Franklin, Tennessee 37067 | ||||||||
| NRH, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762431 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Oak Hill Hospital Corporation | WV | 4000 Meridian Boulevard | 8062 | 27-0003893 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Oro Valley Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 52-2379881 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Palmer-Wasilla Health System, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762371 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Payson Hospital Corporation | AZ | 4000 Meridian Boulevard | 8062 | 86-0874009 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Pennsylvania Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 06-1694707 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Phillips Hospital Corporation | AR | 4000 Meridian Boulevard | 8062 | 75-2976342 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Phoenixville Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-1055060 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Poplar Bluff Regional Medical Center, LLC | MO | 4000 Meridian Boulevard | 8062 | 43-1238701 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Port Charlotte HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 20-1852902 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Pottstown Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 06-1694708 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Punta Gorda HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 65-0526360 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG Georgia Holdings II, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-1344786 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG Georgia Holdings, Inc. | GA | 4000 Meridian Boulevard | 8062 | 58-2386459 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG Georgia, LP | GA | 4000 Meridian Boulevard | 8062 | 58-2387537 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Bluffton Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1792274 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Clinton County, Inc. | IN | 4000 Meridian Boulevard | 8062 | 35-2006952 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Enterprise, Inc. | AL | 4000 Meridian Boulevard | 8062 | 63-1159023 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Forrest County, Inc. | MS | 4000 Meridian Boulevard | 8062 | 62-1704095 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Fort Wayne Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 35-1946949 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Hattiesburg, Inc. | MS | 4000 Meridian Boulevard | 8062 | 62-1704097 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Massillon, Inc. | OH | 4000 Meridian Boulevard | 8062 | 31-1472380 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of South Carolina, Inc. | SC | 4000 Meridian Boulevard | 8062 | 62-1587267 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Spartanburg, Inc. | SC | 4000 Meridian Boulevard | 8062 | 57-1040117 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Springdale, Inc. | AR | 4000 Meridian Boulevard | 8062 | 62-1755664 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Quorum Health Resources, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1742954 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Red Bud Hospital Corporation | IL | 4000 Meridian Boulevard | 8062 | 36-4444121 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Red Bud Illinois Hospital Company, LLC | IL | 4000 Meridian Boulevard | 8062 | 36-4443919 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Regional Hospital of Longview, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762464 | ||||
| Franklin, Tennessee 37067 | ||||||||
| River Oaks Hospital, LLC | MS | 4000 Meridian Boulevard | 8062 | 64-0626874 | ||||
| Franklin, Tennessee 37067 | ||||||||
| River Region Medical Corporation | MS | 4000 Meridian Boulevard | 8062 | 62-1576702 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Rockledge HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 27-3142075 | ||||
| Franklin, Tennessee 37067 | ||||||||
| ROH, LLC | MS | 4000 Meridian Boulevard | 8062 | 64-0780035 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Roswell Hospital Corporation | NM | 4000 Meridian Boulevard | 8062 | 74-2870118 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Ruston Hospital Corporation | DE | 4000 Meridian Boulevard | 8062 | 20-8066937 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Ruston Louisiana Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-8066999 | ||||
| Franklin, Tennessee 37067 | ||||||||
| SACMC, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762472 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Salem Hospital Corporation | NJ | 4000 Meridian Boulevard | 8062 | 22-3838322 | ||||
| Franklin, Tennessee 37067 | ||||||||
| San Angelo Community Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762473 | ||||
| Franklin, Tennessee 37067 | ||||||||
| San Angelo Medical, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769697 | ||||
| Franklin, Tennessee 37067 | ||||||||
| San Miguel Hospital Corporation | NM | 4000 Meridian Boulevard | 8062 | 74-2930034 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Scranton Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-4577223 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Scranton Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-4564798 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Scranton Quincy Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-2671991 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Scranton Quincy Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-2672023 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Sebastian Hospital, LLC | FL | 4000 Meridian Boulevard | 8062 | 65-0425888 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Sebring Hospital Management Associates, LLC | FL | 4000 Meridian Boulevard | 8062 | 59-2546390 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Seminole HMA, LLC | OK | 4000 Meridian Boulevard | 8062 | 45-4164241 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Sharon Pennsylvania Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 46-4257540 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Sharon Pennsylvania Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 38-3920098 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Shelbyville Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 20-2909388 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Siloam Springs Arkansas Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3635210 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Siloam Springs Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3635188 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Southeast HMA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964613 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Southern Texas Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769737 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Southwest Florida HMA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964696 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Spokane Valley Washington Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1315140 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Spokane Washington Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1315081 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Statesville HMA, LLC | NC | 4000 Meridian Boulevard | 8062 | 56-2206788 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tennessee HMA Holdings, LP | DE | 4000 Meridian Boulevard | 8062 | 46-1750499 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tennyson Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-3943816 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tomball Texas Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-2784214 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tomball Texas Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-2856063 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tooele Hospital Corporation | UT | 4000 Meridian Boulevard | 8062 | 87-0619248 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad Healthcare Corporation | DE | 4000 Meridian Boulevard | 8062 | 75-2816101 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad Holdings III, LLC | DE | 4000 Meridian Boulevard | 8062 | 75-2821745 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad Holdings IV, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1766957 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Triad Holdings V, LLC | DE | 4000 Meridian Boulevard | 8062 | 51-0327978 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad Nevada Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1639289 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad of Alabama, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762412 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad of Oregon, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1761990 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad-ARMC, LLC | DE | 4000 Meridian Boulevard | 8062 | 46-0496926 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad-El Dorado, Inc. | AR | 4000 Meridian Boulevard | 8062 | 62-1628508 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad-Navarro Regional Hospital Subsidiary, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1681610 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tunkhannock Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-4566015 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Van Buren H.M.A., LLC | AR | 4000 Meridian Boulevard | 8062 | 58-1725652 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Venice HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 20-1852812 | ||||
| Franklin, Tennessee 37067 | ||||||||
| VHC Medical, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769671 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Vicksburg Healthcare, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1752111 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Victoria Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1760818 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Victoria of Texas, L.P. | DE | 4000 Meridian Boulevard | 8062 | 62-1754940 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Virginia Hospital Company, LLC | VA | 4000 Meridian Boulevard | 8062 | 02-0691406 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Warren Ohio Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-3190619 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Warren Ohio Rehab Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-3190578 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Watsonville Hospital Corporation | DE | 4000 Meridian Boulevard | 8062 | 91-1894113 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Waukegan Hospital Corporation | IL | 4000 Meridian Boulevard | 8062 | 20-3978400 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Waukegan Illinois Hospital Company, LLC | IL | 4000 Meridian Boulevard | 8062 | 20-3978521 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Weatherford Hospital Corporation | TX | 4000 Meridian Boulevard | 8062 | 20-5694260 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Weatherford Texas Hospital Company, LLC | TX | 4000 Meridian Boulevard | 8062 | 20-5694301 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Webb Hospital Corporation | DE | 4000 Meridian Boulevard | 8062 | 20-0167530 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Webb Hospital Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-0167590 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Wesley Health System LLC | DE | 4000 Meridian Boulevard | 8062 | 52-2050792 | ||||
| Franklin, Tennessee 37067 | ||||||||
| West Grove Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 25-1892279 | ||||
| Franklin, Tennessee 37067 | ||||||||
| WHMC, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762551 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Wilkes-Barre Behavioral Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3632720 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Wilkes-Barre Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3632542 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Wilkes-Barre Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3632648 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Williamston Hospital Corporation | NC | 4000 Meridian Boulevard | 8062 | 62-1749107 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Winder HMA, LLC | GA | 4000 Meridian Boulevard | 8062 | 20-3749930 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Women & Children’s Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762556 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Woodland Heights Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762558 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Woodward Health System, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762418 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Yakima HMA, LLC | WA | 4000 Meridian Boulevard | 8062 | 45-0506909 | ||||
| Franklin, Tennessee 37067 | ||||||||
| York Pennsylvania Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 32-0360922 | ||||
| Franklin, Tennessee 37067 | ||||||||
| York Pennsylvania Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-4082660 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Youngstown Ohio Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-3074094 | ||||
| Franklin, Tennessee 37067 | ||||||||
Item 1. General Information. Furnish the following information as to the trustee:
| (a) | Name and address of each examining or supervising authority to which it is subject. |
Federal Reserve Bank of Atlanta, 1000 Peachtree Street NE, Atlanta, Georgia 30309-4470
Alabama State Banking Department, P.O. Box 4600, Montgomery, Alabama 36103-4600
| (b) | Whether it is authorized to exercise corporate trust powers. |
The Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
No responses are included for Items 3-15 of this Form T-1 because to the best of the Trustee’s knowledge, the obligor is not in default as provided under Item 13.
Item 16. List of Exhibits.
| Exhibit 1. | Articles of Incorporation of the Trustee, attached as Exhibit 1. | |
| Exhibit 2. | Not applicable. | |
| Exhibit 3. | Authorization of the Trustee to exercise corporate trust powers (incorporated by reference to Exhibit 3 to Form T-1, Registration No. 22-21909). | |
| Exhibit 4. | Bylaws of the Trustee, attached as Exhibit 4 | |
| Exhibit 5. | Not applicable. | |
| Exhibit 6. | The consent of the Trustee required by Section 321(b)of the Act, attached as Exhibit 6. | |
| Exhibit 7. | A copy of the latest report of condition of the Trustee published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. | |
| Exhibit 8. | Not applicable. | |
| Exhibit 9. | Not applicable. | |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Regions Bank, an Alabama banking corporation, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Nashville and State of Tennessee on the 6th day of May, 2015.
| REGIONS BANK | ||
| By: | /s/ Paul Williams | |
| Name: Paul Williams | ||
| Title: Vice President | ||
Exhibit 1 to Form T-1
ARTICLES OF INCORPORATION OF THE TRUSTEE
This instrument prepared by:
Charles C. Pinckney
Adams and Reese LLP
1901 6th Avenue North, Suite 3000
Birmingham, Alabama 35203
ARTICLES OF AMENDMENT TO
ARTICLES OF INCORPORATION
OF
REGIONS BANK
REGIONS BANK, a corporation organized and existing under the laws of the State of Alabama, hereby certifies as follows:
1.) The name of the corporation is Regions Bank.
2.) This restatement of the Articles of Incorporation restates and integrates the amendments to the Articles of Incorporation as previously filed and further amends the Articles of Incorporation by amending Article 6 of the Articles of Incorporation as previously filed.
3.) The text of the Restated Articles of Incorporation reads as herein set forth in full:
Page 1 of 6
RESTATED ARTICLES OF INCORPORATION
OF
REGIONS BANK
1. The name of this corporation shall be Regions Bank.
2. The principal place of business shall be 1900 Fifth Avenue North, Birmingham, Alabama. The general business of Regions Bank (the “Bank”) shall be conducted at its main office and its branches and other facilities.
3. The Bank shall have the following objects, purposes and powers:
a. To sue and be sued, complain and defend, in its corporate name.
b. To have a corporate seal which may be altered at pleasure, and to use the same by causing it, or a facsimile thereof, to be impressed or affixed or in any other manner reproduced.
c. To purchase, take, receive, lease, or otherwise acquire, own, hold, improve, use and otherwise deal in and with, real or personal property, or any interest therein, wherever situated.
d. To sell, convey, mortgage, pledge, lease, exchange, transfer and otherwise dispose of all or any part of its property and assets, subject to the limitations hereinafter prescribed.
e. To lend money and use its credit to assist its employees.
f. To purchase, take, receive, subscribe for, or otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge, or otherwise dispose of, and otherwise use and deal in and with, shares or other interests in, or obligations of, other domestic or foreign corporations, associations, partnerships or individuals, or direct or indirect obligations of the United States or of any other government, state, territory, governmental district, or municipality or of any instrumentality thereof as may be permitted by law or appropriate regulations.
g. To make contracts, guarantees, and indemnity agreements and incur liabilities, borrow money at such rates of interest as the corporation may determine, issue its notes, bonds, and other obligations, and secure any of its obligations by mortgage, pledge of, or creation of security interests in, all or any of its property, franchises, or income, or any interest therein, not inconsistent with the provisions of the Constitution of Alabama as the same may be amended from time to time.
h. To lend money for its corporate purposes, invest and reinvest its funds, and take and hold real and personal property as security for the payment of funds so loaned or invested.
Page 2 of 6
i. To conduct its business, carry on its operations and have offices and exercise the powers granted by this Article, within or without the State of Alabama.
j. To elect or appoint and remove officers and agents of the Bank, and define their duties and fix their compensation.
k. To make and alter by its board of directors bylaws not inconsistent with its articles of incorporation or with the laws of this state for the administration and regulation of the affairs of the Bank.
1. To make donations for the public welfare or for charitable, scientific, or educational purposes.
m. To transact any lawful business which the board of directors shall find will be in aid of governmental policy.
n. To pay pensions and establish pension plans, pension trusts, profit sharing plans, stock bonus plans, stock option plans and other incentive plans for any or all of its directors, officers and employees.
o. To be a promoter, incorporator, partner, member, trustee, associate, or manager of any domestic or foreign corporation, partnership, joint venture, trust, or other enterprise.
p. To consolidate or merge, before or after the completion of its works or plants, in the manner herein provided, with any other foreign or domestic corporation or corporations engaged in the business of banking or trust companies doing a banking business subject to the limitations hereinafter prescribed.
q. To have and exercise all powers permitted by the laws of Alabama necessary or convenient to effect its purposes.
r. To discount bills, notes or other evidences of debt.
s. To receive and pay out deposits, with or without interest, pay checks, and impose charges for any services.
t. To receive on special deposit money, bullion or foreign coins or bonds or other securities.
u. To buy and sell foreign and domestic exchanges, gold and silver bullion or foreign coins, bonds, bills of exchange, notes and other negotiable paper.
v. To lend money on personal security or upon pledges of bonds, stocks or other negotiable securities.
w. To take and receive security by mortgage, security or otherwise on property, real and personal.
Page 3 of 6
x. To become trustee for any purpose and be appointed and act as executor, administrator, guardian, receiver, or fiduciary.
y. To lease real and personal property upon specific request of a customer, provided it complies with any applicable Alabama laws regulating leasing real property or improvements thereon to others.
z. To perform computer, management and travel agency services for others.
aa. To subscribe to the capital stock and become a member of the federal reserve system and comply with rules and regulations thereof.
bb. To do any business and exercise directly or through operating subsidiaries any powers incident to the business of banks.
4. The duration of the corporation shall be perpetual.
5. The Board of Directors is expressly authorized from time to time to fix the number of Directors which shall constitute the entire Board, subject to the following:
a. The number of Directors constituting the entire Board shall be fixed from time to time by vote of a majority of the entire Board, provided, however, that the number of Directors shall not be reduced so as to shorten the term of any Director at the time in office, and provided further, shall not be less than three nor more than twenty-five (25). Each Director shall be the record owner of the requisite number of shares of common stock of the Bank’s parent bank holding company fixed by the appropriate regulatory authorities.
b. Notwithstanding any other provisions of the Articles of Incorporation or the bylaws of the Bank (and notwithstanding the fact that some lesser percentage may be specified by law, these Restated Articles of Incorporation or the bylaws of the Bank), any Director or the entire Board of Directors of the Bank may be removed at any time, with or without cause by the affirmative vote of the holders of ninety percent (90%) or more of the outstanding shares of capital stock of the Bank entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of the stockholders called for that purpose.
6. The aggregate number of shares of capital stock which the Bank shall have authority to issue is thirty thousand five hundred forty six (30,546) shares, which shall be common stock, par value five dollars ($5.00) per share (the “Common Stock”). The Bank shall not issue fractional shares of stock, but shall pay in cash the fair value of fractions of a share as of the time when those otherwise entitled to receive such fractions are determined.
a. Shareholders shall not have pre-emptive rights to purchase shares of any class of capital stock of the Bank. The Bank, at any time and from time to time, may authorize and issue debt obligations, whether or not subordinated, without the approval of the shareholders.
Page 4 of 6
b. Authority is hereby expressly granted to the Board of Directors from time to time to issue any authorized but unissued shares of Common Stock for such consideration and on such terms as it may determine. Every share of Common Stock of the Bank shall have one vote at any meeting of the shareholders and may be voted by the shareholders of record either in person or by proxy.
c. In the event of any liquidation, dissolution, or winding up-of the Bank or upon the distribution of the assets of the Bank, the assets of the Bank remaining after satisfaction of all obligations and liabilities shall be divided and distributed among the holders of the Common Stock ratably. Neither the merger or consolidation of the Bank with another corporation nor the sale or lease of all or substantially all of the assets of the Bank shall be deemed to be a liquidation, dissolution, or winding up of the Bank or a distribution of its assets.
d. The holders of Common Stock shall have the exclusive power to vote and shall have one vote in respect of each share of such stock held by them.
7. The Chief Executive Officer, Secretary, Board of Directors, or holder(s) of at least 90% of the issued and outstanding voting stock of the Bank may call a special meeting of shareholders at any time. Unless otherwise provided by the laws of Alabama, notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be given by first-class mail, postage prepaid, mailed at least ten days prior to the date of such meeting to each shareholder of record at his address as shown upon the stock transfer book of this Bank.
8. The Bank reserves the right to amend, alter, change or repeal any provision contained in these Restated Articles of Incorporation, in the manner now or hereafter provided by law, at any regular or special meeting of the shareholders, and all rights conferred upon officers, directors and shareholders of the Bank hereby are granted subject to this reservation.
9. The Bank shall indemnify its officers, directors, employees, and agents to the fullest extent permitted by the Constitution and laws of the State of Alabama.
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4.) This amendment to and restatement of the Articles of Incorporation was duly adopted by vote of the directors of the Bank pursuant to Section 10A-2-10.03 of the Alabama Business Corporation Law and was approved by the sole shareholder in accordance with Section 10A-2-10.03, by unanimous consent of the holder of 21,546 shares of common stock, constituting all of the shares of capital stock of the Bank outstanding, indisputably represented, and entitled to vote on the amendment. The date of adoption of the Restated Articles of Incorporation was July 17, 2014.
IN WITNESS WHEREOF, said Regions Bank has caused this certificate to be signed by Fournier J. Gale, III, its Senior Executive Vice President, General Counsel and Corporate Secretary, this 17th day of July, 2014.
| REGIONS BANK | ||
| By: | /s/ Fournier J. Gale, III | |
| Fournier J. Gale, III | ||
| Senior Executive Vice President, General | ||
| Counsel and Corporate Secretary | ||
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STATE OF ALABAMA
MONTGOMERY COUNTY
I, John D. Harrison, as Superintendent of Banks for the State of Alabama, do hereby certify that I have fully and duly examined the foregoing Articles of Amendment whereby the shareholder of Regions Bank, a banking corporation located at Birmingham, Alabama, proposes to Restate the Articles of Incorporation.
See attached Articles of Amendment which Restate the Articles of Incorporation of Regions Bank.
I do hereby certify that said Amendment of the Articles of Incorporation appear to be in substantial conformity with the requirements of law and they are hereby approved. Upon the filing of the same, together with this Certificate of Approval, with the proper agency as required by law, the Restated Articles of Incorporation of said bank shall be effective.
Given under my hand and seal of office this the 30th day of July, 2014.
| /s/ John D. Harrison | ||
| John D. Harrison | ||
| Superintendent of Banks | ||
Jefferson County
I, the Undersigned, as Judge of Probate in and for said County, in said State, hereby certify that the foregoing is a full, true and correct copy of the instrument with the filing of same as appears of record in this office in vol. 201415 page 9638 Given under my hand and official seal, this the 31st day of July, 2014.
| /s/ Alan L. King |
| Judge of Probate |
Exhibit 4 to Form T-1
BY-LAWS OF THE TRUSTEE
BY-LAWS OF
REGIONS BANK
(As amended July 18, 2013)
ARTICLE I. OFFICES
Section 1. Registered Office.
The registered office shall be established and maintained at the office of the CSC Lawyers Incorporating Service, Inc., in the City of Montgomery, in the County of Montgomery, in the State of Alabama, and said corporation shall be the registered agent of this Bank in charge thereof.
Section 2. Other Offices.
The Bank may have other offices, either within or without the State of Alabama, at such place or places as the Board of Directors may from time to time appoint or the business of the Bank may require.
Section 3. Principal Place of Business.
The principal place of business of the Bank shall be in Birmingham, Alabama.
ARTICLE II. MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting.
Annual meetings of stockholders for the election of Directors and for such other business as may be stated in the notice of the meeting, shall be held at such place, either within or without the State of Alabama, and at such time and date as the Board of Directors, by resolution, shall determine and as set forth in the notice of the meeting.
At each annual meeting, the stockholders entitled to vote shall elect Directors, and they may transact such other corporate business as may properly come before the meeting.
Section 2. Special Meetings.
Special meetings of the stockholders for any purpose or purposes, other than the election of Directors, may be called at any time by the Chairman of the Board, the Chief Executive Officer, the President, the Secretary, or by resolution of the Directors. Special meetings of stockholders may be held at such time and place, within or without the State of Alabama, as shall be stated in the notice of the meeting.
Section 3. Voting.
The vote of a majority of the votes cast by the shares entitled to vote on any matter at a meeting of stockholders at which a quorum is present shall be the act of the stockholders on that matter, except as otherwise required by law or by the articles of incorporation of the Bank.
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Section 4. Quorum.
A majority of the outstanding shares of the Bank entitled to vote, represented in person or by proxy, shall constitute a quorum at meetings of stockholders. If less than a majority of the outstanding shares are represented, a majority of the shares so represented may adjourn the meeting from time to time without further notice, but until a quorum is secured no other business may be transacted. The stockholders present at a duly organized meeting may continue to transact business until an adjournment notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
ARTICLE III. DIRECTORS
Section 1. Number and Term.
The number of Directors which shall constitute the whole Board of Directors shall be fixed, from time to time, by resolutions adopted by the Board of Directors, but shall not be less than three persons. The number of Directors shall not be reduced so as to shorten the term of any Director at the time in office.
At each annual meeting of stockholders, all Directors shall be elected for terms of one year, and except as hereinafter provided, each Director shall hold office until the next annual meeting or until his or her successor shall have been elected and qualified, or until his or her earlier retirement, death, resignation or removal. Directors need not be residents of Alabama.
Section 2. Chairman of the Board and Vice Chairman of the Board.
The Board of Directors shall by majority vote designate from time to time from among its members a Chairman of the Board. The Chairman of the Board shall preside at all meetings of the stockholders and of the Board of Directors of the Bank. He or she shall have and perform such duties as prescribed by the By-Laws and by the Board of Directors. The position of Chairman of the Board is a Board position, provided however, the position of Chairman of the Board may be held by a person who is also an officer of the Bank.
The Board of Directors may by majority vote designate from time to time from among its members one or more Vice Chairmen of the Board. A Vice Chairman of the Board shall preside at all meetings of the stockholders and of the Board of Directors of the Bank which the Chairman of the Board shall be unable to attend. He or she shall assist the Chairman of the Board in the exercise of his or her duties and shall have and perform such duties as are prescribed from time to time by the Board of Directors. In the event of the death or incapacity of the Chairman of the Board, he or she shall perform all the duties of the Chairman of the Board until the next annual meeting of the stockholders or until the Board shall have sooner elected a successor Chairman of the Board. The position of Vice Chairman of the Board is a Board position, provided however, that the position of Vice Chairman of the Board may be held by a person who is also an officer of the Bank.
In the absence of the Chairman of the Board and Vice Chairman of the Board or in case of their inability to act; the Independent Lead Director, if at the time a Director of the Bank has been designated by the Board of Directors as such, shall have and exercise all the powers and duties of such office and shall preside at all meetings of the Board of Directors. If at any Board of Directors meeting none of such persons is present or able to act, the Board of Directors shall select one of its members as acting chair of the meeting or portion thereof.
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Section 3. Resignations.
Any Director may resign at any time. Such resignation shall be made in writing, and shall take effect at the time of its receipt by the Chairman of the Board, Chief Executive Officer, the President, or the Secretary or at such other time as may be specified therein. The acceptance of a resignation shall not be necessary to make it effective.
Section 4. Vacancies.
If the office of any Director becomes vacant, the remaining Directors in office, though less than a quorum, by a majority vote, may appoint any qualified person to fill such vacancy, who shall hold office for the unexpired term and until his successor shall be duly chosen.
Section 5. Removal.
Any Director may be removed at any time, with or without cause, by the affirmative vote of the holders of a majority of the outstanding shares of capital stock of the Bank entitled to vote generally in the election of Directors considered for this purpose as one class cast at a meeting of the stockholders called for that purpose.
Section 6. Powers.
The Board of Directors shall exercise all the powers of the Bank except such as are by law, by the Articles of Incorporation of the Bank or pursuant to the Bank’s bylaws conferred upon or reserved to the stockholders.
Section 7. Meetings.
A regular meeting of the Board of Directors shall be held immediately before or after the annual meeting of stockholders. Additional regular meetings of the Directors may be held without notice at such places and times as shall be determined from time to time by resolution of the Directors.
Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, the President, or by the Secretary on the written request of a majority of the Board of Directors on at least two days’ notice to each Director and shall be held at such place or places as may be determined by the Directors, or as shall be stated in the call of the meeting.
Unless otherwise restricted by the Articles of Incorporation or these By-Laws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
Section 8. Quorum.
A majority of the Directors shall constitute a quorum for the transaction of business. If at any meeting of the Board of Directors there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at the meeting which shall be so adjourned. Notwithstanding the withdrawal of enough Directors to leave less than a quorum, the Directors present at a duly organized meeting may continue to transact business until adjournment.
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Section 9. Compensation.
Directors shall not receive any stated salary for their services as Directors or as members of committees, except that by resolution of the Board of Directors, retainer fees, meeting fees, and expenses of attendance at meetings may be authorized. Nothing herein contained shall be construed to preclude any Director from serving the Bank in any other capacity as an officer, agent or otherwise, and receiving compensation therefore.
Section 10. Action Without Meeting.
Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof, may be taken without a meeting, if prior to such action a written consent thereto is signed by all members of the Board of Directors, or of such committee as the case may be, and such written consent is filed with the minutes of proceedings of the Board of Directors or committee.
Section 11. Committees.
A majority of the whole Board of Directors shall have the authority to designate one or more committees, each committee to consist of one or more of the Directors of the Bank. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the Board or in these By-Laws, shall have and may exercise the powers of the Board of Directors in the management of the business and affairs of the Bank, and may authorize the seal of the Bank to be affixed to all papers which may require it; provided, however, that in the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not the member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.
Section 12. Eligibility.
No person shall be eligible to serve as Director of the Bank unless such person shall be the owner of shares of stock of the parent holding company of the number and held in the manner sufficient to meet the requirements of any applicable law or regulation in effect requiring the ownership of Directors’ qualifying shares.
Section 13. Directors Protected.
Each Director shall in the performance of his or her duties be fully protected in relying in good faith upon reports made to the Directors by the officers of the Bank or by state or federal bank examiners or by any independent accountant or by any appraiser selected with reasonable care, or by counsel, or by a committee of the Board, or in relying in good faith upon other records or books of account of the Bank.
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ARTICLE IV. OFFICERS
Section 1. Officers, Elections, Terms.
The officers of the Bank shall be a Chief Executive Officer; a President; one or more Regional or Local Presidents if the Board so determines; one or more Vice Presidents, who may be designated Senior Executive Vice Presidents, Executive Vice Presidents, Senior Vice Presidents, Vice Presidents, and Assistant Vice Presidents; a Secretary; one or more Assistant Secretaries; a Chief Financial Officer; a Controller; an Auditor; and such other officers as may be deemed appropriate. All of such officers shall be appointed annually by the Board of Directors to serve for a term of one year and until their respective successors are appointed and qualified or until such officer’s earlier death, resignation, retirement, or removal, except that the Board of Directors may delegate the authority to appoint officers holding the position of Senior Executive Vice President and below in accordance with procedures established or modified by the Board from time to time. Those Officers who serve in the Trust Department shall be so designated by the word “Trust” in their title. None of the officers of the Bank need be Directors. More than one office may be held by the same person.
Section 2. Chief Executive Officer.
The Board of Directors shall appoint a Chief Executive Officer of the Bank. The Chief Executive Officer is the most senior executive officer of the Bank, and shall be vested with authority to act for the Bank in all matters and shall have general supervision of the Bank and of its business affairs, including authority over the detailed operations of the Bank and over its personnel, with full power and authority during intervals between sessions of the Board to do and perform in the name of the Bank all acts and deeds necessary or proper, in his or her opinion, to be done and performed and to execute for and in the name of the Bank all instruments, agreements, and deeds which may be authorized to be executed in behalf of the Bank or which may be required by law. The Chief Executive Officer may, but need not, also hold the office of President.
Section 3. President.
The President shall, subject to the control of the Board of Directors and of any committee of the Board having authority in the premises, have, and may exercise the authority to act for the Bank in all ordinary matters and perform other such duties as directed by the By-Laws, the Board of Directors, or the Chief Executive Officer. Among the officers of the Bank, the President is subordinate to only the Chief Executive Officer and is senior to the other officers of the Bank. The authority of the President shall include authority over the detailed operations of the Bank and over its personnel with full power and authority during intervals between sessions of the Board to do and perform in the name of the Bank all acts and deeds necessary or proper, in his or her opinion, to be done and performed and to execute for and in the name of the Bank all instruments, agreements, and deeds which may be authorized to be executed in behalf of the Bank or which may be required by law.
Section 4. Vice Presidents.
The Vice Presidents shall, subject to the control of the Board of Directors, the Chief Executive Officer or the President, have and may exercise the authority vested in them in all proper matters, including authority over the detailed operations of the Bank and over its personnel.
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Section 5. Chief Financial Officer.
The Chief Financial Officer or his designee shall have custody of all funds of the Bank. He or his designee shall have and perform such duties as are incident to the office of Chief Financial Officer and such other duties as may from time to time be assigned to him by the Board of Directors, the Chief Executive Officer, or the President.
Section 6. Secretary.
The Secretary shall keep minutes of all meetings of the stockholders and the Board of Directors unless otherwise directed by those bodies. The Secretary, or in his absence, any Assistant Secretary, shall attend to the giving and serving of all notices of the Bank. He shall perform all the duties incident to the office of Secretary, subject to the control of the Board of Directors, and shall do and perform such other duties as may from time to time be assigned by the Board of Directors, the Chairman of the Board, the Chief Executive Officer, or the President.
Section 7. Controller.
The Controller shall, under the direction of the Chief Executive Officer, the President, the Chief Financial Officer, or a more senior officer, have general supervision and authority over all reports required of the Bank by law or by any public body or officer or regulatory authority pertaining to the condition of the Bank and its assets and liabilities. The Controller shall have general supervision of the books and accounts of the Bank and its methods and systems of recording and keeping accounts of its business transactions and of its assets and liabilities. The Controller shall be responsible for preparing statements showing the financial condition of the Bank and shall furnish such reports and financial records as may be required of him or her by the Board of Directors or by the Chief Executive Officer, the President, the Chief Financial Officer, or other more senior officer.
Section 8. Auditor.
The Auditor’s office may be filled by an employee of the Bank or his or her duties may be performed by an employee or committee of the parent company of the Bank. The Auditor shall have general supervision of the auditing of the books and accounts of the Bank, and shall continuously and from time to time check and verify the Bank’s transactions, its assets and liabilities, and the accounts and doings of the officers, agents and employees of the Bank with respect thereto. The Auditor whether an employee of the Bank or of its parent shall be directly accountable to and under the jurisdiction of the Board of Directors and, if applicable, its designated committee, acting independently of all officers, agents and employees of the bank. The Auditor shall render reports covering matters in his or her charge regularly and upon request to the Board and, if applicable, its designated committee.
Section 9. Other Officers and Agents.
The Board of Directors may appoint such other officers and agents as it may deem advisable, who shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors. The functions of a cashier of the Bank may be performed by the Controller or any other officer of the Bank whose area of responsibility includes the function to be performed.
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Section 10. Officer in Charge of Wealth Management.
The officer in charge of Wealth Management shall be designated as such by the Board of Directors and shall exercise general supervision and management over the affairs of Private Wealth Management, Institutional Services, and Wealth Management Operations and Support, which groups are responsible for exercise of the Bank’s trust powers. That officer is hereby empowered to appoint all necessary agents or attorneys; also to make, execute and acknowledge all checks, bonds, certificates, deeds, mortgages, notes, releases, leases, agreements, contracts, bills of sale, assignments, transfers, powers of attorney or of substitution, proxies to vote stock, or any other instrument in writing that may be necessary in the purchase, sale, mortgage, lease, assignment, transfer, management or handling, in any way of any property of any description held or controlled by the Bank in any fiduciary capacity. Said officer shall have such other duties and powers as shall be designated by the Board of Directors.
Section 11. Other Officers in Private Wealth Management, Institutional Services, and Wealth Management Operations and Support.
The officer in charge of Wealth Management shall appoint officers responsible for the activities of Private Wealth Management, Institutional Services, and Wealth Management Operations and Support. Various other officers as designated by the officers responsible for the activities of Private Wealth Management, Institutional Services, and Wealth Management Operations and Support are empowered and authorized to make, execute, and acknowledge all checks, bonds, certificates, deeds, mortgages, notes, releases, leases, agreements, contracts, bills of sale, assignments, transfers, powers of attorney or substitution, proxies to vote stock or any other instrument in writing that may be necessary to the purchase, sale, mortgage, lease, assignments, transfer, management or handling in any way, of any property of any description held or controlled by the Bank in any fiduciary capacity.
Section 12. Removal and Retirement of Officers.
At its pleasure, the Board of Directors may remove any officer from office at any time by a majority vote of the Board, provided however that the terms of any employment or compensation contract shall be honored according to its terms. An individual’s status as an officer will terminate without the necessity of any other action or ratification immediately upon termination for any reason of the individual’s employment by the Bank.
ARTICLE V. MISCELLANEOUS
Section 1. Certificates of Stock.
Certificates of stock of the Bank shall be signed by the President and the Secretary of the Bank, which signatures may be represented by a facsimile signature. The certificate may be sealed with the seal of the Bank or an engraved or printed facsimile thereof. The certificate represents the number of shares of stock registered in certificate form owned by such holder.
Section 2. Lost Certificates.
In case of the loss or destruction of any certificate of stock, the holder or owner of same shall give notice thereof to the Chief Executive Officer, the President, any Vice President, or the Secretary of the Bank and, if such holder or owner shall desire the issue of a new certificate in the place of the one lost or destroyed, he or she shall make affidavit of such loss or destruction and deliver the same to any one of said officers and accompany the same with a bond with surety satisfactory to the Bank to indemnify the
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Bank and save it harmless against any loss, cost or damage in case such certificate should thereafter be presented to the Bank, which affidavit and bond shall be, at the discretion of the deciding party listed in this Section 2, unless so ordered by a court having jurisdiction over the matter, approved or rejected by the Board of Directors or by the Chief Executive Officer or by the President or an Executive or Senior Vice President before the issue of any new certificate.
Section 3. Transfer of Shares.
Title to a certificate and to the shares represented thereby can be transferred only by delivery of the certificate endorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby, or by delivery of the certificate and a separate document containing a written assignment of the certificate or a power of attorney to sell, assign, or transfer the same or the shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby. Such assignment or power of attorney may be either in blank or to a specified person.
Section 4. Fractional Shares.
No fractional part of a share of stock shall ever be issued by this Bank.
Section 5. Stockholders Record Date.
In order that the Bank may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
Section 6. Dividends.
Subject to the provisions of the Articles of Incorporation, the Board of Directors may, out of funds legally available therefore at any regular or special meeting, declare dividends upon the capital stock of the Bank as and when they deem expedient. Before declaring any dividend there may be set apart out of any fund of the Bank available for dividends, such sum or sums as the Directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the Directors shall deem conducive to the interests of the Bank. No dividends shall be declared which exceed the amounts authorized by applicable laws and regulations or are otherwise contrary to law.
Section 7. Seal.
The corporate seal of the Bank shall be circular in shape and shall include the words “Regions Bank” around the outer edge of the circle and the word “Seal” in the center of the circle. The seal may also include appropriate descriptors, such as the words: “An Alabama Banking Corporation”. The Secretary of the Bank shall have custody of the seal and is authorized to affix the same to instruments, documents, and papers as required by law or as customary or appropriate in the Secretary’s judgment and
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discretion. Without limiting the general authority of the Board of Directors of the Bank to name, appoint, remove, and define the duties of officers of the Bank, the Secretary is further authorized to cause reproductions of the seal to be made, distributed to, and used by officers and employees of the Bank whose duties and responsibilities involve the execution and delivery of instruments, documents, and papers bearing the seal of the Bank. In this regard, the Secretary is further authorized to establish, implement, interpret, and enforce policies and procedures governing the use of the seal and the authorization by the Secretary of officers and employees of the Bank to have custody of and to use the seal. Such policies and procedures may include (i) the right of the Secretary to appoint any Bank employee as an Assistant Secretary of the Bank, if such appointment would, in the Secretary’s judgment, be convenient with respect to such employee’s custody and use of a seal and/or (ii) the right of the Secretary to authorize Bank employees to have and use seals as delegates of the Secretary without appointing such employees as Assistant Secretaries of the Bank.
Section 8. Fiscal Year.
The fiscal year of the Bank shall be the calendar year.
Section 9. Checks, Drafts, Transfers, etc.
The Chief Executive Officer, the President, any Regional or Local President, any Vice President or Assistant Vice President, any Branch Manager or any other employee designated by the Board of Directors, is authorized and empowered on behalf of the Bank and in its name to sign and endorse checks and warrants, to draw drafts, to issue and sign cashier’s checks, to guarantee signatures, to give receipts for money due and payable to the Bank, to sell, assign and transfer shares of capital stock, bonds, or other personal property or securities standing in the name of or held by the Bank, whether in its own right or in any fiduciary capacity, and to make or join in such consents, requests or commitments with respect to the same as may be appropriate or authorized as to the holder thereof, and to sign such other papers and do such other acts as are necessary in the performance of his or her duties. The authority conveyed to any employee designated by the Board may be limited by general or specific resolution of the Board.
Section 10. Notice and Waiver of Notice.
Whenever any notice is required by these By-Laws to be given, personal notice is not meant unless expressly so stated, and any notice so required shall be deemed to be sufficient if given by depositing the same in the United States, mail, postage, prepaid, or by telegram, teletype, facsimile transmission or other form of wire, wireless, or other electronic communication or by private carrier addressed to the person entitled thereto at his address as it appears on the records of the Bank, and such notice shall be deemed to have been given on the date of such mailing. Stockholders not entitled to vote shall not be entitled to receive notice of meetings except as otherwise provided by statute.
Whenever any notice whatever is required to be given under the provisions of any law, or under the provisions of the Articles of Incorporation of the Bank or these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.
Section 11. Right of Indemnity.
To the full extent allowed by Section 10-2B-8.5 et seq. of the Code of Alabama (1975), or any statute amendatory or supplemental thereof, the Bank shall indemnify and hold harmless each director or officer now or hereafter serving the Bank against any loss and reasonable expenses actually and necessarily incurred by him or her in connection with the defense of any claim, or any action, suit or
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proceeding against him or her or in which he or she is made a party, by reason of his or her being or having been a Director or officer of the Bank, or who, while a Director or officer of the Bank, is or was serving as at the Bank’s request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. Such right of indemnity shall not be deemed exclusive of any other rights to which such Director or officer may be entitled under any statute, article of incorporation, rule of law, other bylaw, agreement, vote of stockholders or directors, or otherwise. Nor shall anything herein contained restrict the right of the Bank to indemnify or reimburse any officer or Director in any proper case even though not specifically provided for herein. The Bank may purchase and maintain insurance in such amounts as the Board of Directors deems appropriate on behalf of said Directors or officers so as to offset any potential liability asserted against said Directors or officers acting in such capacity as described in these By-Laws.
Section 12. Execution of Instruments and Documents.
The Chief Executive Officer, or the President, or any Regional or Local President or any Vice President is authorized, in his or her discretion, to do and perform any and all corporate and official acts in carrying on the business of the Bank, including, but not limited to, the authority to make, execute, acknowledge, accept and deliver any and all deeds, mortgages, releases, bills of sale, assignments, transfers, leases (as lessor or lessee), powers of attorney or of substitution, servicing or sub-servicing agreements, vendor agreements, proxies to vote stock or any other instrument in writing that may be necessary in the purchase, sale, lease, assignment, transfer, discount, management or handling in any way of any property of any description held, controlled or used by Bank or to be held, controlled or used by Bank, either in its own or in its fiduciary capacity and including the authority from time to time to open bank accounts with the Bank or any other institution, to borrow money in such amounts for such lengths of time, at such rates of interest and upon such terms and conditions as any said officer may deem proper and to evidence the indebtedness thereby created by executing and delivering in the name of the Bank promissory notes or other appropriate evidences of indebtedness, and to guarantee the obligations of any subsidiary or affiliate of the Bank. The enumeration herein of particular powers shall not restrict in any way the general powers and authority of said officers.
By way of example and not limitation, such officers of the Bank are authorized to execute, accept, deliver and issue, on behalf of the Bank and as binding obligations of Bank, such agreements and instruments as may be within the officer’s area of responsibility, including, as applicable, agreements and related documents (such as schedules, confirmations, transfers, assignments, acknowledgments, and other documents) relating to derivative transactions, loan or letter of credit transactions, syndications, participations, trades, purchase and sale or discount transactions, transfers and assignments, servicing and sub-servicing agreements, vendor agreements, securitizations, and transactions of whatever kind or description arising in the conduct of the Bank’s business.
The authority to execute and deliver documents, instruments, and agreements may be limited by resolution of the Board of Directors, by a committee of the Board of Directors, by the Chief Executive Officer, or by the President, by reference to subject matter, category, amount, geographical location, or any other criteria, and may be made subject to such policies, procedures, and levels of approval as may be adopted or amended from time to time.
Section 13. Voting Bank’s Securities.
Unless otherwise ordered by the Board of Directors, the Chief Executive Officer, the President, any Executive Vice President or above, the Controller, the Bank’s General Counsel, and any other officer as may be designated by the Board of Directors shall have full power and authority on behalf of the Bank to attend, and to act and to vote, and to execute a proxy or proxies empowering others to attend, and to act
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and to vote, at any meetings of security holders of any of the corporations in which the Bank may hold securities and, at such meetings, such officer shall possess and may exercise any and all rights and powers incident to the ownership of such securities which, as the owner thereof, the Bank might have possessed and exercised, if present.
Section 14. Bonds of Officers and Employees.
The Board of Directors shall from time to time designate the officers and employees who shall be required to give bond and fix the amounts thereof.
Section 15. Satisfaction of Loans.
On payment of sums lent, for which security shall have been taken either by way of mortgage or other lien on real or personal property or by the pledge of collateral, whether said loans have been made from funds of the Bank or from funds held in fiduciary capacity, any officer of the Bank shall have the power and authority to enter the fact of payment or satisfaction on the margin of the record of any such security or in any other legal manner to cancel such indebtedness and to release said security, and the Chief Executive Officer or the President or any Regional or Local President or any Vice President of the Bank shall have power and authority to execute a power of attorney authorizing the cancellation, release or satisfaction of any mortgage or other security given to the Bank in its corporate or fiduciary capacity, by such person as he or she may in his or her discretion appoint.
Section 16. Emergencies.
In the event of an emergency declared by the President of the United States or the person performing his or her functions, the officers and employees of this Bank will continue to conduct the affairs of the Bank under such guidance from the Directors as may be available except as to matters which by statute require specific approval of the Board of Directors and subject to conformance with any governmental directives or directives of the Federal Deposit Insurance Corporation during the emergency.
ARTICLE VI. AMENDMENTS
Except as otherwise provided herein or in the articles of incorporation of the Bank, these By-Laws may be amended or repealed by the affirmative vote of a majority of the Directors then holding office at any regular or special meeting of the Board of Directors, and the Stockholders may make, alter or repeal any By-Laws, whether or not adopted by them.
Page 11 of 11
Exhibit 6 to Form T-1
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, Regions Bank hereby consents that reports of examination of Regions Bank by Federal, State, Territorial or District regulatory authorities may be furnished by such regulatory authorities to the Securities and Exchange Commission upon request therefor.
Dated: May 6, 2015
| REGIONS BANK | ||
| By: | /s/ Paul Williams | |
| Paul Williams | ||
| Vice President | ||
Exhibit 7 to Form T-1
Regions Bank Legal Title of Bank Birmingham City AL 35203 State Zip Code FDIC Certificate Number: 12368 Printed on 4/30/2015 at 6:14 PM - Submitted to CDR on 4/30/2015 at 6:13 PM Consolidated Report of Condition for Insured Banks and Savings Associations for March 31, 2015 All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter. Schedule RC—Balance Sheet Dollar Amounts in Thousands RCFD h d1 1611 I Mil i Thou Assets 1. Cash and balances due from depository Institutions (from Schedule RC-A): a. Noninterest-bearing balances and currency and coin (1) b. Interest-bearing balances (2) 2. Securities: a. Held-to-maturity securities (from Schedule RC-B, column A) b. Available-for-sale securities (from Schedule RC-B, column D) 3. Federal funds sold and securities purchased under agreements to resell: a. Federal funds sold in domestic offices 0081 1,744,092 0071 4,222,958 1754 2,126,864 1773 22,312,842 b. Securities purchased under agreements to resell (3) 4. Loans and lease financing receivables (from Schedule RC-C): a. Loans and leases held for sale b. Loans and leases, net of unearned income c. LESS: Allowance for loan and lease losses d. Loans and leases, net of unearned income and allowance (item 4.b minus 4.c) 5. Trading assets (from Schedule RC-D) 6. Premises and fixed assets (including capitalized leases) 7. Other real estate owned (from Schedule RC-M) 8. Investments in unconsolidated subsidiaries and associated companies 9. Direct and indirect investments in real estate ventures 10. Intangible assets: a. Goodwill b. Other intangible assets (from Schedule RC-M) 11. Other assets (from Schedule RC-F) 12. Total assets (sum of items 1 through 11) B528 3123 78,242,30 1,097,69 RCON B987 RCFD 8989 c 65,000 8529 77,144,619 3545 424,035 2145 2,024,137 2150 136,355 2130 3656 3163 c c 4,* 4,242,336 0426 486,20C 2160 6,014,603 2170 121,434,926 (1) Includes cash items in process of collection and unposted debits. (2) Indudes time certificates of deposit not held for trading. (3) Indudes all securities resale agreements in domestic and foreign offices, regardless of maturity. FFIEC 031 Page 16 of 84 RC-1 1.a 1.b 2.a 2.b 3,a 3.b 4.a 4.b 4.c 4.d 5 6 7 8 9 10.a 10.b 11 12
Regions Bank Legal Title of Bank FDIC Certificate Number: 12368 Printed on 4/30/2015 at 6:14 PM - Submitted to CDR on 4/30/2015 at 6:13 PM Schedule RC—Continued Dollar Amounts in Thousands Liabilities 13. Deposits: a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) (1) Noninterest-bearing (4) (2) Interest-bearing b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, part II) (1) Noninterest-bearing (2) Interest-bearing 14. Federal funds purchased and securities sold under agreements to repurchase: a. Federal funds purchased in domestic offices (5) b. Securities sold under agreements to repurchase (6) 15. Trading liabilities (from Schedule RC-D) 16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases) (from Schedule RC-M) 17. and 18. Not applicable RCON rill au INN 1 Thou 2200 98 997,309 6631 I 33,699 804 6636 65,297 50 RCFN 2200 237,50 6631 6636 237,501 RCON B993 RCFD 8995 3548 FFIEC 031 Page 16a of 84 RC-la 13.a 13.a.1 13.a,2 13.b 13.b.1 13.b.2 14.a 2,084,508 14,b 149,054 15 150,664 16 (4) Includes noninterest-bearing demand, time, and savings deposits. (5) Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, “Other borrowed money.” (6) Includes all securities repurchase agreements in domestic and foreign offices, regardless of maturity.
Regions Bank Legal Title of Bank FDIC Certificate Number: 12368 Printed on 4/30/2015 at 6:14 PM Submitted to CDR on 4/30/2015 at 6:13 PM Schedule RC—Continued Dollar Amounts in Thousands RCFD ill l 811 l MII l Thou Liabilities—Continued 19. Subordinated notes and debentures (1) 20. Other liabilities (from Schedule RC-G) 21. Total liabilities (sum of items 13 through 20) 22. Not applicable Equity Capital Bank Equity Captal 23. Perpetual preferred stock and related surplus 24. Common stock 25. Surplus (excludes all surplus related to preferred stock) 26. a. Retained earnings b. Accumulated other comprehensive income (2) c. Other equity capital components (3) 27. a. Total bank equity capital (sum of items 23 through 26.c) b. Noncontrolling (minority) interests in consolidated subsidiaries 28. Total equity capital (sum of items 27.a and 27.b) 29. Total liabilities and equity capital (sum of items 21 and 28) Memoranda To be reported with the March Report of Condition. 1. Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing work performed for the bank by independent external auditors as of any date during 2014 1 = Independent audit of the bank conducted In accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the bank 2 = Independent audit of the bank’s parent holding company conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the consolidated holding company (but not on the bank separately) 3 = Attestation on bank managements assertion on the effectiveness of the bank’s internal control over financial reporting by a certified public accounting firm. To be reported with the March Report of Condition. 2 Bank’s fiscal year-end date 3200 2930 1,497,691 2,074,681 2948 3838 105 191,408 0 3230 103 3839 16,726,608 3637 -367,730 B530 -115,464 A130 3210 16,243,517 3000 G105 18,243,517 3300 121,434,926 RCFD Number 6724 2 4 = Directors’ examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state chartering authority) 5 = Direchars’ examination of the bank performed by other external auditors (may be required by state chartering authority) 6 = Review of the bank’s financial statements by external auditors 7 = Compilation of the bank’s financial statements by external auditors 8 = Other audit procedures (excluding tax preparation work) 9 = No external audit work RCON MMDD 8678 1231 FFIEC 031 Page 17 of 84 RC-2 19 20 21 23 24 25 26.a 26.b 26.c 27.a 27.b 28 29 M.1 M.2 (1) Includes limited-life preferred stock and related surplus. (2) Includes, but is not limited to, net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, cumulative foreign currency translation adjustments, and accumulated defined benefit pension and other postretlrement plan adjustments. (3) Includes treasury stock and unearned Employee Stock Ownership Plan shares.
EXHIBIT 25.3
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ¨ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
REGIONS BANK
(Exact name of trustee as specified in its charter)
| An Alabama Banking Corporation | 63-0371391 | |
| (Jurisdiction of incorporation) | (I.R.S. Employer Identification No.) |
Regions Bank
Corporate Trust Department
1901 6th Avenue North, 28th Floor
Birmingham, Alabama 35203
(Address of principal executive offices)
Paul Williams
Vice President
Regions Bank, Corporate Trust Services
150 Fourth Avenue North, Suite 900
Nashville, Tennessee 37219
(615)770-4358
(Name, address and telephone number of agent for service)
CHS/Community Health Systems, Inc.
(Exact name of obligor as specified in its charter)
| Delaware | 76-0137985 | |
| (Jurisdiction of incorporation) | (I.R.S. Employer Identification No.) |
4000 Meridian Boulevard
Franklin, Tennessee 37067
(615) 465-7000
(Address of principal executive offices)
Senior Debt Securities
(Title of the indenture securities)
Additional Obligors
| Exact Name of Additional Obligors |
Jurisdiction or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Community Health Systems, Inc. | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 13-3893191 | ||||
| Abilene Hospital, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 46-0496920 | ||||
| Abilene Merger, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 46-0496918 | ||||
| Affinity Health Systems, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 20-3391769 | ||||
| Affinity Hospital, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 20-3391873 | ||||
| Amory HMA, LLC | MS | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 20-3750001 | ||||
| Anna Hospital Corporation | IL | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 36-4431843 | ||||
| Anniston HMA, LLC | AL | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 72-1346819 | ||||
| Bartow HMA, LLC | FL | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 20-1888382 | ||||
| Berwick Hospital Company, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 23-2975836 | ||||
| Big Bend Hospital Corporation | TX | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 75-2717545 | ||||
| Big Spring Hospital Corporation | TX | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 75-2574581 | ||||
| Biloxi H.M.A., LLC | MS | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 59-2754033 | ||||
| Birmingham Holdings II, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 26-2784086 | ||||
| Birmingham Holdings, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 20-3320362 | ||||
| Blackwell HMA, LLC | OK | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 36-4720244 | ||||
| Blue Island Hospital Company, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 45-4082512 | ||||
| Blue Island Illinois Holdings, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 61-1667279 | ||||
| Bluefield Holdings, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 27-2372042 | ||||
| Bluefield Hospital Company, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 27-2372291 | ||||
| Bluffton Health System LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1792272 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Brandon HMA, LLC | MS | 4000 Meridian Boulevard | 8062 | 64-0885458 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Brevard HMA Holdings, LLC | FL | 4000 Meridian Boulevard | 8062 | 27-3137706 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Brevard HMA Hospitals, LLC | FL | 4000 Meridian Boulevard | 8062 | 27-3141947 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Brownwood Hospital, L.P. | DE | 4000 Meridian Boulevard | 8062 | 62-1762521 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Brownwood Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762523 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Bullhead City Hospital Corporation | AZ | 4000 Meridian Boulevard | 8062 | 86-0982071 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Bullhead City Hospital Investment Corporation | DE | 4000 Meridian Boulevard | 8062 | 20-1577204 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Campbell County HMA, LLC | TN | 4000 Meridian Boulevard | 8062 | 45-2528273 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Carlisle HMA, LLC | PA | 4000 Meridian Boulevard | 8062 | 25-1887146 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Carlsbad Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762526 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Carolinas JV Holdings General, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-2227746 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Carolinas JV Holdings, L.P. | DE | 4000 Meridian Boulevard | 8062 | 26-2227809 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Central Florida HMA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964329 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Central States HMA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964397 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Centre Hospital Corporation | AL | 4000 Meridian Boulevard | 8062 | 20-4370931 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Chester HMA, LLC | SC | 4000 Meridian Boulevard | 8062 | 20-1231400 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CHHS Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-2189938 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CHS Kentucky Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1639057 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CHS Pennsylvania Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1639170 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CHS Virginia Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1639119 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CHS Washington Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3272205 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Citrus HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 20-0195256 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Clarksdale HMA, LLC | MS | 4000 Meridian Boulevard | 8062 | 64-0869163 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Clarksville Holdings II, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-5498575 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Clarksville Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-3320418 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Cleveland Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 62-1587878 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Cleveland Tennessee Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1281627 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Clinton HMA, LLC | OK | 4000 Meridian Boulevard | 8062 | 37-1659366 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Clinton Hospital Corporation | PA | 4000 Meridian Boulevard | 8062 | 90-0003715 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Coatesville Hospital Corporation | PA | 4000 Meridian Boulevard | 8062 | 23-3069798 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Cocke County HMA, LLC | TN | 4000 Meridian Boulevard | 8062 | 5 45-2528314 | ||||
| Franklin, Tennessee 37067 | ||||||||
| College Station Hospital, L.P. | DE | 4000 Meridian Boulevard | 8062 | 62-1762360 | ||||
| Franklin, Tennessee 37067 | ||||||||
| College Station Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762359 | ||||
| Franklin, Tennessee 37067 | ||||||||
| College Station Merger, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1771861 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Community GP Corp. | DE | 4000 Meridian Boulevard | 8062 | 62-1648466 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Community Health Investment Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 76-0152801 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Community LP Corp. | DE | 4000 Meridian Boulevard | 8062 | 62-1648206 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CP Hospital GP, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-3904557 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CPLP, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-3904614 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Crestwood Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769644 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Crestwood Hospital LP, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762369 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CSMC, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762362 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| CSRA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-5111915 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Deaconess Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 47-0890490 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Deaconess Hospital Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-2401268 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Deming Hospital Corporation | NM | 4000 Meridian Boulevard | 8062 | 85-0438008 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Desert Hospital Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-8111921 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Detar Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1754943 | ||||
| Franklin, Tennessee 37067 | ||||||||
| DHFW Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-2817294 | ||||
| Franklin, Tennessee 37067 | ||||||||
| DHSC, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-2871473 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Dukes Health System, LLC | DE | 4000 Meridian Boulevard | 8062 | 52-2379885 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Dyersburg Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 42-1557536 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Emporia Hospital Corporation | VA | 4000 Meridian Boulevard | 8062 | 54-1924866 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Evanston Hospital Corporation | WY | 4000 Meridian Boulevard | 8062 | 83-0327475 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Fallbrook Hospital Corporation | DE | 4000 Meridian Boulevard | 8062 | 91-1918215 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Florida HMA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964255 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Foley Hospital Corporation | AL | 4000 Meridian Boulevard | 8062 | 62-1811413 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Forrest City Arkansas Hospital Company, LLC | AR | 4000 Meridian Boulevard | 8062 | 20-4217095 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Forrest City Hospital Corporation | AR | 4000 Meridian Boulevard | 8062 | 20-4216978 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Fort Payne Hospital Corporation | AL | 4000 Meridian Boulevard | 8062 | 20-4370870 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Fort Smith HMA, LLC | AR | 4000 Meridian Boulevard | 8062 | 27-1013889 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Frankfort Health Partner, Inc. | IN | 4000 Meridian Boulevard | 8062 | 35-2009540 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Franklin Hospital Corporation | VA | 4000 Meridian Boulevard | 8062 | 52-2200240 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Gadsden Regional Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 63-1102774 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Galesburg Hospital Corporation | IL | 4000 Meridian Boulevard | 8062 | 37-1485782 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Granbury Hospital Corporation | TX | 4000 Meridian Boulevard | 8062 | 75-2682017 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Granite City Hospital Corporation | IL | 4000 Meridian Boulevard | 8062 | 36-4460625 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Granite City Illinois Hospital Company, LLC | IL | 4000 Meridian Boulevard | 8062 | 36-4460628 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Greenville Hospital Corporation | AL | 4000 Meridian Boulevard | 8062 | 63-1134649 | ||||
| Franklin, Tennessee 37067 | ||||||||
| GRMC Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-8112090 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hallmark Healthcare Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 63-0817574 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hamlet H.M.A., LLC | NC | 4000 Meridian Boulevard | 8062 | 58-1741827 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Health Management Associates, Inc. | DE | 4000 Meridian Boulevard | 8062 | 61-0963645 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Health Management Associates, LP | DE | 4000 Meridian Boulevard | 8062 | 27-1601497 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Health Management General Partner I, LLC | DE | 4000 Meridian Boulevard | 8062 | 46-1721316 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Health Management General Partner, LLC | DE | 4000 Meridian Boulevard | 8062 | 46-1690736 | ||||
| Franklin, Tennessee 37067 | ||||||||
| HMA Fentress County General Hospital, LLC | TN | 4000 Meridian Boulevard | 8062 | 95-3974754 | ||||
| Franklin, Tennessee 37067 | ||||||||
| HMA Hospitals Holdings, LP | DE | 4000 Meridian Boulevard | 8062 | 26-3964154 | ||||
| Franklin, Tennessee 37067 | ||||||||
| HMA Santa Rosa Medical Center, LLC | FL | 4000 Meridian Boulevard | 8062 | 68-0045270 | ||||
| Franklin, Tennessee 37067 | ||||||||
| HMA Services GP, LLC | DE | 4000 Meridian Boulevard | 8062 | 46-1707507 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hobbs Medco, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769641 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hospital Management Associates, LLC | FL | 4000 Meridian Boulevard | 8062 | 35-1410796 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hospital Management Services of Florida, LP | FL | 4000 Meridian Boulevard | 8062 | 20-5917647 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hospital of Barstow, Inc. | DE | 4000 Meridian Boulevard | 8062 | 76-0385534 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Hospital of Fulton, Inc. | KY | 4000 Meridian Boulevard | 8062 | 61-1218106 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hospital of Louisa, Inc. | KY | 4000 Meridian Boulevard | 8062 | 61-1238190 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hospital of Morristown, Inc. | TN | 4000 Meridian Boulevard | 8062 | 62-1528689 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Jackson HMA, LLC | MS | 4000 Meridian Boulevard | 8062 | 64-0907122 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Jackson Hospital Corporation (KY) | KY | 4000 Meridian Boulevard | 8062 | 61-1285331 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Jackson Hospital Corporation (TN) | TN | 4000 Meridian Boulevard | 8062 | 42-1557525 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Jefferson County HMA, LLC | TN | 4000 Meridian Boulevard | 8062 | 45-2528414 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Jourdanton Hospital Corporation | TX | 4000 Meridian Boulevard | 8062 | 74-3011840 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Kay County Hospital Corporation | OK | 4000 Meridian Boulevard | 8062 | 20-4052833 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Kay County Oklahoma Hospital Company, LLC | OK | 4000 Meridian Boulevard | 8062 | 20-4052936 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Kennett HMA, LLC | MO | 4000 Meridian Boulevard | 8062 | 20-0248087 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Key West HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 65-0905661 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Kirksville Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 36-4373298 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Knoxville HMA Holdings, LLC | TN | 4000 Meridian Boulevard | 8062 | 45-2528116 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lakeway Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 62-1564360 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lancaster Hospital Corporation | DE | 4000 Meridian Boulevard | 8062 | 57-1010381 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Las Cruces Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 75-2905434 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lea Regional Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1760149 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lehigh HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 65-1144586 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lexington Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 42-1557533 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Longview Clinic Operations Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 75-1470252 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Longview Medical Center, L.P. | DE | 4000 Meridian Boulevard | 8062 | 62-1762420 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Longview Merger, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769639 | ||||
| Franklin, Tennessee 37067 | ||||||||
| LRH, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762421 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lutheran Health Network of Indiana, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762363 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Madison HMA, LLC | MS | 4000 Meridian Boulevard | 8062 | 03-0400182 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Marion Hospital Corporation | IL | 4000 Meridian Boulevard | 8062 | 37-1359605 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Marshall County HMA, LLC | OK | 4000 Meridian Boulevard | 8062 | 38-3862800 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Martin Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 42-1557527 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Massillon Community Health System LLC | DE | 4000 Meridian Boulevard | 8062 | 55-0799029 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Massillon Health System LLC | DE | 4000 Meridian Boulevard | 8062 | 34-1840860 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Massillon Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-0201156 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Mayes County HMA, LLC | OK | 4000 Meridian Boulevard | 8062 | 61-1670947 | ||||
| Franklin, Tennessee 37067 | ||||||||
| McKenzie Tennessee Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 42-1557531 | ||||
| Franklin, Tennessee 37067 | ||||||||
| McNairy Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 42-1557530 | ||||
| Franklin, Tennessee 37067 | ||||||||
| MCSA,L.L.C. | AR | 4000 Meridian Boulevard | 8062 | 71-0785071 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Medical Center of Brownwood, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762425 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Melbourne HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 27-3142044 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Merger Legacy Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-1344746 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Mesquite HMA General, LLC | DE | 4000 Meridian Boulevard | 8062 | 41-2035879 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Metro Knoxville HMA, LLC | TN | 4000 Meridian Boulevard | 8062 | 45-2535623 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Mississippi HMA Holdings I, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964464 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Mississippi HMA Holdings II, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964541 | ||||
| Franklin, Tennessee 37067 | ||||||||
| MMC of Nevada, LLC | DE | 4000 Meridian Boulevard | 8062 | 42-1543617 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Moberly Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 43-1651906 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Monroe HMA, LLC | GA | 4000 Meridian Boulevard | 8062 | 20-0141568 | ||||
| Franklin, Tennessee 37067 | ||||||||
| MWMC Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-8007512 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Naples HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 20-4401957 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Natchez Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 37-1756496 | ||||
| Franklin, Tennessee 37067 | ||||||||
| National Healthcare of Leesville, Inc. | DE | 4000 Meridian Boulevard | 8062 | 95-4066162 | ||||
| Franklin, Tennessee 37067 | ||||||||
| National Healthcare of Mt. Vernon, Inc. | DE | 4000 Meridian Boulevard | 8062 | 58-1622971 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Navarro Hospital, L.P. | DE | 4000 Meridian Boulevard | 8062 | 62-1762428 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Navarro Regional, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762429 | ||||
| Franklin, Tennessee 37067 | ||||||||
| NC-DSH, LLC | NV | 4000 Meridian Boulevard | 8062 | 88-0305790 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Northampton Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 52-2325498 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Northwest Arkansas Hospitals, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-5896848 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Northwest Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762430 | ||||
| Franklin, Tennessee 37067 | ||||||||
| NOV Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-8112009 | ||||
| Franklin, Tennessee 37067 | ||||||||
| NRH, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762431 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Oak Hill Hospital Corporation | WV | 4000 Meridian Boulevard | 8062 | 27-0003893 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Oro Valley Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 52-2379881 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Palmer-Wasilla Health System, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762371 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Payson Hospital Corporation | AZ | 4000 Meridian Boulevard | 8062 | 86-0874009 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Pennsylvania Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 06-1694707 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Phillips Hospital Corporation | AR | 4000 Meridian Boulevard | 8062 | 75-2976342 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Phoenixville Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-1055060 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Poplar Bluff Regional Medical Center, LLC | MO | 4000 Meridian Boulevard | 8062 | 43-1238701 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Port Charlotte HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 20-1852902 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Pottstown Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 06-1694708 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Punta Gorda HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 65-0526360 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG Georgia Holdings II, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-1344786 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG Georgia Holdings, Inc. | GA | 4000 Meridian Boulevard | 8062 | 58-2386459 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG Georgia, LP | GA | 4000 Meridian Boulevard | 8062 | 58-2387537 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Bluffton Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1792274 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Clinton County, Inc. | IN | 4000 Meridian Boulevard | 8062 | 35-2006952 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Enterprise, Inc. | AL | 4000 Meridian Boulevard | 8062 | 63-1159023 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Forrest County, Inc. | MS | 4000 Meridian Boulevard | 8062 | 62-1704095 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Fort Wayne Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 35-1946949 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Hattiesburg, Inc. | MS | 4000 Meridian Boulevard | 8062 | 62-1704097 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Massillon, Inc. | OH | 4000 Meridian Boulevard | 8062 | 31-1472380 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of South Carolina, Inc. | SC | 4000 Meridian Boulevard | 8062 | 62-1587267 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Spartanburg, Inc. | SC | 4000 Meridian Boulevard | 8062 | 57-1040117 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Springdale, Inc. | AR | 4000 Meridian Boulevard | 8062 | 62-1755664 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Quorum Health Resources, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1742954 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Red Bud Hospital Corporation | IL | 4000 Meridian Boulevard | 8062 | 36-4444121 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Red Bud Illinois Hospital Company, LLC | IL | 4000 Meridian Boulevard | 8062 | 36-4443919 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Regional Hospital of Longview, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762464 | ||||
| Franklin, Tennessee 37067 | ||||||||
| River Oaks Hospital, LLC | MS | 4000 Meridian Boulevard | 8062 | 64-0626874 | ||||
| Franklin, Tennessee 37067 | ||||||||
| River Region Medical Corporation | MS | 4000 Meridian Boulevard | 8062 | 62-1576702 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Rockledge HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 27-3142075 | ||||
| Franklin, Tennessee 37067 | ||||||||
| ROH, LLC | MS | 4000 Meridian Boulevard | 8062 | 64-0780035 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Roswell Hospital Corporation | NM | 4000 Meridian Boulevard | 8062 | 74-2870118 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Ruston Hospital Corporation | DE | 4000 Meridian Boulevard | 8062 | 20-8066937 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Ruston Louisiana Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-8066999 | ||||
| Franklin, Tennessee 37067 | ||||||||
| SACMC, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762472 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Salem Hospital Corporation | NJ | 4000 Meridian Boulevard | 8062 | 22-3838322 | ||||
| Franklin, Tennessee 37067 | ||||||||
| San Angelo Community Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762473 | ||||
| Franklin, Tennessee 37067 | ||||||||
| San Angelo Medical, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769697 | ||||
| Franklin, Tennessee 37067 | ||||||||
| San Miguel Hospital Corporation | NM | 4000 Meridian Boulevard | 8062 | 74-2930034 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Scranton Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-4577223 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Scranton Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-4564798 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Scranton Quincy Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-2671991 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Scranton Quincy Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-2672023 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Sebastian Hospital, LLC | FL | 4000 Meridian Boulevard | 8062 | 65-0425888 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Sebring Hospital Management Associates, LLC | FL | 4000 Meridian Boulevard | 8062 | 59-2546390 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Seminole HMA, LLC | OK | 4000 Meridian Boulevard | 8062 | 45-4164241 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Sharon Pennsylvania Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 46-4257540 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Sharon Pennsylvania Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 38-3920098 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Shelbyville Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 20-2909388 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Siloam Springs Arkansas Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3635210 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Siloam Springs Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3635188 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Southeast HMA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964613 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Southern Texas Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769737 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Southwest Florida HMA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964696 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Spokane Valley Washington Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1315140 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Spokane Washington Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1315081 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Statesville HMA, LLC | NC | 4000 Meridian Boulevard | 8062 | 56-2206788 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tennessee HMA Holdings, LP | DE | 4000 Meridian Boulevard | 8062 | 46-1750499 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tennyson Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-3943816 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tomball Texas Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-2784214 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tomball Texas Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-2856063 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tooele Hospital Corporation | UT | 4000 Meridian Boulevard | 8062 | 87-0619248 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad Healthcare Corporation | DE | 4000 Meridian Boulevard | 8062 | 75-2816101 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad Holdings III, LLC | DE | 4000 Meridian Boulevard | 8062 | 75-2821745 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad Holdings IV, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1766957 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad Holdings V, LLC | DE | 4000 Meridian Boulevard | 8062 | 51-0327978 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Triad Nevada Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1639289 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad of Alabama, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762412 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad of Oregon, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1761990 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad-ARMC, LLC | DE | 4000 Meridian Boulevard | 8062 | 46-0496926 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad-El Dorado, Inc. | AR | 4000 Meridian Boulevard | 8062 | 62-1628508 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad-Navarro Regional Hospital Subsidiary, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1681610 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tunkhannock Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-4566015 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Van Buren H.M.A., LLC | AR | 4000 Meridian Boulevard | 8062 | 58-1725652 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Venice HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 20-1852812 | ||||
| Franklin, Tennessee 37067 | ||||||||
| VHC Medical, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769671 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Vicksburg Healthcare, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1752111 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Victoria Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1760818 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Victoria of Texas, L.P. | DE | 4000 Meridian Boulevard | 8062 | 62-1754940 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Virginia Hospital Company, LLC | VA | 4000 Meridian Boulevard | 8062 | 02-0691406 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Warren Ohio Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-3190619 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Warren Ohio Rehab Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-3190578 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Watsonville Hospital Corporation | DE | 4000 Meridian Boulevard | 8062 | 91-1894113 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Waukegan Hospital Corporation | IL | 4000 Meridian Boulevard | 8062 | 20-3978400 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Waukegan Illinois Hospital Company, LLC | IL | 4000 Meridian Boulevard | 8062 | 20-3978521 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Weatherford Hospital Corporation | TX | 4000 Meridian Boulevard | 8062 | 20-5694260 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Weatherford Texas Hospital Company, LLC | TX | 4000 Meridian Boulevard | 8062 | 20-5694301 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Webb Hospital Corporation | DE | 4000 Meridian Boulevard | 8062 | 20-0167530 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Webb Hospital Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-0167590 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Wesley Health System LLC | DE | 4000 Meridian Boulevard | 8062 | 52-2050792 | ||||
| Franklin, Tennessee 37067 | ||||||||
| West Grove Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 25-1892279 | ||||
| Franklin, Tennessee 37067 | ||||||||
| WHMC, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762551 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Wilkes-Barre Behavioral Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3632720 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Wilkes-Barre Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3632542 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Wilkes-Barre Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3632648 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Williamston Hospital Corporation | NC | 4000 Meridian Boulevard | 8062 | 62-1749107 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Winder HMA, LLC | GA | 4000 Meridian Boulevard | 8062 | 20-3749930 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Women & Children’s Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762556 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Woodland Heights Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762558 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Woodward Health System, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762418 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Yakima HMA, LLC | WA | 4000 Meridian Boulevard | 8062 | 45-0506909 | ||||
| Franklin, Tennessee 37067 | ||||||||
| York Pennsylvania Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 32-0360922 | ||||
| Franklin, Tennessee 37067 | ||||||||
| York Pennsylvania Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-4082660 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Youngstown Ohio Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-3074094 | ||||
| Franklin, Tennessee 37067 | ||||||||
Item 1. General Information. Furnish the following information as to the trustee:
| (a) | Name and address of each examining or supervising authority to which it is subject. |
Federal Reserve Bank of Atlanta, 1000 Peachtree Street NE, Atlanta, Georgia 30309-4470
Alabama State Banking Department, P.O. Box 4600, Montgomery, Alabama 36103-4600
| (b) | Whether it is authorized to exercise corporate trust powers. |
The Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
No responses are included for Items 3-15 of this Form T-1 because to the best of the Trustee’s knowledge, the obligor is not in default as provided under Item 13.
Item 16. List of Exhibits.
| Exhibit 1. | Articles of Incorporation of the Trustee, attached as Exhibit 1. | |
| Exhibit 2. | Not applicable. | |
| Exhibit 3. | Authorization of the Trustee to exercise corporate trust powers (incorporated by reference to Exhibit 3 to Form T-1, Registration No. 22-21909). | |
| Exhibit 4. | Bylaws of the Trustee, attached as Exhibit 4 | |
| Exhibit 5. | Not applicable. | |
| Exhibit 6. | The consent of the Trustee required by Section 321(b)of the Act, attached as Exhibit 6. | |
| Exhibit 7. | A copy of the latest report of condition of the Trustee published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. | |
| Exhibit 8. | Not applicable. | |
| Exhibit 9. | Not applicable. | |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Regions Bank, an Alabama banking corporation, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Nashville and State of Tennessee on the 6th day of May, 2015.
| REGIONS BANK | ||
| By: | /s/ Paul Williams | |
| Name: Paul Williams | ||
| Title: Vice President | ||
Exhibit 1 to Form T-1
ARTICLES OF INCORPORATION OF THE TRUSTEE
This instrument prepared by:
Charles C. Pinckney
Adams and Reese LLP
1901 6th Avenue North, Suite 3000
Birmingham, Alabama 35203
ARTICLES OF AMENDMENT TO
ARTICLES OF INCORPORATION
OF
REGIONS BANK
REGIONS BANK, a corporation organized and existing under the laws of the State of Alabama, hereby certifies as follows:
1.) The name of the corporation is Regions Bank.
2.) This restatement of the Articles of Incorporation restates and integrates the amendments to the Articles of Incorporation as previously filed and further amends the Articles of Incorporation by amending Article 6 of the Articles of Incorporation as previously filed.
3.) The text of the Restated Articles of Incorporation reads as herein set forth in full:
Page 1 of 6
RESTATED ARTICLES OF INCORPORATION
OF
REGIONS BANK
1. The name of this corporation shall be Regions Bank.
2. The principal place of business shall be 1900 Fifth Avenue North, Birmingham, Alabama. The general business of Regions Bank (the “Bank”) shall be conducted at its main office and its branches and other facilities.
3. The Bank shall have the following objects, purposes and powers:
a. To sue and be sued, complain and defend, in its corporate name.
b. To have a corporate seal which may be altered at pleasure, and to use the same by causing it, or a facsimile thereof, to be impressed or affixed or in any other manner reproduced.
c. To purchase, take, receive, lease, or otherwise acquire, own, hold, improve, use and otherwise deal in and with, real or personal property, or any interest therein, wherever situated.
d. To sell, convey, mortgage, pledge, lease, exchange, transfer and otherwise dispose of all or any part of its property and assets, subject to the limitations hereinafter prescribed.
e. To lend money and use its credit to assist its employees.
f. To purchase, take, receive, subscribe for, or otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge, or otherwise dispose of, and otherwise use and deal in and with, shares or other interests in, or obligations of, other domestic or foreign corporations, associations, partnerships or individuals, or direct or indirect obligations of the United States or of any other government, state, territory, governmental district, or municipality or of any instrumentality thereof as may be permitted by law or appropriate regulations.
g. To make contracts, guarantees, and indemnity agreements and incur liabilities, borrow money at such rates of interest as the corporation may determine, issue its notes, bonds, and other obligations, and secure any of its obligations by mortgage, pledge of, or creation of security interests in, all or any of its property, franchises, or income, or any interest therein, not inconsistent with the provisions of the Constitution of Alabama as the same may be amended from time to time.
h. To lend money for its corporate purposes, invest and reinvest its funds, and take and hold real and personal property as security for the payment of funds so loaned or invested.
Page 2 of 6
i. To conduct its business, carry on its operations and have offices and exercise the powers granted by this Article, within or without the State of Alabama.
j. To elect or appoint and remove officers and agents of the Bank, and define their duties and fix their compensation.
k. To make and alter by its board of directors bylaws not inconsistent with its articles of incorporation or with the laws of this state for the administration and regulation of the affairs of the Bank.
l. To make donations for the public welfare or for charitable, scientific, or educational purposes.
m. To transact any lawful business which the board of directors shall find will be in aid of governmental policy.
n. To pay pensions and establish pension plans, pension trusts, profit sharing plans, stock bonus plans, stock option plans and other incentive plans for any or all of its directors, officers and employees.
o. To be a promoter, incorporator, partner, member, trustee, associate, or manager of any domestic or foreign corporation, partnership, joint venture, trust, or other enterprise.
p. To consolidate or merge, before or after the completion of its works or plants, in the manner herein provided, with any other foreign or domestic corporation or corporations engaged in the business of banking or trust companies doing a banking business subject to the limitations hereinafter prescribed.
q. To have and exercise all powers permitted by the laws of Alabama necessary or convenient to effect its purposes.
r. To discount bills, notes or other evidences of debt.
s. To receive and pay out deposits, with or without interest, pay checks, and impose charges for any services.
t. To receive on special deposit money, bullion or foreign coins or bonds or other securities.
u. To buy and sell foreign and domestic exchanges, gold and silver bullion or foreign coins, bonds, bills of exchange, notes and other negotiable paper.
v. To lend money on personal security or upon pledges of bonds, stocks or other negotiable securities.
w. To take and receive security by mortgage, security or otherwise on property, real and personal.
Page 3 of 6
x. To become trustee for any purpose and be appointed and act as executor, administrator, guardian, receiver, or fiduciary.
y. To lease real and personal property upon specific request of a customer, provided it complies with any applicable Alabama laws regulating leasing real property or improvements thereon to others.
z. To perform computer, management and travel agency services for others.
aa. To subscribe to the capital stock and become a member of the federal reserve system and comply with rules and regulations thereof.
bb. To do any business and exercise directly or through operating subsidiaries any powers incident to the business of banks.
4. The duration of the corporation shall be perpetual.
5. The Board of Directors is expressly authorized from time to time to fix the number of Directors which shall constitute the entire Board, subject to the following:
a. The number of Directors constituting the entire Board shall be fixed from time to time by vote of a majority of the entire Board, provided, however, that the number of Directors shall not be reduced so as to shorten the term of any Director at the time in office, and provided further, shall not be less than three nor more than twenty-five (25). Each Director shall be the record owner of the requisite number of shares of common stock of the Bank’s parent bank holding company fixed by the appropriate regulatory authorities.
b. Notwithstanding any other provisions of the Articles of Incorporation or the bylaws of the Bank (and notwithstanding the fact that some lesser percentage may be specified by law, these Restated Articles of Incorporation or the bylaws of the Bank), any Director or the entire Board of Directors of the Bank may be removed at any time, with or without cause by the affirmative vote of the holders of ninety percent (90%) or more of the outstanding shares of capital stock of the Bank entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of the stockholders called for that purpose.
6. The aggregate number of shares of capital stock which the Bank shall have authority to issue is thirty thousand five hundred forty six (30,546) shares, which shall be common stock, par value five dollars ($5.00) per share (the “Common Stock”). The Bank shall not issue fractional shares of stock, but shall pay in cash the fair value of fractions of a share as of the time when those otherwise entitled to receive such fractions are determined.
a. Shareholders shall not have pre-emptive rights to purchase shares of any class of capital stock of the Bank. The Bank, at any time and from time to time, may authorize and issue debt obligations, whether or not subordinated, without the approval of the shareholders.
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b. Authority is hereby expressly granted to the Board of Directors from time to time to issue any authorized but unissued shares of Common Stock for such consideration and on such terms as it may determine. Every share of Common Stock of the Bank shall have one vote at any meeting of the shareholders and may be voted by the shareholders of record either in person or by proxy.
c. In the event of any liquidation, dissolution, or winding up of the Bank or upon the distribution of the assets of the Bank, the assets of the Bank remaining after satisfaction of all obligations and liabilities shall be divided and distributed among the holders of the Common Stock ratably. Neither the merger or consolidation of the Bank with another corporation nor the sale or lease of all or substantially all of the assets of the Bank shall be deemed to be a liquidation, dissolution, or winding up of the Bank or a distribution of its assets.
d. The holders of Common Stock shall have the exclusive power to vote and shall have one vote in respect of each share of such stock held by them.
7. The Chief Executive Officer, Secretary, Board of Directors, or holder(s) of at least 90% of the issued and outstanding voting stock of the Bank may call a special meeting of shareholders at any time. Unless otherwise provided by the laws of Alabama, notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be given by first-class mail, postage prepaid, mailed at least ten days prior to the date of such meeting to each shareholder of record at his address as shown upon the stock transfer book of this Bank.
8. The Bank reserves the right to amend, alter, change or repeal any provision contained in these Restated Articles of Incorporation, in the manner now or hereafter provided by law, at any regular or special meeting of the shareholders, and all rights conferred upon officers, directors and shareholders of the Bank hereby are granted subject to this reservation.
9. The Bank shall indemnify its officers, directors, employees, and agents to the fullest extent permitted by the Constitution and laws of the State of Alabama.
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4.) This amendment to and restatement of the Articles of Incorporation was duly adopted by vote of the directors of the Bank pursuant to Section 10A-2-10.03 of the Alabama Business Corporation Law and was approved by the sole shareholder in accordance with Section 10A-2-10.03, by unanimous consent of the holder of 21,546 shares of common stock, constituting all of the shares of capital stock of the Bank outstanding, indisputably represented, and entitled to vote on the amendment. The date of adoption of the Restated Articles of Incorporation was July 17, 2014.
IN WITNESS WHEREOF, said Regions Bank has caused this certificate to be signed by Fournier J. Gale, III, its Senior Executive Vice President, General Counsel and Corporate Secretary, this 17th day of July, 2014.
| REGIONS BANK | ||
| By: | /s/ Fournier J. Gale, III | |
| Fournier J. Gale, III | ||
| Senior Executive Vice President, General | ||
| Counsel and Corporate Secretary | ||
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STATE OF ALABAMA
MONTGOMERY COUNTY
I, John D. Harrison, as Superintendent of Banks for the State of Alabama, do hereby certify that I have fully and duly examined the foregoing Articles of Amendment whereby the shareholder of Regions Bank, a banking corporation located at Birmingham, Alabama, proposes to Restate the Articles of Incorporation.
See attached Articles of Amendment which Restate the Articles of Incorporation of Regions Bank.
I do hereby certify that said Amendment of the Articles of Incorporation appear to be in substantial conformity with the requirements of law and they are hereby approved. Upon the filing of the same, together with this Certificate of Approval, with the proper agency as required by law, the Restated Articles of Incorporation of said bank shall be effective.
Given under my hand and seal of office this the 30th day of July, 2014.
| /s/ John D. Harrison | ||
| John D. Harrison | ||
| Superintendent of Banks | ||
Jefferson County
I, the Undersigned, as Judge of Probate in and for said County, in said State, hereby certify that the foregoing is a full, true and correct copy of the instrument with the filing of same as appears of record in this office in vol. 201415 page 9638 Given under my hand and official seal, this the 31st day of July, 2014.
| /s/ Alan L. King |
| Judge of Probate |
Exhibit 4 to Form T-1
BY-LAWS OF THE TRUSTEE
BY-LAWS OF
REGIONS BANK
(As amended July 18, 2013)
ARTICLE I. OFFICES
Section 1. Registered Office.
The registered office shall be established and maintained at the office of the CSC Lawyers Incorporating Service, Inc., in the City of Montgomery, in the County of Montgomery, in the State of Alabama, and said corporation shall be the registered agent of this Bank in charge thereof.
Section 2. Other Offices.
The Bank may have other offices, either within or without the State of Alabama, at such place or places as the Board of Directors may from time to time appoint or the business of the Bank may require.
Section 3. Principal Place of Business.
The principal place of business of the Bank shall be in Birmingham, Alabama.
ARTICLE II. MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting.
Annual meetings of stockholders for the election of Directors and for such other business as may be stated in the notice of the meeting, shall be held at such place, either within or without the State of Alabama, and at such time and date as the Board of Directors, by resolution, shall determine and as set forth in the notice of the meeting.
At each annual meeting, the stockholders entitled to vote shall elect Directors, and they may transact such other corporate business as may properly come before the meeting.
Section 2. Special Meetings.
Special meetings of the stockholders for any purpose or purposes, other than the election of Directors, may be called at any time by the Chairman of the Board, the Chief Executive Officer, the President, the Secretary, or by resolution of the Directors. Special meetings of stockholders may be held at such time and place, within or without the State of Alabama, as shall be stated in the notice of the meeting.
Section 3. Voting.
The vote of a majority of the votes cast by the shares entitled to vote on any matter at a meeting of stockholders at which a quorum is present shall be the act of the stockholders on that matter, except as otherwise required by law or by the articles of incorporation of the Bank.
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Section 4. Quorum.
A majority of the outstanding shares of the Bank entitled to vote, represented in person or by proxy, shall constitute a quorum at meetings of stockholders. If less than a majority of the outstanding shares are represented, a majority of the shares so represented may adjourn the meeting from time to time without further notice, but until a quorum is secured no other business may be transacted. The stockholders present at a duly organized meeting may continue to transact business until an adjournment notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
ARTICLE III. DIRECTORS
Section 1. Number and Term.
The number of Directors which shall constitute the whole Board of Directors shall be fixed, from time to time, by resolutions adopted by the Board of Directors, but shall not be less than three persons. The number of Directors shall not be reduced so as to shorten the term of any Director at the time in office.
At each annual meeting of stockholders, all Directors shall be elected for terms of one year, and except as hereinafter provided, each Director shall hold office until the next annual meeting or until his or her successor shall have been elected and qualified, or until his or her earlier retirement, death, resignation or removal. Directors need not be residents of Alabama.
Section 2. Chairman of the Board and Vice Chairman of the Board.
The Board of Directors shall by majority vote designate from time to time from among its members a Chairman of the Board. The Chairman of the Board shall preside at all meetings of the stockholders and of the Board of Directors of the Bank. He or she shall have and perform such duties as prescribed by the By-Laws and by the Board of Directors. The position of Chairman of the Board is a Board position, provided however, the position of Chairman of the Board may be held by a person who is also an officer of the Bank.
The Board of Directors may by majority vote designate from time to time from among its members one or more Vice Chairmen of the Board. A Vice Chairman of the Board shall preside at all meetings of the stockholders and of the Board of Directors of the Bank which the Chairman of the Board shall be unable to attend. He or she shall assist the Chairman of the Board in the exercise of his or her duties and shall have and perform such duties as are prescribed from time to time by the Board of Directors. In the event of the death or incapacity of the Chairman of the Board, he or she shall perform all the duties of the Chairman of the Board until the next annual meeting of the stockholders or until the Board shall have sooner elected a successor Chairman of the Board. The position of Vice Chairman of the Board is a Board position, provided however, that the position of Vice Chairman of the Board may be held by a person who is also an officer of the Bank.
In the absence of the Chairman of the Board and Vice Chairman of the Board or in case of their inability to act; the Independent Lead Director, if at the time a Director of the Bank has been designated by the Board of Directors as such, shall have and exercise all the powers and duties of such office and shall preside at all meetings of the Board of Directors. If at any Board of Directors meeting none of such persons is present or able to act, the Board of Directors shall select one of its members as acting chair of the meeting or portion thereof.
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Section 3. Resignations.
Any Director may resign at any time. Such resignation shall be made in writing, and shall take effect at the time of its receipt by the Chairman of the Board, Chief Executive Officer, the President, or the Secretary or at such other time as may be specified therein. The acceptance of a resignation shall not be necessary to make it effective.
Section 4. Vacancies.
If the office of any Director becomes vacant, the remaining Directors in office, though less than a quorum, by a majority vote, may appoint any qualified person to fill such vacancy, who shall hold office for the unexpired term and until his successor shall be duly chosen.
Section 5. Removal.
Any Director may be removed at any time, with or without cause, by the affirmative vote of the holders of a majority of the outstanding shares of capital stock of the Bank entitled to vote generally in the election of Directors considered for this purpose as one class cast at a meeting of the stockholders called for that purpose.
Section 6. Powers.
The Board of Directors shall exercise all the powers of the Bank except such as are by law, by the Articles of Incorporation of the Bank or pursuant to the Bank’s bylaws conferred upon or reserved to the stockholders.
Section 7. Meetings.
A regular meeting of the Board of Directors shall be held immediately before or after the annual meeting of stockholders. Additional regular meetings of the Directors may be held without notice at such places and times as shall be determined from time to time by resolution of the Directors.
Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, the President, or by the Secretary on the written request of a majority of the Board of Directors on at least two days’ notice to each Director and shall be held at such place or places as may be determined by the Directors, or as shall be stated in the call of the meeting.
Unless otherwise restricted by the Articles of Incorporation or these By-Laws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
Section 8. Quorum.
A majority of the Directors shall constitute a quorum for the transaction of business. If at any meeting of the Board of Directors there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at the meeting which shall be so adjourned. Notwithstanding the withdrawal of enough Directors to leave less than a quorum, the Directors present at a duly organized meeting may continue to transact business until adjournment.
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Section 9. Compensation.
Directors shall not receive any stated salary for their services as Directors or as members of committees, except that by resolution of the Board of Directors, retainer fees, meeting fees, and expenses of attendance at meetings may be authorized. Nothing herein contained shall be construed to preclude any Director from serving the Bank in any other capacity as an officer, agent or otherwise, and receiving compensation therefore.
Section 10. Action Without Meeting.
Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof, may be taken without a meeting, if prior to such action a written consent thereto is signed by all members of the Board of Directors, or of such committee as the case may be, and such written consent is filed with the minutes of proceedings of the Board of Directors or committee.
Section 11. Committees.
A majority of the whole Board of Directors shall have the authority to designate one or more committees, each committee to consist of one or more of the Directors of the Bank. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the Board or in these By-Laws, shall have and may exercise the powers of the Board of Directors in the management of the business and affairs of the Bank, and may authorize the seal of the Bank to be affixed to all papers which may require it; provided, however, that in the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not the member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.
Section 12. Eligibility.
No person shall be eligible to serve as Director of the Bank unless such person shall be the owner of shares of stock of the parent holding company of the number and held in the manner sufficient to meet the requirements of any applicable law or regulation in effect requiring the ownership of Directors’ qualifying shares.
Section 13. Directors Protected.
Each Director shall in the performance of his or her duties be fully protected in relying in good faith upon reports made to the Directors by the officers of the Bank or by state or federal bank examiners or by any independent accountant or by any appraiser selected with reasonable care, or by counsel, or by a committee of the Board, or in relying in good faith upon other records or books of account of the Bank.
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ARTICLE IV. OFFICERS
Section 1. Officers, Elections, Terms.
The officers of the Bank shall be a Chief Executive Officer; a President; one or more Regional or Local Presidents if the Board so determines; one or more Vice Presidents, who may be designated Senior Executive Vice Presidents, Executive Vice Presidents, Senior Vice Presidents, Vice Presidents, and Assistant Vice Presidents; a Secretary; one or more Assistant Secretaries; a Chief Financial Officer; a Controller; an Auditor; and such other officers as may be deemed appropriate. All of such officers shall be appointed annually by the Board of Directors to serve for a term of one year and until their respective successors are appointed and qualified or until such officer’s earlier death, resignation, retirement, or removal, except that the Board of Directors may delegate the authority to appoint officers holding the position of Senior Executive Vice President and below in accordance with procedures established or modified by the Board from time to time. Those Officers who serve in the Trust Department shall be so designated by the word “Trust” in their title. None of the officers of the Bank need be Directors. More than one office may be held by the same person.
Section 2. Chief Executive Officer.
The Board of Directors shall appoint a Chief Executive Officer of the Bank. The Chief Executive Officer is the most senior executive officer of the Bank, and shall be vested with authority to act for the Bank in all matters and shall have general supervision of the Bank and of its business affairs, including authority over the detailed operations of the Bank and over its personnel, with full power and authority during intervals between sessions of the Board to do and perform in the name of the Bank all acts and deeds necessary or proper, in his or her opinion, to be done and performed and to execute for and in the name of the Bank all instruments, agreements, and deeds which may be authorized to be executed in behalf of the Bank or which may be required by law. The Chief Executive Officer may, but need not, also hold the office of President.
Section 3. President.
The President shall, subject to the control of the Board of Directors and of any committee of the Board having authority in the premises, have, and may exercise the authority to act for the Bank in all ordinary matters and perform other such duties as directed by the By-Laws, the Board of Directors, or the Chief Executive Officer. Among the officers of the Bank, the President is subordinate to only the Chief Executive Officer and is senior to the other officers of the Bank. The authority of the President shall include authority over the detailed operations of the Bank and over its personnel with full power and authority during intervals between sessions of the Board to do and perform in the name of the Bank all acts and deeds necessary or proper, in his or her opinion, to be done and performed and to execute for and in the name of the Bank all instruments, agreements, and deeds which may be authorized to be executed in behalf of the Bank or which may be required by law.
Section 4. Vice Presidents.
The Vice Presidents shall, subject to the control of the Board of Directors, the Chief Executive Officer or the President, have and may exercise the authority vested in them in all proper matters, including authority over the detailed operations of the Bank and over its personnel.
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Section 5. Chief Financial Officer.
The Chief Financial Officer or his designee shall have custody of all funds of the Bank. He or his designee shall have and perform such duties as are incident to the office of Chief Financial Officer and such other duties as may from time to time be assigned to him by the Board of Directors, the Chief Executive Officer, or the President.
Section 6. Secretary.
The Secretary shall keep minutes of all meetings of the stockholders and the Board of Directors unless otherwise directed by those bodies. The Secretary, or in his absence, any Assistant Secretary, shall attend to the giving and serving of all notices of the Bank. He shall perform all the duties incident to the office of Secretary, subject to the control of the Board of Directors, and shall do and perform such other duties as may from time to time be assigned by the Board of Directors, the Chairman of the Board, the Chief Executive Officer, or the President.
Section 7. Controller.
The Controller shall, under the direction of the Chief Executive Officer, the President, the Chief Financial Officer, or a more senior officer, have general supervision and authority over all reports required of the Bank by law or by any public body or officer or regulatory authority pertaining to the condition of the Bank and its assets and liabilities. The Controller shall have general supervision of the books and accounts of the Bank and its methods and systems of recording and keeping accounts of its business transactions and of its assets and liabilities. The Controller shall be responsible for preparing statements showing the financial condition of the Bank and shall furnish such reports and financial records as may be required of him or her by the Board of Directors or by the Chief Executive Officer, the President, the Chief Financial Officer, or other more senior officer.
Section 8. Auditor.
The Auditor’s office may be filled by an employee of the Bank or his or her duties may be performed by an employee or committee of the parent company of the Bank. The Auditor shall have general supervision of the auditing of the books and accounts of the Bank, and shall continuously and from time to time check and verify the Bank’s transactions, its assets and liabilities, and the accounts and doings of the officers, agents and employees of the Bank with respect thereto. The Auditor whether an employee of the Bank or of its parent shall be directly accountable to and under the jurisdiction of the Board of Directors and, if applicable, its designated committee, acting independently of all officers, agents and employees of the bank. The Auditor shall render reports covering matters in his or her charge regularly and upon request to the Board and, if applicable, its designated committee.
Section 9. Other Officers and Agents.
The Board of Directors may appoint such other officers and agents as it may deem advisable, who shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors. The functions of a cashier of the Bank may be performed by the Controller or any other officer of the Bank whose area of responsibility includes the function to be performed.
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Section 10. Officer in Charge of Wealth Management.
The officer in charge of Wealth Management shall be designated as such by the Board of Directors and shall exercise general supervision and management over the affairs of Private Wealth Management, Institutional Services, and Wealth Management Operations and Support, which groups are responsible for exercise of the Bank’s trust powers. That officer is hereby empowered to appoint all necessary agents or attorneys; also to make, execute and acknowledge all checks, bonds, certificates, deeds, mortgages, notes, releases, leases, agreements, contracts, bills of sale, assignments, transfers, powers of attorney or of substitution, proxies to vote stock, or any other instrument in writing that may be necessary in the purchase, sale, mortgage, lease, assignment, transfer, management or handling, in any way of any property of any description held or controlled by the Bank in any fiduciary capacity. Said officer shall have such other duties and powers as shall be designated by the Board of Directors.
Section 11. Other Officers in Private Wealth Management, Institutional Services, and Wealth Management Operations and Support.
The officer in charge of Wealth Management shall appoint officers responsible for the activities of Private Wealth Management, Institutional Services, and Wealth Management Operations and Support. Various other officers as designated by the officers responsible for the activities of Private Wealth Management, Institutional Services, and Wealth Management Operations and Support are empowered and authorized to make, execute, and acknowledge all checks, bonds, certificates, deeds, mortgages, notes, releases, leases, agreements, contracts, bills of sale, assignments, transfers, powers of attorney or substitution, proxies to vote stock or any other instrument in writing that may be necessary to the purchase, sale, mortgage, lease, assignments, transfer, management or handling in any way, of any property of any description held or controlled by the Bank in any fiduciary capacity.
Section 12. Removal and Retirement of Officers.
At its pleasure, the Board of Directors may remove any officer from office at any time by a majority vote of the Board, provided however that the terms of any employment or compensation contract shall be honored according to its terms. An individual’s status as an officer will terminate without the necessity of any other action or ratification immediately upon termination for any reason of the individual’s employment by the Bank.
ARTICLE V. MISCELLANEOUS
Section 1. Certificates of Stock.
Certificates of stock of the Bank shall be signed by the President and the Secretary of the Bank, which signatures may be represented by a facsimile signature. The certificate may be sealed with the seal of the Bank or an engraved or printed facsimile thereof. The certificate represents the number of shares of stock registered in certificate form owned by such holder.
Section 2. Lost Certificates.
In case of the loss or destruction of any certificate of stock, the holder or owner of same shall give notice thereof to the Chief Executive Officer, the President, any Vice President, or the Secretary of the Bank and, if such holder or owner shall desire the issue of a new certificate in the place of the one lost or destroyed, he or she shall make affidavit of such loss or destruction and deliver the same to any one of said officers and accompany the same with a bond with surety satisfactory to the Bank to indemnify the
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Bank and save it harmless against any loss, cost or damage in case such certificate should thereafter be presented to the Bank, which affidavit and bond shall be, at the discretion of the deciding party listed in this Section 2, unless so ordered by a court having jurisdiction over the matter, approved or rejected by the Board of Directors or by the Chief Executive Officer or by the President or an Executive or Senior Vice President before the issue of any new certificate.
Section 3. Transfer of Shares.
Title to a certificate and to the shares represented thereby can be transferred only by delivery of the certificate endorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby, or by delivery of the certificate and a separate document containing a written assignment of the certificate or a power of attorney to sell, assign, or transfer the same or the shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby. Such assignment or power of attorney maybe either in blank or to a specified person.
Section 4. Fractional Shares.
No fractional part of a share of stock shall ever be issued by this Bank.
Section 5. Stockholders Record Date.
In order that the Bank may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
Section 6. Dividends.
Subject to the provisions of the Articles of Incorporation, the Board of Directors may, out of funds legally available therefore at any regular or special meeting, declare dividends upon the capital stock of the Bank as and when they deem expedient. Before declaring any dividend there may be set apart out of any fund of the Bank available for dividends, such sum or sums as the Directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the Directors shall deem conducive to the interests of the Bank. No dividends shall be declared which exceed the amounts authorized by applicable laws and regulations or are otherwise contrary to law.
Section 7. Seal.
The corporate seal of the Bank shall be circular in shape and shall include the words “Regions Bank” around the outer edge of the circle and the word “Seal” in the center of the circle. The seal may also include appropriate descriptors, such as the words: “An Alabama Banking Corporation”. The Secretary of the Bank shall have custody of the seal and is authorized to affix the same to instruments, documents, and papers as required by law or as customary or appropriate in the Secretary’s judgment and
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discretion. Without limiting the general authority of the Board of Directors of the Bank to name, appoint, remove, and define the duties of officers of the Bank, the Secretary is further authorized to cause reproductions of the seat to be made, distributed to, and used by officers and employees of the Bank whose duties and responsibilities involve the execution and delivery of instruments, documents, and papers bearing the seal of the Bank. In this regard, the Secretary is further authorized to establish, implement, interpret, and enforce policies and procedures governing the use of the seal and the authorization by the Secretary of officers and employees of the Bank to have custody of and to use the seal. Such policies and procedures may include (i) the right of the Secretary to appoint any Bank employee as an Assistant Secretary of the Bank, if such appointment would, in the Secretary’s judgment, be convenient with respect to such employee’s custody and use of a seal and/or (ii) the right of the Secretary to authorize Bank employees to have and use seals as delegates of the Secretary without appointing such employees as Assistant Secretaries of the Bank.
Section 8. Fiscal Year.
The fiscal year of the Bank shall be the calendar year.
Section 9. Checks, Drafts, Transfers, etc.
The Chief Executive Officer, the President, any Regional or Local President, any Vice President or Assistant Vice President, any Branch Manager or any other employee designated by the Board of Directors, is authorized and empowered on behalf of the Bank and in its name to sign and endorse checks and warrants, to draw drafts, to issue and sign cashier’s checks, to guarantee signatures, to give receipts for money due and payable to the Bank, to sell, assign and transfer shares of capital stock, bonds, or other personal property or securities standing in the name of or held by the Bank, whether in its own right or in any fiduciary capacity, and to make or join in such consents, requests or commitments with respect to the same as may be appropriate or authorized as to the holder thereof, and to sign such other papers and do such other acts as are necessary in the performance of his or her duties. The authority conveyed to any employee designated by the Board may be limited by general or specific resolution of the Board.
Section 10. Notice and Waiver of Notice.
Whenever any notice is required by these By-Laws to be given, personal notice is not meant unless expressly so stated, and any notice so required shall be deemed to be sufficient if given by depositing the same in the United States, mail, postage, prepaid, or by telegram, teletype, facsimile transmission or other form of wire, wireless, or other electronic communication or by private carrier addressed to the person entitled thereto at his address as it appears on the records of the Bank, and such notice shall be deemed to have been given on the date of such mailing. Stockholders not entitled to vote shall not be entitled to receive notice of meetings except as otherwise provided by statute.
Whenever any notice whatever is required to be given under the provisions of any law, or under the provisions of the Articles of Incorporation of the Bank or these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.
Section 11. Right of Indemnity.
To the full extent allowed by Section 10-2B-8.5 et seq. of the Code of Alabama (1975), or any statute amendatory or supplemental thereof, the Bank shall indemnify and hold harmless each director or officer now or hereafter serving the Bank against any loss and reasonable expenses actually and necessarily incurred by him or her in connection with the defense of any claim, or any action, suit or
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proceeding against him or her or in which he or she is made a party, by reason of his or her being or having been a Director or officer of the Bank, or who, while a Director or officer of the Bank, is or was serving as at the Bank’s request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. Such right of indemnity shall not be deemed exclusive of any other rights to which such Director or officer may be entitled under any statute, article of incorporation, rule of law, other bylaw, agreement, vote of stockholders or directors, or otherwise. Nor shall anything herein contained restrict the right of the Bank to indemnify or reimburse any officer or Director in any proper case even though not specifically provided for herein. The Bank may purchase and maintain insurance in such amounts as the Board of Directors deems appropriate on behalf of said Directors or officers so as to offset any potential liability asserted against said Directors or officers acting in such capacity as described in these By-Laws.
Section 12. Execution of Instruments and Documents.
The Chief Executive Officer, or the President, or any Regional or Local President or any Vice President is authorized, in his or her discretion, to do and perform any and all corporate and official acts in carrying on the business of the Bank, including, but not limited to, the authority to make, execute, acknowledge, accept and deliver any and all deeds, mortgages, releases, bills of sale, assignments, transfers, leases (as lessor or lessee), powers of attorney or of substitution, servicing or sub-servicing agreements, vendor agreements, proxies to vote stock or any other instrument in writing that may be necessary in the purchase, sale, lease, assignment, transfer, discount, management or handling in any way of any property of any description held, controlled or used by Bank or to be held, controlled or used by Bank, either in its own or in its fiduciary capacity and including the authority from time to time to open bank accounts with the Bank or any other institution, to borrow money in such amounts for such lengths of time, at such rates of interest and upon such terms and conditions as any said officer may deem proper and to evidence the indebtedness thereby created by executing and delivering in the name of the Bank promissory notes or other appropriate evidences of indebtedness, and to guarantee the obligations of any subsidiary or affiliate of the Bank. The enumeration herein of particular powers shall not restrict in any way the general powers and authority of said officers.
By way of example and not limitation, such officers of the Bank are authorized to execute, accept, deliver and issue, on behalf of the Bank and as binding obligations of Bank, such agreements and instruments as may be within the officer’s area of responsibility, including, as applicable, agreements and related documents (such as schedules, confirmations, transfers, assignments, acknowledgments, and other documents) relating to derivative transactions, loan or letter of credit transactions, syndications, participations, trades, purchase and sale or discount transactions, transfers and assignments, servicing and sub-servicing agreements, vendor agreements, securitizations, and transactions of whatever kind or description arising in the conduct of the Bank’s business.
The authority to execute and deliver documents, instruments, and agreements may be limited by resolution of the Board of Directors, by a committee of the Board of Directors, by the Chief Executive Officer, or by the President, by reference to subject matter, category, amount, geographical location, or any other criteria, and may be made subject to such policies, procedures, and levels of approval as may be adopted or amended from time to time.
Section 13. Voting Bank’s Securities.
Unless otherwise ordered by the Board of Directors, the Chief Executive Officer, the President, any Executive Vice President or above, the Controller, the Bank’s General Counsel, and any other officer as may be designated by the Board of Directors shall have full power and authority on behalf of the Bank to attend, and to act and to vote, and to execute a proxy or proxies empowering others to attend, and to act
Page 10 of 11
and to vote, at any meetings of security holders of any of the corporations in which the Bank may hold securities and, at such meetings, such officer shall possess and may exercise any and all rights and powers incident to the ownership of such securities which, as the owner thereof, the Bank might have possessed and exercised, if present.
Section 14. Bonds of Officers and Employees.
The Board of Directors shall from time to time designate the officers and employees who shall be required to give bond and fix the amounts thereof.
Section 15. Satisfaction of Loans.
On payment of sums lent, for which security shall have been taken either by way of mortgage or other lien on real or personal property or by the pledge of collateral, whether said loans have been made from funds of the Bank or from funds held in fiduciary capacity, any officer of the Bank shall have the power and authority to enter the fact of payment or satisfaction on the margin of the record of any such security or in any other legal manner to cancel such indebtedness and to release said security, and the Chief Executive Officer or the President or any Regional or Local President or any Vice President of the Bank shall have power and authority to execute a power of attorney authorizing the cancellation, release or satisfaction of any mortgage or other security given to the Bank in its corporate or fiduciary capacity, by such person as he or she may in his or her discretion appoint.
Section 16. Emergencies.
In the event of an emergency declared by the President of the United States or the person performing his or her functions, the officers and employees of this Bank will continue to conduct the affairs of the Bank under such guidance from the Directors as may be available except as to matters which by statute require specific approval of the Board of Directors and subject to conformance with any governmental directives or directives of the Federal Deposit Insurance Corporation during the emergency.
ARTICLE VI. AMENDMENTS
Except as otherwise provided herein or in the articles of incorporation of the Bank, these By-Laws may be amended or repealed by the affirmative vote of a majority of the Directors then holding office at any regular or special meeting of the Board of Directors, and the Stockholders may make, alter or repeal any By-Laws, whether or not adopted by them.
Page 11 of 11
Exhibit 6 to Form T-1
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, Regions Bank hereby consents that reports of examination of Regions Bank by Federal, State, Territorial or District regulatory authorities may be furnished by such regulatory authorities to the Securities and Exchange Commission upon request therefor.
Dated: May 6, 2015
| REGIONS BANK | ||
| By: | /s/ Paul Williams | |
| Paul Williams | ||
| Vice President | ||
Exhibit 7 to Form T-1
Regions Bank Legal Title of Bank Birmingham City AL 35203 State Zip Code FDIC Certificate Number: 12368 Printed on 4/30/2015 at 6:14 PM—Submitted to CDR on 4/30/2015 at 6:13 PM Consolidated Report of Condition for Insured Banks and Savings Associations for March 31, 2015 All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter. Schedule RC—Balance Sheet Assets 1. Cash and balances due from depository Institutions (from Schedule RC-A): a, Noninterest-bearing balances and currency and coin (1) b. Interest-bearing balances (2) 2. Securities: a. Held-to-maturity securities (from Schedule RC-B, column A) b. Available-for-sale securities (from Schedule RC-B, column D) 3. Federal funds sold and securities purchased under agreements to resell: a. Federal funds sold in domestic offices Dollar Amounts in Thousands RCFD dl l 811 l Mil ‘thou 0081 1,744,092 0071 4,222,958 1754 2,126,864 1773 22,312,842 RCON jaMMI 8987 0 b. Securities purchased under agreements to resell (3) 4. Loans and lease financing receivables (from Schedule RC-C): a. Loans and leases held for sale b. Loans and leases, net of unearned income c. LESS: Allowance for loan and lease losses d. Loans and leases, net of unearned income and allowance (item 4.b minus 4.c) 5. Trading assets (from Schedule RC-D) 6. Premises and fixed assets (including capitalized leases) 7. Other real estate owned (from Schedule RC-M) 8. Investments in unconsolidated subsidiaries and associated companies 9. Direct and indirect investments in real estate ventures 10. Intangible assets: a. Goodwill b. Other Intangible assets (from Schedule RC-M) 11. Other assets (from Schedule RC-F) 12. Total assets (sum of items 1 through 11) 8528 3123 78.242,30 1,097,69 RCFD 6989 65,000 B529 77,144,619 3545 424,035 2145 2,024,137 2150 136,355 2130 3656 3163 4,242,336 0426 486,200 2160 6,014,603 2170 121,434,925 (1) Indudes cash items in process of collection and unposted debits. (2) Indudes time certificates of deposit not held for trading. (3) Indudes all securities resale agreements in domestic and foreign offices, regardless of maturity. FFIEC 031 Page 16 of 84 RC-1 1.a 1.b 2.a 2.b 3,a 3.b 4.a 4.b 4.c 4.d 5 6 7 89 10.a 10.b 11 12
Regions Bank Legal Title of Bank FDIC Certificate Number: 12368 Printed on 4/30/2015 at 6:14 PM—Submitted to CDR on 4/30/2015 at 6:13 PM Schedule RC—Continued Dollar Amounts in Thousands Liabilities 13. Deposits: a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) (1) Noninterest-bearing (4) (2) Interest-bearing b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, part II) (1) Noninterest-bearing (2) Interest-bearing 14. Federal funds purchased and securities sold under agreements to repurchase: a. Federal funds purchased in domestic offices (5) 6631 6636 663 6636 33,699,80 65,297,50 237.50 b. Securities sold under agreements to repurchase (6) i95S 2,094,50: 15. Trading liabilities (from Schedule R-C D)3549 149,0 5 16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases) (from Schedule RC-M) 17. and 18. Not applicable (4) Includes noninterest-bearing demand, time, and savings deposits. (5) Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, “Other borrowed money.” (6) Includes all securities repurchase agreements in domestic and foreign offices, regardless of maturity. FFIEC 031 Page 16a of 84 RC-la 13.a 13.a.1 13.a,2 13.b 13.b.1 13.b.2 14.a 14.b 15 16
Regions Bank Legal Title of Bank FDIC Certificate Number: 12368 Printed on 4/30/2015 at 6:14 PM—Submitted to CDR on 4/30/2015 at 6:13 PM Schedule RC—Continued Dollar Amounts in Thousands RCFD hril I RH 1 Mill Thou Liabilities—Continued 19. Subordinated notes and debentures (1) 20. Other liabilities (from Schedule RC-G) 2L Total liabilities (sum of Items 13 through 20) 22. Not applicable Equity Capital Bank Equity Captal 23. Perpetual preferred stock and related surplus 24. Common stock 25. Surplus (excludes all surplus related to preferred stock) 26. a. Retained earnings b. Accumulated other comprehensive income (2) c. Other equity capital components (3) 27. a. Total bank equity capital (sum of items 23 through 26.c) b. Noncontrolling (minority) Interests in consolidated subsidiaries 28. Total equity capital (sum of items 27.a and 27.b) 29. Total liabilities and equity capital (sum of items 21 and 28) Memoranda To be reported with the March Report of Condition. 1, Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing work performed for the bank by Independent external auditors as of any date during 2014 1= Independent audit of the bank conducted In accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the bank 2 = Independent audit of the bank’s parent holding company conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the consolidated holding company (but not on the bank separately) 3 = Attestation on bank managements assertion on the effectiveness of the bank’s internal control over financial reporting by a certified public accounting firm. To be reported with the March Report of Condition. 2, Bank’s fiscal year-end date 3200 1,497,691 2930 2,074,681 2948 3838 105 191,408 0 3230 103 3839 16,726,608 3632 -367,730 B530 -115,464 A130 3210 16,243,517 3000 C G105 16,243,517 3300 121,434,926 RCFD Number 6724 2 4 = Directors’ examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state chartering authority) 5 = Directors’ examination of the bank performed by other external auditors (may be required by state chartering authority) 6 = Review of the bank’s financial statements by external auditors 7 = Compilation of the bank’s financial statements by external auditors 8 = Other audit procedures (excluding tax preparation work) 9 = No extemal audit work RCON MMDD 8678 1231 FFIEC 031 Page 17 of 84 RC-2 19 20 21 23 24 25 26.a 26.b 26.c 27.a 27.b 28 29 M.1 M.2 (1) Includes limited-life preferred stock and related surplus. (2) Includes, but is not limited to, net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, cumulative foreign currency translation adjustments, and accumulated defined benefit pension and other postretirement plan adjustments. (3) Includes treasury stock and unearned Employee Stock Ownership Plan shares.
EXHIBIT 25.4
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ¨ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
REGIONS BANK
(Exact name of trustee as specified in its charter)
| An Alabama Banking Corporation | 63-0371391 | |
| (Jurisdiction of incorporation) | (I.R.S. Employer Identification No.) |
Regions Bank
Corporate Trust Department
1901 6th Avenue North, 28th Floor
Birmingham, Alabama 35203
(Address of principal executive offices)
Paul Williams
Vice President
Regions Bank, Corporate Trust Services
150 Fourth Avenue North, Suite 900
Nashville, Tennessee 37219
(615)770-4358
(Name, address and telephone number of agent for service)
CHS/Community Health Systems, Inc.
(Exact name of obligor as specified in its charter)
| Delaware | 76-0137985 | |
| (Jurisdiction of incorporation) | (I.R.S. Employer Identification No.) |
4000 Meridian Boulevard
Franklin, Tennessee 37067
(615) 465-7000
(Address of principal executive offices)
Subordinated Debt Securities
(Title of the indenture securities)
Additional Obligors
| Exact Name of Additional Obligors |
Jurisdiction or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Community Health Systems, Inc. | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 13-3893191 | ||||
| Abilene Hospital, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 46-0496920 | ||||
| Abilene Merger, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 46-0496918 | ||||
| Affinity Health Systems, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 20-3391769 | ||||
| Affinity Hospital, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 20-3391873 | ||||
| Amory HMA, LLC | MS | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 20-3750001 | ||||
| Anna Hospital Corporation | IL | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 36-4431843 | ||||
| Anniston HMA, LLC | AL | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 72-1346819 | ||||
| Bartow HMA, LLC | FL | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 20-1888382 | ||||
| Berwick Hospital Company, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 23-2975836 | ||||
| Big Bend Hospital Corporation | TX | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 75-2717545 | ||||
| Big Spring Hospital Corporation | TX | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 75-2574581 | ||||
| Biloxi H.M.A., LLC | MS | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 59-2754033 | ||||
| Birmingham Holdings II, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 26-2784086 | ||||
| Birmingham Holdings, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 20-3320362 | ||||
| Blackwell HMA, LLC | OK | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 36-4720244 | ||||
| Blue Island Hospital Company, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 45-4082512 | ||||
| Blue Island Illinois Holdings, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 61-1667279 | ||||
| Bluefield Holdings, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 27-2372042 | ||||
| Bluefield Hospital Company, LLC | DE | 4000 Meridian Boulevard Franklin, Tennessee 37067 |
8062 | 27-2372291 | ||||
| Bluffton Health System LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1792272 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Brandon HMA, LLC | MS | 4000 Meridian Boulevard | 8062 | 64-0885458 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Brevard HMA Holdings, LLC | FL | 4000 Meridian Boulevard | 8062 | 27-3137706 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Brevard HMA Hospitals, LLC | FL | 4000 Meridian Boulevard | 8062 | 27-3141947 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Brownwood Hospital, L.P. | DE | 4000 Meridian Boulevard | 8062 | 62-1762521 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Brownwood Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762523 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Bullhead City Hospital Corporation | AZ | 4000 Meridian Boulevard | 8062 | 86-0982071 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Bullhead City Hospital Investment Corporation | DE | 4000 Meridian Boulevard | 8062 | 20-1577204 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Campbell County HMA, LLC | TN | 4000 Meridian Boulevard | 8062 | 45-2528273 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Carlisle HMA, LLC | PA | 4000 Meridian Boulevard | 8062 | 25-1887146 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Carlsbad Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762526 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Carolinas JV Holdings General, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-2227746 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Carolinas JV Holdings, L.P. | DE | 4000 Meridian Boulevard | 8062 | 26-2227809 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Central Florida HMA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964329 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Central States HMA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964397 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Centre Hospital Corporation | AL | 4000 Meridian Boulevard | 8062 | 20-4370931 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Chester HMA, LLC | SC | 4000 Meridian Boulevard | 8062 | 20-1231400 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CHHS Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-2189938 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CHS Kentucky Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1639057 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CHS Pennsylvania Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1639170 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CHS Virginia Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1639119 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CHS Washington Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3272205 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Citrus HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 20-0195256 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Clarksdale HMA, LLC | MS | 4000 Meridian Boulevard | 8062 | 64-0869163 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Clarksville Holdings II, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-5498575 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Clarksville Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-3320418 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Cleveland Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 62-1587878 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Cleveland Tennessee Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1281627 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Clinton HMA, LLC | OK | 4000 Meridian Boulevard | 8062 | 37-1659366 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Clinton Hospital Corporation | PA | 4000 Meridian Boulevard | 8062 | 90-0003715 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Coatesville Hospital Corporation | PA | 4000 Meridian Boulevard | 8062 | 23-3069798 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Cocke County HMA, LLC | TN | 4000 Meridian Boulevard | 8062 | 45-2528314 | ||||
| Franklin, Tennessee 37067 | ||||||||
| College Station Hospital, L.P. | DE | 4000 Meridian Boulevard | 8062 | 62-1762360 | ||||
| Franklin, Tennessee 37067 | ||||||||
| College Station Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762359 | ||||
| Franklin, Tennessee 37067 | ||||||||
| College Station Merger, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1771861 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Community GP Corp. | DE | 4000 Meridian Boulevard | 8062 | 62-1648466 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Community Health Investment Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 76-0152801 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Community LP Corp. | DE | 4000 Meridian Boulevard | 8062 | 62-1648206 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CP Hospital GP, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-3904557 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CPLP, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-3904614 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Crestwood Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769644 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Crestwood Hospital LP, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762369 | ||||
| Franklin, Tennessee 37067 | ||||||||
| CSMC, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762362 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| CSRA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-5111915 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Deaconess Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 47-0890490 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Deaconess Hospital Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-2401268 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Deming Hospital Corporation | NM | 4000 Meridian Boulevard | 8062 | 85-0438008 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Desert Hospital Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-8111921 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Detar Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1754943 | ||||
| Franklin, Tennessee 37067 | ||||||||
| DHFW Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-2817294 | ||||
| Franklin, Tennessee 37067 | ||||||||
| DHSC, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-2871473 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Dukes Health System, LLC | DE | 4000 Meridian Boulevard | 8062 | 52-2379885 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Dyersburg Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 42-1557536 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Emporia Hospital Corporation | VA | 4000 Meridian Boulevard | 8062 | 54-1924866 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Evanston Hospital Corporation | WY | 4000 Meridian Boulevard | 8062 | 83-0327475 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Fallbrook Hospital Corporation | DE | 4000 Meridian Boulevard | 8062 | 91-1918215 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Florida HMA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964255 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Foley Hospital Corporation | AL | 4000 Meridian Boulevard | 8062 | 62-1811413 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Forrest City Arkansas Hospital Company, LLC | AR | 4000 Meridian Boulevard | 8062 | 20-4217095 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Forrest City Hospital Corporation | AR | 4000 Meridian Boulevard | 8062 | 20-4216978 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Fort Payne Hospital Corporation | AL | 4000 Meridian Boulevard | 8062 | 20-4370870 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Fort Smith HMA, LLC | AR | 4000 Meridian Boulevard | 8062 | 27-1013889 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Frankfort Health Partner, Inc. | IN | 4000 Meridian Boulevard | 8062 | 35-2009540 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Franklin Hospital Corporation | VA | 4000 Meridian Boulevard | 8062 | 52-2200240 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Gadsden Regional Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 63-1102774 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Galesburg Hospital Corporation | IL | 4000 Meridian Boulevard | 8062 | 37-1485782 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Granbury Hospital Corporation | TX | 4000 Meridian Boulevard | 8062 | 75-2682017 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Granite City Hospital Corporation | IL | 4000 Meridian Boulevard | 8062 | 36-4460625 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Granite City Illinois Hospital Company, LLC | IL | 4000 Meridian Boulevard | 8062 | 36-4460628 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Greenville Hospital Corporation | AL | 4000 Meridian Boulevard | 8062 | 63-1134649 | ||||
| Franklin, Tennessee 37067 | ||||||||
| GRMC Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-8112090 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hallmark Healthcare Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 63-0817574 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hamlet H.M.A., LLC | NC | 4000 Meridian Boulevard | 8062 | 58-1741827 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Health Management Associates, Inc. | DE | 4000 Meridian Boulevard | 8062 | 61-0963645 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Health Management Associates, LP | DE | 4000 Meridian Boulevard | 8062 | 27-1601497 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Health Management General Partner I, LLC | DE | 4000 Meridian Boulevard | 8062 | 46-1721316 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Health Management General Partner, LLC | DE | 4000 Meridian Boulevard | 8062 | 46-1690736 | ||||
| Franklin, Tennessee 37067 | ||||||||
| HMA Fentress County General Hospital, LLC | TN | 4000 Meridian Boulevard | 8062 | 95-3974754 | ||||
| Franklin, Tennessee 37067 | ||||||||
| HMA Hospitals Holdings, LP | DE | 4000 Meridian Boulevard | 8062 | 26-3964154 | ||||
| Franklin, Tennessee 37067 | ||||||||
| HMA Santa Rosa Medical Center, LLC | FL | 4000 Meridian Boulevard | 8062 | 68-0045270 | ||||
| Franklin, Tennessee 37067 | ||||||||
| HMA Services GP, LLC | DE | 4000 Meridian Boulevard | 8062 | 46-1707507 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hobbs Medco, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769641 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hospital Management Associates, LLC | FL | 4000 Meridian Boulevard | 8062 | 35-1410796 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hospital Management Services of Florida, LP | FL | 4000 Meridian Boulevard | 8062 | 20-5917647 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hospital of Barstow, Inc. | DE | 4000 Meridian Boulevard | 8062 | 76-0385534 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Hospital of Fulton, Inc. | KY | 4000 Meridian Boulevard | 8062 | 61-1218106 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hospital of Louisa, Inc. | KY | 4000 Meridian Boulevard | 8062 | 61-1238190 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Hospital of Morristown, Inc. | TN | 4000 Meridian Boulevard | 8062 | 62-1528689 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Jackson HMA, LLC | MS | 4000 Meridian Boulevard | 8062 | 64-0907122 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Jackson Hospital Corporation (KY) | KY | 4000 Meridian Boulevard | 8062 | 61-1285331 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Jackson Hospital Corporation (TN) | TN | 4000 Meridian Boulevard | 8062 | 42-1557525 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Jefferson County HMA, LLC | TN | 4000 Meridian Boulevard | 8062 | L 45-2528414 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Jourdanton Hospital Corporation | TX | 4000 Meridian Boulevard | 8062 | 74-3011840 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Kay County Hospital Corporation | OK | 4000 Meridian Boulevard | 8062 | 20-4052833 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Kay County Oklahoma Hospital Company, LLC | OK | 4000 Meridian Boulevard | 8062 | 20-4052936 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Kennett HMA, LLC | MO | 4000 Meridian Boulevard | 8062 | 20-0248087 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Key West HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 65-0905661 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Kirksville Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 36-4373298 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Knoxville HMA Holdings, LLC | TN | 4000 Meridian Boulevard | 8062 | 45-2528116 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lakeway Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 62-1564360 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lancaster Hospital Corporation | DE | 4000 Meridian Boulevard | 8062 | 57-1010381 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Las Cruces Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 75-2905434 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lea Regional Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1760149 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lehigh HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 65-1144586 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lexington Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 42-1557533 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Longview Clinic Operations Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 75-1470252 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Longview Medical Center, L.P. | DE | 4000 Meridian Boulevard | 8062 | 62-1762420 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Longview Merger, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769639 | ||||
| Franklin, Tennessee 37067 | ||||||||
| LRH, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762421 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Lutheran Health Network of Indiana, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762363 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Madison HMA, LLC | MS | 4000 Meridian Boulevard | 8062 | 03-0400182 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Marion Hospital Corporation | IL | 4000 Meridian Boulevard | 8062 | 37-1359605 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Marshall County HMA, LLC | OK | 4000 Meridian Boulevard | 8062 | 38-3862800 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Martin Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 42-1557527 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Massillon Community Health System LLC | DE | 4000 Meridian Boulevard | 8062 | 55-0799029 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Massillon Health System LLC | DE | 4000 Meridian Boulevard | 8062 | 34-1840860 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Massillon Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-0201156 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Mayes County HMA, LLC | OK | 4000 Meridian Boulevard | 8062 | 61-1670947 | ||||
| Franklin, Tennessee 37067 | ||||||||
| McKenzie Tennessee Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 42-1557531 | ||||
| Franklin, Tennessee 37067 | ||||||||
| McNairy Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 42-1557530 | ||||
| Franklin, Tennessee 37067 | ||||||||
| MCSA,L.L.C. | AR | 4000 Meridian Boulevard | 8062 | 71-0785071 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Medical Center of Brownwood, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762425 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Melbourne HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 27-3142044 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Merger Legacy Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-1344746 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Mesquite HMA General, LLC | DE | 4000 Meridian Boulevard | 8062 | 41-2035879 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Metro Knoxville HMA, LLC | TN | 4000 Meridian Boulevard | 8062 | 45-2535623 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Mississippi HMA Holdings I, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964464 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Mississippi HMA Holdings II, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964541 | ||||
| Franklin, Tennessee 37067 | ||||||||
| MMC of Nevada, LLC | DE | 4000 Meridian Boulevard | 8062 | 42-1543617 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Moberly Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 43-1651906 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Monroe HMA, LLC | GA | 4000 Meridian Boulevard | 8062 | 20-0141568 | ||||
| Franklin, Tennessee 37067 | ||||||||
| MWMC Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-8007512 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Naples HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 20-4401957 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Natchez Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 37-1756496 | ||||
| Franklin, Tennessee 37067 | ||||||||
| National Healthcare of Leesville, Inc. | DE | 4000 Meridian Boulevard | 8062 | 95-4066162 | ||||
| Franklin, Tennessee 37067 | ||||||||
| National Healthcare of Mt. Vernon, Inc. | DE | 4000 Meridian Boulevard | 8062 | 58-1622971 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Navarro Hospital, L.P. | DE | 4000 Meridian Boulevard | 8062 | 62-1762428 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Navarro Regional, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762429 | ||||
| Franklin, Tennessee 37067 | ||||||||
| NC-DSH, LLC | NV | 4000 Meridian Boulevard | 8062 | 88-0305790 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Northampton Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 52-2325498 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Northwest Arkansas Hospitals, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-5896848 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Northwest Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762430 | ||||
| Franklin, Tennessee 37067 | ||||||||
| NOV Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-8112009 | ||||
| Franklin, Tennessee 37067 | ||||||||
| NRH, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762431 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Oak Hill Hospital Corporation | WV | 4000 Meridian Boulevard | 8062 | 27-0003893 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Oro Valley Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 52-2379881 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Palmer-Wasilla Health System, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762371 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Payson Hospital Corporation | AZ | 4000 Meridian Boulevard | 8062 | 86-0874009 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of or Formation |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Pennsylvania Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 06-1694707 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Phillips Hospital Corporation | AR | 4000 Meridian Boulevard | 8062 | 75-2976342 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Phoenixville Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-1055060 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Poplar Bluff Regional Medical Center, LLC | MO | 4000 Meridian Boulevard | 8062 | 43-1238701 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Port Charlotte HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 20-1852902 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Pottstown Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 06-1694708 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Punta Gorda HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 65-0526360 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG Georgia Holdings II, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-1344786 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG Georgia Holdings, Inc. | GA | 4000 Meridian Boulevard | 8062 | 58-2386459 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG Georgia, LP | GA | 4000 Meridian Boulevard | 8062 | 58-2387537 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Bluffton Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1792274 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Clinton County, Inc. | IN | 4000 Meridian Boulevard | 8062 | 35-2006952 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Enterprise, Inc. | AL | 4000 Meridian Boulevard | 8062 | 63-1159023 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Forrest County, Inc. | MS | 4000 Meridian Boulevard | 8062 | 62-1704095 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Fort Wayne Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 35-1946949 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Hattiesburg, Inc. | MS | 4000 Meridian Boulevard | 8062 | 62-1704097 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Massillon, Inc. | OH | 4000 Meridian Boulevard | 8062 | 31-1472380 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of South Carolina, Inc. | SC | 4000 Meridian Boulevard | 8062 | 62-1587267 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Spartanburg, Inc. | SC | 4000 Meridian Boulevard | 8062 | 57-1040117 | ||||
| Franklin, Tennessee 37067 | ||||||||
| QHG of Springdale, Inc. | AR | 4000 Meridian Boulevard | 8062 | 62-1755664 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Quorum Health Resources, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1742954 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Red Bud Hospital Corporation | IL | 4000 Meridian Boulevard | 8062 | 36-4444121 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Red Bud Illinois Hospital Company, LLC | IL | 4000 Meridian Boulevard | 8062 | 36-4443919 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Regional Hospital of Longview, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762464 | ||||
| Franklin, Tennessee 37067 | ||||||||
| River Oaks Hospital, LLC | MS | 4000 Meridian Boulevard | 8062 | 64-0626874 | ||||
| Franklin, Tennessee 37067 | ||||||||
| River Region Medical Corporation | MS | 4000 Meridian Boulevard | 8062 | 62-1576702 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Rockledge HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 27-3142075 | ||||
| Franklin, Tennessee 37067 | ||||||||
| ROH, LLC | MS | 4000 Meridian Boulevard | 8062 | 64-0780035 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Roswell Hospital Corporation | NM | 4000 Meridian Boulevard | 8062 | 74-2870118 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Ruston Hospital Corporation | DE | 4000 Meridian Boulevard | 8062 | 20-8066937 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Ruston Louisiana Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-8066999 | ||||
| Franklin, Tennessee 37067 | ||||||||
| SACMC, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762472 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Salem Hospital Corporation | NJ | 4000 Meridian Boulevard | 8062 | 22-3838322 | ||||
| Franklin, Tennessee 37067 | ||||||||
| San Angelo Community Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762473 | ||||
| Franklin, Tennessee 37067 | ||||||||
| San Angelo Medical, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769697 | ||||
| Franklin, Tennessee 37067 | ||||||||
| San Miguel Hospital Corporation | NM | 4000 Meridian Boulevard | 8062 | 74-2930034 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Scranton Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-4577223 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Scranton Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-4564798 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Scranton Quincy Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-2671991 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Scranton Quincy Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-2672023 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Sebastian Hospital, LLC | FL | 4000 Meridian Boulevard | 8062 | 65-0425888 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Sebring Hospital Management Associates, LLC | FL | 4000 Meridian Boulevard | 8062 | 59-2546390 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Seminole HMA, LLC | OK | 4000 Meridian Boulevard | 8062 | 45-4164241 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Sharon Pennsylvania Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 46-4257540 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Sharon Pennsylvania Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 38-3920098 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Shelbyville Hospital Corporation | TN | 4000 Meridian Boulevard | 8062 | 20-2909388 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Siloam Springs Arkansas Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3635210 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Siloam Springs Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3635188 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Southeast HMA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964613 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Southern Texas Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769737 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Southwest Florida HMA Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3964696 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Spokane Valley Washington Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1315140 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Spokane Washington Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1315081 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Statesville HMA, LLC | NC | 4000 Meridian Boulevard | 8062 | 56-2206788 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tennessee HMA Holdings, LP | DE | 4000 Meridian Boulevard | 8062 | 46-1750499 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tennyson Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-3943816 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tomball Texas Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-2784214 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tomball Texas Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-2856063 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tooele Hospital Corporation | UT | 4000 Meridian Boulevard | 8062 | 87-0619248 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad Healthcare Corporation | DE | 4000 Meridian Boulevard | 8062 | 75-2816101 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad Holdings III, LLC | DE | 4000 Meridian Boulevard | 8062 | 75-2821745 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad Holdings IV, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1766957 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad Holdings V, LLC | DE | 4000 Meridian Boulevard | 8062 | 51-0327978 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Triad Nevada Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-1639289 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad of Alabama, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762412 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad of Oregon, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1761990 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad-ARMC, LLC | DE | 4000 Meridian Boulevard | 8062 | 46-0496926 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad-El Dorado, Inc. | AR | 4000 Meridian Boulevard | 8062 | 62-1628508 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Triad-Navarro Regional Hospital Subsidiary, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1681610 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Tunkhannock Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-4566015 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Van Buren H.M.A., LLC | AR | 4000 Meridian Boulevard | 8062 | 58-1725652 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Venice HMA, LLC | FL | 4000 Meridian Boulevard | 8062 | 20-1852812 | ||||
| Franklin, Tennessee 37067 | ||||||||
| VHC Medical, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1769671 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Vicksburg Healthcare, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1752111 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Victoria Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1760818 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Victoria of Texas, L.P. | DE | 4000 Meridian Boulevard | 8062 | 62-1754940 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Virginia Hospital Company, LLC | VA | 4000 Meridian Boulevard | 8062 | 02-0691406 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Warren Ohio Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-3190619 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Warren Ohio Rehab Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-3190578 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Watsonville Hospital Corporation | DE | 4000 Meridian Boulevard | 8062 | 91-1894113 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Waukegan Hospital Corporation | IL | 4000 Meridian Boulevard | 8062 | 20-3978400 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Waukegan Illinois Hospital Company, LLC | IL | 4000 Meridian Boulevard | 8062 | 20-3978521 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Weatherford Hospital Corporation | TX | 4000 Meridian Boulevard | 8062 | 20-5694260 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Weatherford Texas Hospital Company, LLC | TX | 4000 Meridian Boulevard | 8062 | 20-5694301 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Exact Name of Additional Obligors |
Jurisdiction of |
Principal Executive Offices |
Primary Standard Industrial Classification Code Number |
I.R.S. Employer Identification No. | ||||
| Webb Hospital Corporation | DE | 4000 Meridian Boulevard | 8062 | 20-0167530 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Webb Hospital Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 20-0167590 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Wesley Health System LLC | DE | 4000 Meridian Boulevard | 8062 | 52-2050792 | ||||
| Franklin, Tennessee 37067 | ||||||||
| West Grove Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 25-1892279 | ||||
| Franklin, Tennessee 37067 | ||||||||
| WHMC, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762551 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Wilkes-Barre Behavioral Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3632720 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Wilkes-Barre Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3632542 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Wilkes-Barre Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 26-3632648 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Williamston Hospital Corporation | NC | 4000 Meridian Boulevard | 8062 | 62-1749107 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Winder HMA, LLC | GA | 4000 Meridian Boulevard | 8062 | 20-3749930 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Women & Children’s Hospital, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762556 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Woodland Heights Medical Center, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762558 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Woodward Health System, LLC | DE | 4000 Meridian Boulevard | 8062 | 62-1762418 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Yakima HMA, LLC | WA | 4000 Meridian Boulevard | 8062 | 45-0506909 | ||||
| Franklin, Tennessee 37067 | ||||||||
| York Pennsylvania Holdings, LLC | DE | 4000 Meridian Boulevard | 8062 | 32-0360922 | ||||
| Franklin, Tennessee 37067 | ||||||||
| York Pennsylvania Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 45-4082660 | ||||
| Franklin, Tennessee 37067 | ||||||||
| Youngstown Ohio Hospital Company, LLC | DE | 4000 Meridian Boulevard | 8062 | 27-3074094 | ||||
| Franklin, Tennessee 37067 | ||||||||
Item 1. General Information. Furnish the following information as to the trustee:
| (a) | Name and address of each examining or supervising authority to which it is subject. |
Federal Reserve Bank of Atlanta, 1000 Peachtree Street NE, Atlanta, Georgia 30309-4470
Alabama State Banking Department, P.O. Box 4600, Montgomery, Alabama 36103-4600
| (b) | Whether it is authorized to exercise corporate trust powers. |
The Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
No responses are included for Items 3-15 of this Form T-1 because to the best of the Trustee’s knowledge, the obligor is not in default as provided under Item 13.
Item 16. List of Exhibits.
| Exhibit 1. | Articles of Incorporation of the Trustee, attached as Exhibit 1. | |
| Exhibit 2. | Not applicable. | |
| Exhibit 3. | Authorization of the Trustee to exercise corporate trust powers (incorporated by reference to Exhibit 3 to Form T-1, Registration No. 22-21909). | |
| Exhibit 4. | Bylaws of the Trustee, attached as Exhibit 4 | |
| Exhibit 5. | Not applicable. | |
| Exhibit 6. | The consent of the Trustee required by Section 321(b)of the Act, attached as Exhibit 6. | |
| Exhibit 7. | A copy of the latest report of condition of the Trustee published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. | |
| Exhibit 8. | Not applicable. | |
| Exhibit 9. | Not applicable. | |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Regions Bank, an Alabama banking corporation, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Nashville and State of Tennessee on the 6th day of May, 2015.
| REGIONS BANK | ||
| By: | /s/ Paul Williams | |
| Name: Paul Williams | ||
| Title: Vice President | ||
Exhibit 1 to Form T-1
ARTICLES OF INCORPORATION OF THE TRUSTEE
This instrument prepared by:
Charles C. Pinckney
Adams and Reese LLP
1901 6th Avenue North, Suite 3000
Birmingham, Alabama 35203
ARTICLES OF AMENDMENT TO
ARTICLES OF INCORPORATION
OF
REGIONS BANK
REGIONS BANK, a corporation organized and existing under the laws of the State of Alabama, hereby certifies as follows:
1.) The name of the corporation is Regions Bank.
2.) This restatement of the Articles of Incorporation restates and integrates the amendments to the Articles of Incorporation as previously filed and further amends the Articles of Incorporation by amending Article 6 of the Articles of Incorporation as previously filed.
3.) The text of the Restated Articles of Incorporation reads as herein set forth in full:
Page 1 of 6
RESTATED ARTICLES OF INCORPORATION
OF
REGIONS BANK
1. The name of this corporation shall be Regions Bank.
2. The principal place of business shall be 1900 Fifth Avenue North, Birmingham, Alabama. The general business of Regions Bank (the “Bank”) shall be conducted at its main office and its branches and other facilities.
3. The Bank shall have the following objects, purposes and powers:
a. To sue and be sued, complain and defend, in its corporate name.
b. To have a corporate seal which may be altered at pleasure, and to use the same by causing it, or a facsimile thereof, to be impressed or affixed or in any other manner reproduced.
c. To purchase, take, receive, lease, or otherwise acquire, own, hold, improve, use and otherwise deal in and with, real or personal property, or any interest therein, wherever situated.
d. To sell, convey, mortgage, pledge, lease, exchange, transfer and otherwise dispose of all or any part of its property and assets, subject to the limitations hereinafter prescribed.
e. To lend money and use its credit to assist its employees.
f. To purchase, take, receive, subscribe for, or otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge, or otherwise dispose of, and otherwise use and deal in and with, shares or other interests in, or obligations of, other domestic or foreign corporations, associations, partnerships or individuals, or direct or indirect obligations of the United States or of any other government, state, territory, governmental district, or municipality or of any instrumentality thereof as may be permitted by law or appropriate regulations.
g. To make contracts, guarantees, and indemnity agreements and incur liabilities, borrow money at such rates of interest as the corporation may determine, issue its notes, bonds, and other obligations, and secure any of its obligations by mortgage, pledge of, or creation of security interests in, all or any of its property, franchises, or income, or any interest therein, not inconsistent with the provisions of the Constitution of Alabama as the same may be amended from time to time.
h. To lend money for its corporate purposes, invest and reinvest its funds, and take and hold real and personal property as security for the payment of funds so loaned or invested.
Page 2 of 6
i. To conduct its business, carry on its operations and have offices and exercise the powers granted by this Article, within or without the State of Alabama.
j. To elect or appoint and remove officers and agents of the Bank, and define their duties and fix their compensation.
k. To make and alter by its board of directors bylaws not inconsistent with its articles of incorporation or with the laws of this state for the administration and regulation of the affairs of the Bank.
1. To make donations for the public welfare or for charitable, scientific, or educational purposes.
m. To transact any lawful business which the board of directors shall find will be in aid of governmental policy.
n. To pay pensions and establish pension plans, pension trusts, profit sharing plans, stock bonus plans, stock option plans and other incentive plans for any or all of its directors, officers and employees.
o. To be a promoter, incorporator, partner, member, trustee, associate, or manager of any domestic or foreign corporation, partnership, joint venture, trust, or other enterprise.
p. To consolidate or merge, before or after the completion of its works or plants, in the manner herein provided, with any other foreign or domestic corporation or corporations engaged in the business of banking or trust companies doing a banking business subject to the limitations hereinafter prescribed.
q. To have and exercise all powers permitted by the laws of Alabama necessary or convenient to effect its purposes.
r. To discount bills, notes or other evidences of debt.
s. To receive and pay out deposits, with or without interest, pay checks, and impose charges for any services.
t. To receive on special deposit money, bullion or foreign coins or bonds or other securities.
u. To buy and sell foreign and domestic exchanges, gold and silver bullion or foreign coins, bonds, bills of exchange, notes and other negotiable paper.
v. To lend money on personal security or upon pledges of bonds, stocks or other negotiable securities.
w. To take and receive security by mortgage, security or otherwise on property, real and personal.
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x. To become trustee for any purpose and be appointed and act as executor, administrator, guardian, receiver, or fiduciary.
y. To lease real and personal property upon specific request of a customer, provided it complies with any applicable Alabama laws regulating leasing real property or improvements thereon to others.
z. To perform computer, management and travel agency services for others.
aa. To subscribe to the capital stock and become a member of the federal reserve system and comply with rules and regulations thereof.
bb. To do any business and exercise directly or through operating subsidiaries any powers incident to the business of banks.
4. The duration of the corporation shall be perpetual.
5. The Board of Directors is expressly authorized from time to time to fix the number of Directors which shall constitute the entire Board, subject to the following:
a. The number of Directors constituting the entire Board shall be fixed from time to time by vote of a majority of the entire Board, provided, however, that the number of Directors shall not be reduced so as to shorten the term of any Director at the time in office, and provided further, shall not be less than three nor more than twenty-five (25). Each Director shall be the record owner of the requisite number of shares of common stock of the Bank’s parent bank holding company fixed by the appropriate regulatory authorities.
b. Notwithstanding any other provisions of the Articles of Incorporation or the bylaws of the Bank (and notwithstanding the fact that some lesser percentage may be specified by law, these Restated Articles of Incorporation or the bylaws of the Bank), any Director or the entire Board of Directors of the Bank may be removed at any time, with or without cause by the affirmative vote of the holders of ninety percent (90%) or more of the outstanding shares of capital stock of the Bank entitled to vote generally in the election of directors (considered for this purpose as one class) cast at a meeting of the stockholders called for that purpose.
6. The aggregate number of shares of capital stock which the Bank shall have authority to issue is thirty thousand five hundred forty six (30,546) shares, which shall be common stock, par value five dollars ($5.00) per share (the “Common Stock”). The Bank shall not issue fractional shares of stock, but shall pay in cash the fair value of fractions of a share as of the time when those otherwise entitled to receive such fractions are determined.
a. Shareholders shall not have pre-emptive rights to purchase shares of any class of capital stock of the Bank. The Bank, at any time and from time to time, may authorize and issue debt obligations, whether or not subordinated, without the approval of the shareholders.
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b. Authority is hereby expressly granted to the Board of Directors from time to time to issue any authorized but unissued shares of Common Stock for such consideration and on such terms as it may determine. Every share of Common Stock of the Bank shall have one vote at any meeting of the shareholders and may be voted by the shareholders of record either in person or by proxy.
c. In the event of any liquidation, dissolution, or winding up of the Bank or upon the distribution of the assets of the Bank, the assets of the Bank remaining after satisfaction of all obligations and liabilities shall be divided and distributed among the holders of the Common Stock ratably. Neither the merger or consolidation of the Bank with another corporation nor the sale or lease of all or substantially all of the assets of the Bank shall be deemed to be a liquidation, dissolution, or winding up of the Bank or a distribution of its assets.
d. The holders of Common Stock shall have the exclusive power to vote and shall have one vote in respect of each share of such stock held by them.
7. The Chief Executive Officer, Secretary, Board of Directors, or holder(s) of at least 90% of the issued and outstanding voting stock of the Bank may call a special meeting of shareholders at any time. Unless otherwise provided by the laws of Alabama, notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be given by first-class mail, postage prepaid, mailed at least ten days prior to the date of such meeting to each shareholder of record at his address as shown upon the stock transfer book of this Bank.
8. The Bank reserves the right to amend, alter, change or repeal any provision contained in these Restated Articles of Incorporation, in the manner now or hereafter provided by law, at any regular or special meeting of the shareholders, and all rights conferred upon officers, directors and shareholders of the Bank hereby are granted subject to this reservation.
9. The Bank shall indemnify its officers, directors, employees, and agents to the fullest extent permitted by the Constitution and laws of the State of Alabama.
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4.) This amendment to and restatement of the Articles of Incorporation was duly adopted by vote of the directors of the Bank pursuant to Section 10A-2-10.03 of the Alabama Business Corporation Law and was approved by the sole shareholder in accordance with Section 10A-2-10.03, by unanimous consent of the holder of 21,546 shares of common stock, constituting all of the shares of capital stock of the Bank outstanding, indisputably represented, and entitled to vote on the amendment. The date of adoption of the Restated Articles of Incorporation was July 17, 2014.
IN WITNESS WHEREOF, said Regions Bank has caused this certificate to be signed by Fournier J. Gale, III, its Senior Executive Vice President, General Counsel and Corporate Secretary, this 17th day of July, 2014.
| REGIONS BANK | ||
| By: | /s/ Fournier J. Gale, III | |
| Fournier J. Gale, III | ||
| Senior Executive Vice President, General | ||
| Counsel and Corporate Secretary | ||
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STATE OF ALABAMA
MONTGOMERY COUNTY
I, John D. Harrison, as Superintendent of Banks for the State of Alabama, do hereby certify that I have fully and duly examined the foregoing Articles of Amendment whereby the shareholder of Regions Bank, a banking corporation located at Birmingham, Alabama, proposes to Restate the Articles of Incorporation.
See attached Articles of Amendment which Restate the Articles of Incorporation of Regions Bank.
I do hereby certify that said Amendment of the Articles of Incorporation appear to be in substantial conformity with the requirements of law and they are hereby approved. Upon the filing of the same, together with this Certificate of Approval, with the proper agency as required by law, the Restated Articles of Incorporation of said bank shall be effective.
Given under my hand and seal of office this the 30th day of July, 2014.
| /s/ John D. Harrison | ||
| John D. Harrison | ||
| Superintendent of Banks | ||
Jefferson County
I, the Undersigned, as Judge of Probate in and for said County, in said State, hereby certify that the foregoing is a full, true and correct copy of the instrument with the filing of same as appears of record in this office in vol. 201415 page 9638 Given under my hand and official seal, this the 31st day of July, 2014.
| /s/ Alan L. King |
| Judge of Probate |
Exhibit 4 to Form T-1
BY-LAWS OF THE TRUSTEE
BY-LAWS OF
REGIONS BANK
(As amended July 18, 2013)
ARTICLE I. OFFICES
Section 1. Registered Office.
The registered office shall be established and maintained at the office of the CSC Lawyers Incorporating Service, Inc., in the City of Montgomery, in the County of Montgomery, in the State of Alabama, and said corporation shall be the registered agent of this Bank in charge thereof.
Section 2. Other Offices.
The Bank may have other offices, either within or without the State of Alabama, at such place or places as the Board of Directors may from time to time appoint or the business of the Bank may require.
Section 3. Principal Place of Business.
The principal place of business of the Bank shall be in Birmingham, Alabama.
ARTICLE II. MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting.
Annual meetings of stockholders for the election of Directors and for such other business as may be stated in the notice of the meeting, shall be held at such place, either within or without the State of Alabama, and at such time and date as the Board of Directors, by resolution, shall determine and as set forth in the notice of the meeting.
At each annual meeting, the stockholders entitled to vote shall elect Directors, and they may transact such other corporate business as may properly come before the meeting.
Section 2. Special Meetings.
Special meetings of the stockholders for any purpose or purposes, other than the election of Directors, may be called at any time by the Chairman of the Board, the Chief Executive Officer, the President, the Secretary, or by resolution of the Directors. Special meetings of stockholders may be held at such time and place, within or without the State of Alabama, as shall be stated in the notice of the meeting.
Section 3. Voting.
The vote of a majority of the votes cast by the shares entitled to vote on any matter at a meeting of stockholders at which a quorum is present shall be the act of the stockholders on that matter, except as otherwise required by law or by the articles of incorporation of the Bank.
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Section 4. Quorum.
A majority of the outstanding shares of the Bank entitled to vote, represented in person or by proxy, shall constitute a quorum at meetings of stockholders. If less than a majority of the outstanding shares are represented, a majority of the shares so represented may adjourn the meeting from time to time without further notice, but until a quorum is secured no other business may be transacted. The stockholders present at a duly organized meeting may continue to transact business until an adjournment notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
ARTICLE III. DIRECTORS
Section 1. Number and Term.
The number of Directors which shall constitute the whole Board of Directors shall be fixed, from time to time, by resolutions adopted by the Board of Directors, but shall not be less than three persons. The number of Directors shall not be reduced so as to shorten the term of any Director at the time in office.
At each annual meeting of stockholders, all Directors shall be elected for terms of one year, and except as hereinafter provided, each Director shall hold office until the next annual meeting or until his or her successor shall have been elected and qualified, or until his or her earlier retirement, death, resignation or removal. Directors need not be residents of Alabama.
Section 2. Chairman of the Board and Vice Chairman of the Board.
The Board of Directors shall by majority vote designate from time to time from among its members a Chairman of the Board. The Chairman of the Board shall preside at all meetings of the stockholders and of the Board of Directors of the Bank. He or she shall have and perform such duties as prescribed by the By-Laws and by the Board of Directors. The position of Chairman of the Board is a Board position, provided however, the position of Chairman of the Board may be held by a person who is also an officer of the Bank.
The Board of Directors may by majority vote designate from time to time from among its members one or more Vice Chairmen of the Board. A Vice Chairman of the Board shall preside at all meetings of the stockholders and of the Board of Directors of the Bank which the Chairman of the Board shall be unable to attend. He or she shall assist the Chairman of the Board in the exercise of his or her duties and shall have and perform such duties as are prescribed from time to time by the Board of Directors. In the event of the death or incapacity of the Chairman of the Board, he or she shall perform all the duties of the Chairman of the Board until the next annual meeting of the stockholders or until the Board shall have sooner elected a successor Chairman of the Board. The position of Vice Chairman of the Board is a Board position, provided however, that the position of Vice Chairman of the Board may be held by a person who is also an officer of the Bank.
In the absence of the Chairman of the Board and Vice Chairman of the Board or in case of their inability to act; the Independent Lead Director, if at the time a Director of the Bank has been designated by the Board of Directors as such, shall have and exercise all the powers and duties of such office and shall preside at all meetings of the Board of Directors. If at any Board of Directors meeting none of such persons is present or able to act, the Board of Directors shall select one of its members as acting chair of the meeting or portion thereof.
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Section 3. Resignations.
Any Director may resign at any time. Such resignation shall be made in writing, and shall take effect at the time of its receipt by the Chairman of the Board, Chief Executive Officer, the President, or the Secretary or at such other time as may be specified therein. The acceptance of a resignation shall not be necessary to make it effective.
Section 4. Vacancies.
If the office of any Director becomes vacant, the remaining Directors in office, though less than a quorum, by a majority vote, may appoint any qualified person to fill such vacancy, who shall hold office for the unexpired term and until his successor shall be duly chosen.
Section 5. Removal.
Any Director may be removed at any time, with or without cause, by the affirmative vote of the holders of a majority of the outstanding shares of capital stock of the Bank entitled to vote generally in the election of Directors considered for this purpose as one class cast at a meeting of the stockholders called for that purpose.
Section 6. Powers.
The Board of Directors shall exercise all the powers of the Bank except such as are by law, by the Articles of Incorporation of the Bank or pursuant to the Bank’s bylaws conferred upon or reserved to the stockholders.
Section 7. Meetings.
A regular meeting of the Board of Directors shall be held immediately before or after the annual meeting of stockholders. Additional regular meetings of the Directors may be held without notice at such places and times as shall be determined from time to time by resolution of the Directors.
Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, the President, or by the Secretary on the written request of a majority of the Board of Directors on at least two days’ notice to each Director and shall be held at such place or places as may be determined by the Directors, or as shall be stated in the call of the meeting.
Unless otherwise restricted by the Articles of Incorporation or these By-Laws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
Section 8. Quorum.
A majority of the Directors shall constitute a quorum for the transaction of business. If at any meeting of the Board of Directors there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at the meeting which shall be so adjourned. Notwithstanding the withdrawal of enough Directors to leave less than a quorum, the Directors present at a duly organized meeting may continue to transact business until adjournment.
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Section 9. Compensation.
Directors shall not receive any stated salary for their services as Directors or as members of committees, except that by resolution of the Board of Directors, retainer fees, meeting fees, and expenses of attendance at meetings may be authorized. Nothing herein contained shall be construed to preclude any Director from serving the Bank in any other capacity as an officer, agent or otherwise, and receiving compensation therefore.
Section 10. Action Without Meeting.
Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof, may be taken without a meeting, if prior to such action a written consent thereto is signed by all members of the Board of Directors, or of such committee as the case may be, and such written consent is filed with the minutes of proceedings of the Board of Directors or committee.
Section 11. Committees.
A majority of the whole Board of Directors shall have the authority to designate one or more committees, each committee to consist of one or more of the Directors of the Bank. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the Board or in these By-Laws, shall have and may exercise the powers of the Board of Directors in the management of the business and affairs of the Bank, and may authorize the seal of the Bank to be affixed to all papers which may require it; provided, however, that in the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not the member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.
Section 12. Eligibility.
No person shall be eligible to serve as Director of the Bank unless such person shall be the owner of shares of stock of the parent holding company of the number and held in the manner sufficient to meet the requirements of any applicable law or regulation in effect requiring the ownership of Directors’ qualifying shares.
Section 13. Directors Protected.
Each Director shall in the performance of his or her duties be fully protected in relying in good faith upon reports made to the Directors by the officers of the Bank or by state or federal bank examiners or by any independent accountant or by any appraiser selected with reasonable care, or by counsel, or by a committee of the Board, or in relying in good faith upon other records or books of account of the Bank.
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ARTICLE IV. OFFICERS
Section 1. Officers, Elections, Terms.
The officers of the Bank shall be a Chief Executive Officer; a President; one or more Regional or Local Presidents if the Board so determines; one or more Vice Presidents, who may be designated Senior Executive Vice Presidents, Executive Vice Presidents, Senior Vice Presidents, Vice Presidents, and Assistant Vice Presidents; a Secretary; one or more Assistant Secretaries; a Chief Financial Officer; a Controller; an Auditor; and such other officers as may be deemed appropriate. All of such officers shall be appointed annually by the Board of Directors to serve for a term of one year and until their respective successors are appointed and qualified or until such officer’s earlier death, resignation, retirement, or removal, except that the Board of Directors may delegate the authority to appoint officers holding the position of Senior Executive Vice President and below in accordance with procedures established or modified by the Board from time to time. Those Officers who serve in the Trust Department shall be so designated by the word “Trust” in their title. None of the officers of the Bank need be Directors. More than one office may be held by the same person.
Section 2. Chief Executive Officer.
The Board of Directors shall appoint a Chief Executive Officer of the Bank. The Chief Executive Officer is the most senior executive officer of the Bank, and shall be vested with authority to act for the Bank in all matters and shall have general supervision of the Bank and of its business affairs, including authority over the detailed operations of the Bank and over its personnel, with full power and authority during intervals between sessions of the Board to do and perform in the name of the Bank all acts and deeds necessary or proper, in his or her opinion, to be done and performed and to execute for and in the name of the Bank all instruments, agreements, and deeds which may be authorized to be executed in behalf of the Bank or which may be required by law. The Chief Executive Officer may, but need not, also hold the office of President.
Section 3. President.
The President shall, subject to the control of the Board of Directors and of any committee of the Board having authority in the premises, have, and may exercise the authority to act for the Bank in all ordinary matters and perform other such duties as directed by the By-Laws, the Board of Directors, or the Chief Executive Officer. Among the officers of the Bank, the President is subordinate to only the Chief Executive Officer and is senior to the other officers of the Bank. The authority of the President shall include authority over the detailed operations of the Bank and over its personnel with full power and authority during intervals between sessions of the Board to do and perform in the name of the Bank all acts and deeds necessary or proper, in his or her opinion, to be done and performed and to execute for and in the name of the Bank all instruments, agreements, and deeds which may be authorized to be executed in behalf of the Bank or which may be required by law.
Section 4. Vice Presidents.
The Vice Presidents shall, subject to the control of the Board of Directors, the Chief Executive Officer or the President, have and may exercise the authority vested in them in all proper matters, including authority over the detailed operations of the Bank and over its personnel.
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Section 5. Chief Financial Officer.
The Chief Financial Officer or his designee shall have custody of all funds of the Bank. He or his designee shall have and perform such duties as are incident to the office of Chief Financial Officer and such other duties as may from time to time be assigned to him by the Board of Directors, the Chief Executive Officer, or the President.
Section 6. Secretary.
The Secretary shall keep minutes of all meetings of the stockholders and the Board of Directors unless otherwise directed by those bodies. The Secretary, or in his absence, any Assistant Secretary, shall attend to the giving and serving of all notices of the Bank. He shall perform all the duties incident to the office of Secretary, subject to the control of the Board of Directors, and shall do and perform such other duties as may from time to time be assigned by the Board of Directors, the Chairman of the Board, the Chief Executive Officer, or the President.
Section 7. Controller.
The Controller shall, under the direction of the Chief Executive Officer, the President, the Chief Financial Officer, or a more senior officer, have general supervision and authority over all reports required of the Bank by law or by any public body or officer or regulatory authority pertaining to the condition of the Bank and its assets and liabilities. The Controller shall have general supervision of the books and accounts of the Bank and its methods and systems of recording and keeping accounts of its business transactions and of its assets and liabilities. The Controller shall be responsible for preparing statements showing the financial condition of the Bank and shall furnish such reports and financial records as may be required of him or her by the Board of Directors or by the Chief Executive Officer, the President, the Chief Financial Officer, or other more senior officer.
Section 8. Auditor.
The Auditor’s office may be filled by an employee of the Bank or his or her duties may be performed by an employee or committee of the parent company of the Bank. The Auditor shall have general supervision of the auditing of the books and accounts of the Bank, and shall continuously and from time to time check and verify the Bank’s transactions, its assets and liabilities, and the accounts and doings of the officers, agents and employees of the Bank with respect thereto. The Auditor whether an employee of the Bank or of its parent shall be directly accountable to and under the jurisdiction of the Board of Directors and, if applicable, its designated committee, acting independently of all officers, agents and employees of the bank. The Auditor shall render reports covering matters in his or her charge regularly and upon request to the Board and, if applicable, its designated committee.
Section 9. Other Officers and Agents.
The Board of Directors may appoint such other officers and agents as it may deem advisable, who shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors. The functions of a cashier of the Bank may be performed by the Controller or any other officer of the Bank whose area of responsibility includes the function to be performed.
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Section 10. Officer in Charge of Wealth Management.
The officer in charge of Wealth Management shall be designated as such by the Board of Directors and shall exercise general supervision and management over the affairs of Private Wealth Management, Institutional Services, and Wealth Management Operations and Support, which groups are responsible for exercise of the Bank’s trust powers. That officer is hereby empowered to appoint all necessary agents or attorneys; also to make, execute and acknowledge all checks, bonds, certificates, deeds, mortgages, notes, releases, leases, agreements, contracts, bills of sale, assignments, transfers, powers of attorney or of substitution, proxies to vote stock, or any other instrument in writing that may be necessary in the purchase, sale, mortgage, lease, assignment, transfer, management or handling, in any way of any property of any description held or controlled by the Bank in any fiduciary capacity. Said officer shall have such other duties and powers as shall be designated by the Board of Directors.
Section 11. Other Officers in Private Wealth Management, Institutional Services, and Wealth Management Operations and Support.
The officer in charge of Wealth Management shall appoint officers responsible for the activities of Private Wealth Management, Institutional Services, and Wealth Management Operations and Support. Various other officers as designated by the officers responsible for the activities of Private Wealth Management, Institutional Services, and Wealth Management Operations and Support are empowered and authorized to make, execute, and acknowledge all checks, bonds, certificates, deeds, mortgages, notes, releases, leases, agreements, contracts, bills of sale, assignments, transfers, powers of attorney or substitution, proxies to vote stock or any other instrument in writing that may be necessary to the purchase, sale, mortgage, lease, assignments, transfer, management or handling in any way, of any property of any description held or controlled by the Bank in any fiduciary capacity.
Section 12. Removal and Retirement of Officers.
At its pleasure, the Board of Directors may remove any officer from office at any time by a majority vote of the Board, provided however that the terms of any employment or compensation contract shall be honored according to its terms. An individual’s status as an officer will terminate without the necessity of any other action or ratification immediately upon termination for any reason of the individual’s employment by the Bank.
ARTICLE V. MISCELLANEOUS
Section 1. Certificates of Stock.
Certificates of stock of the Bank shall be signed by the President and the Secretary of the Bank, which signatures may be represented by a facsimile signature. The certificate may be sealed with the seal of the Bank or an engraved or printed facsimile thereof. The certificate represents the number of shares of stock registered in certificate form owned by such holder.
Section 2. Lost Certificates.
In case of the loss or destruction of any certificate of stock, the holder or owner of same shall give notice thereof to the Chief Executive Officer, the President, any Vice President, or the Secretary of the Bank and, if such holder or owner shall desire the issue of a new certificate in the place of the one lost or destroyed, he or she shall make affidavit of such loss or destruction and deliver the same to any one of said officers and accompany the same with a bond with surety satisfactory to the Bank to indemnify the
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Bank and save it harmless against any loss, cost or damage in case such certificate should thereafter be presented to the Bank, which affidavit and bond shall be, at the discretion of the deciding party listed in this Section 2, unless so ordered by a court having jurisdiction over the matter, approved or rejected by the Board of Directors or by the Chief Executive Officer or by the President or an Executive or Senior Vice President before the issue of any new certificate.
Section 3. Transfer of Shares.
Title to a certificate and to the shares represented thereby can be transferred only by delivery of the certificate endorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby, or by delivery of the certificate and a separate document containing a written assignment of the certificate or a power of attorney to sell, assign, or transfer the same or the shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby. Such assignment or power of attorney maybe either in blank or to a specified person.
Section 4. Fractional Shares.
No fractional part of a share of stock shall ever be issued by this Bank.
Section 5. Stockholders Record Date.
In order that the Bank may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
Section 6. Dividends.
Subject to the provisions of the Articles of Incorporation, the Board of Directors may, out of funds legally available therefore at any regular or special meeting, declare dividends upon the capital stock of the Bank as and when they deem expedient. Before declaring any dividend there may be set apart out of any fund of the Bank available for dividends, such sum or sums as the Directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the Directors shall deem conducive to the interests of the Bank. No dividends shall be declared which exceed the amounts authorized by applicable laws and regulations or are otherwise contrary to law.
Section 7. Seal.
The corporate seal of the Bank shall be circular in shape and shall include the words “Regions Bank” around the outer edge of the circle and the word “Seal” in the center of the circle. The seal may also include appropriate descriptors, such as the words: “An Alabama Banking Corporation”. The Secretary of the Bank shall have custody of the seal and is authorized to affix the same to instruments, documents, and papers as required by law or as customary or appropriate in the Secretary’s judgment and
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discretion. Without limiting the general authority of the Board of Directors of the Bank to name, appoint, remove, and define the duties of officers of the Bank, the Secretary is further authorized to cause reproductions of the seal to be made, distributed to, and used by officers and employees of the Bank whose duties and responsibilities involve the execution and delivery of instruments, documents, and papers bearing the seal of the Bank. In this regard, the Secretary is further authorized to establish, implement, interpret, and enforce policies and procedures governing the use of the seal and the authorization by the Secretary of officers and employees of the Bank to have custody of and to use the seal. Such policies and procedures may include (i) the right of the Secretary to appoint any Bank employee as an Assistant Secretary of the Bank, if such appointment would, in the Secretary’s judgment, be convenient with respect to such employee’s custody and use of a seal and/or (ii) the right of the Secretary to authorize Bank employees to have and use seals as delegates of the Secretary without appointing such employees as Assistant Secretaries of the Bank.
Section 8. Fiscal Year.
The fiscal year of the Bank shall be the calendar year.
Section 9. Checks, Drafts, Transfers, etc.
The Chief Executive Officer, the President, any Regional or Local President, any Vice President or Assistant Vice President, any Branch Manager or any other employee designated by the Board of Directors, is authorized and empowered on behalf of the Bank and in its name to sign and endorse checks and warrants, to draw drafts, to issue and sign cashier’s checks, to guarantee signatures, to give receipts for money due and payable to the Bank, to sell, assign and transfer shares of capital stock, bonds, or other personal property or securities standing in the name of or held by the Bank, whether in its own right or in any fiduciary capacity, and to make or join in such consents, requests or commitments with respect to the same as may be appropriate or authorized as to the holder thereof, and to sign such other papers and do such other acts as are necessary in the performance of his or her duties. The authority conveyed to any employee designated by the Board may be limited by general or specific resolution of the Board.
Section 10. Notice and Waiver of Notice.
Whenever any notice is required by these By-Laws to be given, personal notice is not meant unless expressly so stated, and any notice so required shall be deemed to be sufficient if given by depositing the same in the United States, mail, postage, prepaid, or by telegram, teletype, facsimile transmission or other form of wire, wireless, or other electronic communication or by private carrier addressed to the person entitled thereto at his address as it appears on the records of the Bank, and such notice shall be deemed to have been given on the date of such mailing. Stockholders not entitled to vote shall not be entitled to receive notice of meetings except as otherwise provided by statute.
Whenever any notice whatever is required to be given under the provisions of any law, or under the provisions of the Articles of Incorporation of the Bank or these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.
Section 11. Right of Indemnity.
To the full extent allowed by Section 10-2B-8.5 et seq. of the Code of Alabama (1975), or any statute amendatory or supplemental thereof, the Bank shall indemnify and hold harmless each director or officer now or hereafter serving the Bank against any loss and reasonable expenses actually and necessarily incurred by him or her in connection with the defense of any claim, or any action, suit or
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proceeding against him or her or in which he or she is made a party, by reason of his or her being or having been a Director or officer of the Bank, or who, while a Director or officer of the Bank, is or was serving as at the Bank’s request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise. Such right of indemnity shall not be deemed exclusive of any other rights to which such Director or officer may be entitled under any statute, article of incorporation, rule of law, other bylaw, agreement, vote of stockholders or directors, or otherwise. Nor shall anything herein contained restrict the right of the Bank to indemnify or reimburse any officer or Director in any proper case even though not specifically provided for herein. The Bank may purchase and maintain insurance in such amounts as the Board of Directors deems appropriate on behalf of said Directors or officers so as to offset any potential liability asserted against said Directors or officers acting in such capacity as described in these By-Laws.
Section 12. Execution of Instruments and Documents.
The Chief Executive Officer, or the President, or any Regional or Local President or any Vice President is authorized, in his or her discretion, to do and perform any and all corporate and official acts in carrying on the business of the Bank, including, but not limited to, the authority to make, execute, acknowledge, accept and deliver any and all deeds, mortgages, releases, bills of sale, assignments, transfers, leases (as lessor or lessee), powers of attorney or of substitution, servicing or sub-servicing agreements, vendor agreements, proxies to vote stock or any other instrument in writing that may be necessary in the purchase, sale, lease, assignment, transfer, discount, management or handling in any way of any property of any description held, controlled or used by Bank or to be held, controlled or used by Bank, either in its own or in its fiduciary capacity and including the authority from time to time to open bank accounts with the Bank or any other institution, to borrow money in such amounts for such lengths of time, at such rates of interest and upon such terms and conditions as any said officer may deem proper and to evidence the indebtedness thereby created by executing and delivering in the name of the Bank promissory notes or other appropriate evidences of indebtedness, and to guarantee the obligations of any subsidiary or affiliate of the Bank. The enumeration herein of particular powers shall not restrict in any way the general powers and authority of said officers.
By way of example and not limitation, such officers of the Bank are authorized to execute, accept, deliver and issue, on behalf of the Bank and as binding obligations of Bank, such agreements and instruments as may be within the officer’s area of responsibility, including, as applicable, agreements and related documents (such as schedules, confirmations, transfers, assignments, acknowledgments, and other documents) relating to derivative transactions, loan or letter of credit transactions, syndications, participations, trades, purchase and sale or discount transactions, transfers and assignments, servicing and sub-servicing agreements, vendor agreements, securitizations, and transactions of whatever kind or description arising in the conduct of the Bank’s business.
The authority to execute and deliver documents, instruments, and agreements may be limited by resolution of the Board of Directors, by a committee of the Board of Directors, by the Chief Executive Officer, or by the President, by reference to subject matter, category, amount, geographical location, or any other criteria, and may be made subject to such policies, procedures, and levels of approval as may be adopted or amended from time to time.
Section 13. Voting Bank’s Securities.
Unless otherwise ordered by the Board of Directors, the Chief Executive Officer, the President, any Executive Vice President or above, the Controller, the Bank’s General Counsel, and any other officer as may be designated by the Board of Directors shall have full power and authority on behalf of the Bank to attend, and to act and to vote, and to execute a proxy or proxies empowering others to attend, and to act
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and to vote, at any meetings of security holders of any of the corporations in which the Bank may hold securities and, at such meetings, such officer shall possess and may exercise any and all rights and powers incident to the ownership of such securities which, as the owner thereof, the Bank might have possessed and exercised, if present.
Section 14. Bonds of Officers and Employees.
The Board of Directors shall from time to time designate the officers and employees who shall be required to give bond and fix the amounts thereof.
Section 15. Satisfaction of Loans.
On payment of sums lent, for which security shall have been taken either by way of mortgage or other lien on real or personal property or by the pledge of collateral, whether said loans have been made from funds of the Bank or from funds held in fiduciary capacity, any officer of the Bank shall have the power and authority to enter the fact of payment or satisfaction on the margin of the record of any such security or in any other legal manner to cancel such indebtedness and to release said security, and the Chief Executive Officer or the President or any Regional or Local President or any Vice President of the Bank shall have power and authority to execute a power of attorney authorizing the cancellation, release or satisfaction of any mortgage or other security given to the Bank in its corporate or fiduciary capacity, by such person as he or she may in his or her discretion appoint.
Section 16. Emergencies.
In the event of an emergency declared by the President of the United States or the person performing his or her functions, the officers and employees of this Bank will continue to conduct the affairs of the Bank under such guidance from the Directors as may be available except as to matters which by statute require specific approval of the Board of Directors and subject to conformance with any governmental directives or directives of the Federal Deposit Insurance Corporation during the emergency.
ARTICLE VI. AMENDMENTS
Except as otherwise provided herein or in the articles of incorporation of the Bank, these By-Laws may be amended or repealed by the affirmative vote of a majority of the Directors then holding office at any regular or special meeting of the Board of Directors, and the Stockholders may make, alter or repeal any By-Laws, whether or not adopted by them.
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Exhibit 6 to Form T-1
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, Regions Bank hereby consents that reports of examination of Regions Bank by Federal, State, Territorial or District regulatory authorities may be furnished by such regulatory authorities to the Securities and Exchange Commission upon request therefor.
Dated: May 6, 2015
| REGIONS BANK | ||
| By: | /s/ Paul Williams | |
| Paul Williams | ||
| Vice President | ||
Exhibit 7 to Form T-1
Regions Bank Legal Title of Bank Birmingham City AL 35203 State Zip Code FDIC Certificate Number: 12368 Printed on 4/30/2015 at 6:14 PM—Submitted to CDR on 4/30/2015 at 6:13 PM Consolidated Report of Condition for Insured Banks and Savings Associations for March 31, 2015 All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter. Schedule RC—Balance Sheet Assets 1. Cash and balances due from depository Institutions (from Schedule RC-A): a, Noninterest-bearing balances and currency and coin (1) b. Interest-bearing balances (2) 2. Securities: a. Held-to-maturity securities (from Schedule RC-B, column A) b. Available-for-sale securities (from Schedule RC-B, column D) 3. Federal funds sold and securities purchased under agreements to resell: a. Federal funds sold in domestic offices Dollar Amounts in Thousands RCFD dl l 811 l Mil ‘thou 0081 1,744,092 0071 4,222,958 1754 2,126,864 1773 22,312,842 RCON jaMMI 8987 0 b. Securities purchased under agreements to resell (3) 4. Loans and lease financing receivables (from Schedule RC-C): a. Loans and leases held for sale b. Loans and leases, net of unearned income c. LESS: Allowance for loan and lease losses d. Loans and leases, net of unearned income and allowance (item 4.b minus 4.c) 5. Trading assets (from Schedule RC-D) 6. Premises and fixed assets (including capitalized leases) 7. Other real estate owned (from Schedule RC-M) 8. Investments in unconsolidated subsidiaries and associated companies 9. Direct and indirect investments in real estate ventures 10. Intangible assets: a. Goodwill b. Other Intangible assets (from Schedule RC-M) 11. Other assets (from Schedule RC-F) 12. Total assets (sum of items 1 through 11) 8528 3123 78.242,30 1,097,69 RCFD 6989 65,000 B529 77,144,619 3545 424,035 2145 2,024,137 2150 136,355 2130 3656 3163 4,242,336 0426 486,200 2160 6,014,603 2170 121,434,925 (1) Indudes cash items in process of collection and unposted debits. (2) Indudes time certificates of deposit not held for trading. (3) Indudes all securities resale agreements in domestic and foreign offices, regardless of maturity. FFIEC 031 Page 16 of 84 RC-1 1.a 1.b 2.a 2.b 3,a 3.b 4.a 4.b 4.c 4.d 5 6 7 89 10.a 10.b 11 12
Regions Bank Legal Title of Bank FDIC Certificate Number: 12368 Printed on 4/30/2015 at 6:14 PM—Submitted to CDR on 4/30/2015 at 6:13 PM Schedule RC—Continued Dollar Amounts in Thousands Liabilities 13. Deposits: a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) (1) Noninterest-bearing (4) (2) Interest-bearing b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, part II) (1) Noninterest-bearing (2) Interest-bearing 14. Federal funds purchased and securities sold under agreements to repurchase: a. Federal funds purchased in domestic offices (5) 6631 6636 663 6636 33,699,80 65,297,50 237.50 b. Securities sold under agreements to repurchase (6) i95S 2,094,50: 15. Trading liabilities (from Schedule R-C D)3549 149,0 5 16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases) (from Schedule RC-M) 17. and 18. Not applicable (4) Includes noninterest-bearing demand, time, and savings deposits. (5) Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, “Other borrowed money.” (6) Includes all securities repurchase agreements in domestic and foreign offices, regardless of maturity. FFIEC 031 Page 16a of 84 RC-la 13.a 13.a.1 13.a,2 13.b 13.b.1 13.b.2 14.a 14.b 15 16
Regions Bank Legal Title of Bank FDIC Certificate Number: 12368 Printed on 4/30/2015 at 6:14 PM—Submitted to CDR on 4/30/2015 at 6:13 PM Schedule RC—Continued Dollar Amounts in Thousands RCFD hril I RH 1 Mill Thou Liabilities—Continued 19. Subordinated notes and debentures (1) 20. Other liabilities (from Schedule RC-G) 2L Total liabilities (sum of Items 13 through 20) 22. Not applicable Equity Capital Bank Equity Captal 23. Perpetual preferred stock and related surplus 24. Common stock 25. Surplus (excludes all surplus related to preferred stock) 26. a. Retained earnings b. Accumulated other comprehensive income (2) c. Other equity capital components (3) 27. a. Total bank equity capital (sum of items 23 through 26.c) b. Noncontrolling (minority) Interests in consolidated subsidiaries 28. Total equity capital (sum of items 27.a and 27.b) 29. Total liabilities and equity capital (sum of items 21 and 28) Memoranda To be reported with the March Report of Condition. 1, Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing work performed for the bank by Independent external auditors as of any date during 2014 1= Independent audit of the bank conducted In accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the bank 2 = Independent audit of the bank’s parent holding company conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the consolidated holding company (but not on the bank separately) 3 = Attestation on bank managements assertion on the effectiveness of the bank’s internal control over financial reporting by a certified public accounting firm. To be reported with the March Report of Condition. 2, Bank’s fiscal year-end date 3200 1,497,691 2930 2,074,681 2948 3838 105 191,408 0 3230 103 3839 16,726,608 3632 -367,730 B530 -115,464 A130 3210 16,243,517 3000 C G105 16,243,517 3300 121,434,926 RCFD Number 6724 2 4 = Directors’ examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state chartering authority) 5 = Directors’ examination of the bank performed by other external auditors (may be required by state chartering authority) 6 = Review of the bank’s financial statements by external auditors 7 = Compilation of the bank’s financial statements by external auditors 8 = Other audit procedures (excluding tax preparation work) 9 = No extemal audit work RCON MMDD 8678 1231 FFIEC 031 Page 17 of 84 RC-2 19 20 21 23 24 25 26.a 26.b 26.c 27.a 27.b 28 29 M.1 M.2 (1) Includes limited-life preferred stock and related surplus. (2) Includes, but is not limited to, net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, cumulative foreign currency translation adjustments, and accumulated defined benefit pension and other postretirement plan adjustments. (3) Includes treasury stock and unearned Employee Stock Ownership Plan shares.