Ardent Health, Inc S-3, filed Aug 21, 2025
Ardent Health, Inc. (ARDT)
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As filed with the Securities and Exchange Commission on August 21, 2025
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Ardent Health, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 61-1764793 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
340 Seven Springs Way, Suite 100
Brentwood, Tennessee 37027
(615) 296-3000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Martin J. Bonick
Chief Executive Officer
Ardent Health, Inc.
340 Seven Springs Way, Suite 100
Brentwood, Tennessee 37027
(615) 296-3000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
| Stephen C. Petrovich, Esq. Executive Vice President and General Counsel Ardent Health, Inc. 340 Seven Springs Way, Suite 100 Brentwood, Tennessee 37027 Telephone: (615) 296-3000 |
Samir A. Gandhi, Esq. Michael P. Heinz, Esq. Sidley Austin LLP 787 Seventh Avenue New York, New York 10019 Telephone: (212) 839-5300 |
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If any of the 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. ☒
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. ☐
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, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☒ | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to such Section 8(a), may determine.
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The information in this prospectus is not complete and may be changed. We may not sell these securities or accept an offer to buy these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state or jurisdiction where such offer or sale is not permitted.
Subject to Completion
Dated August 21, 2025
PROSPECTUS
Ardent Health, Inc.
$500,000,000
Common Stock
Preferred Stock
Debt Securities
120,453,642 Shares of our Common Stock
Offered by the Selling Stockholders
We may offer and sell, from time to time, shares of our common stock, shares of preferred stock, or debt securities, in any combination, together or separately, in one or more offerings in amounts, at prices and on terms that we determine at the time of the offering, with an aggregate offering price of up to $500 million. This prospectus describes the general manner in which those securities may be offered by us using this prospectus. We will specify in an accompanying prospectus supplement and any related free writing prospectus the particular terms of securities offered by us and the offering thereof and may also add, update or change information contained in this prospectus.
In addition, this prospectus relates to the offer and sale, from time to time, of up to 120,453,642 shares of our common stock (the “Selling Stockholder Shares”) by the selling stockholders identified in the “Selling Stockholders” section of this prospectus or their permitted transferees, pledgees, distributees, donees or other successors-in-interest (which we refer to collectively herein, together with such identified selling stockholders, as the “Selling Stockholders”). The Selling Stockholders may sell the shares of our common stock in a number of different ways and at varying prices. We provide more information about how the Selling Stockholders may sell the shares of our common stock in the section of this prospectus titled “Plan of Distribution—Selling Stockholders’ Plan of Distribution.” We will not receive any of the proceeds from the sale of our common stock by any of the Selling Stockholders. We have paid or will pay the fees and expenses incident to the registration of the shares of our common stock for sale by the Selling Stockholders. The Selling Stockholders will bear all discounts, commissions and stock transfer taxes, if any, attributable to their sales of the Selling Stockholder Shares.
You should read this prospectus, the information incorporated, or deemed to be incorporated, by reference in this prospectus, and any applicable prospectus supplement and related free writing prospectus carefully before you invest.
Our common stock is listed on the New York Stock Exchange under the symbol “ARDT.” On August 20, 2025, the last reported sales price for our common stock was $13.02 per share. None of the other securities we may offer are currently listed on any securities exchange. Any applicable prospectus supplement and any related free writing prospectus will contain information, where applicable, as to any other listing on the New York Stock Exchange or any securities market or exchange of the securities covered by the prospectus supplement and any related free writing prospectus.
An investment in our securities involves a high degree of risk. You should carefully consider the information under the heading “Risk Factors” beginning on page 2 of this prospectus and, if applicable, any risk factors described in any accompanying prospectus supplement and in our Securities and Exchange Commission filings that are incorporated by reference into this prospectus before investing in our securities.
Common stock, preferred stock and/or debt securities may be sold by us, or common stock may be sold by the Selling Stockholders, to or through underwriters or dealers or directly to purchasers or through agents designated from time to time. For additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution” in this prospectus. If any underwriters, dealers or agents are involved in the sale of any securities with respect to which this prospectus is being delivered, the names of such underwriters or agents and any applicable fees, discounts or commissions, details regarding over-allotment options, if any, and the net proceeds to us will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds we expect to receive from such sale will also be set forth in a prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2025
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This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”) using a “shelf” registration process. Under this shelf registration process, from time to time, we may sell any combination of the securities described in this prospectus in one or more offerings, in amounts, at prices and on terms that we determine at the time of the offering, with an aggregate offering price of up to $500 million, and the Selling Stockholders may sell up to 120,453,642 Selling Stockholder Shares from time to time in one or more offerings as described in this prospectus. We have provided to you in this prospectus a general description of the securities we may offer. Each time we sell securities under this shelf registration process, we will provide a prospectus supplement that will contain specific information about the terms of the offering. We, or the Selling Stockholders, may also add, update or change in any prospectus supplement any of the information contained in this prospectus. To the extent that there is a conflict between the information contained in this prospectus and any prospectus supplement, you should rely on the information in the prospectus supplement; provided that, if any statement in one of these documents is inconsistent with a statement in another document having a later date, then the statement in the document having the later date will modify or supersede the earlier statement. You should read both this prospectus and any prospectus supplement together with the additional information described under the heading “Where You Can Find More Information.”
Neither we, the Selling Stockholders nor any agent, underwriter or dealer has authorized anyone to give you any information or to make any representation other than the information and representations contained in or incorporated by reference into this prospectus or any applicable prospectus supplement or free writing prospectus. We, the Selling Stockholders and any agent, underwriter or dealer take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. You may not imply from the delivery of this prospectus and any applicable prospectus supplement or any free writing prospectus, nor from a sale made under this prospectus and any applicable prospectus supplement or any free writing prospectus, that our affairs have remained unchanged since the date of this prospectus and any applicable prospectus supplement or free writing prospectus or that the information contained in any document incorporated by reference is accurate as of any date other than the date of the document incorporated by reference, regardless of the time of delivery of this prospectus and any applicable prospectus supplement or any free writing prospectus or any sale of a security. This prospectus and any applicable prospectus supplement may only be used where it is legal to sell the securities.
In this prospectus, unless the context otherwise requires, the terms “Ardent,” “the Company,” “we,” “us,” and “our” refer to Ardent Health, Inc. and direct and indirect subsidiaries of Ardent Health, Inc. and partnerships and joint ventures in which such subsidiaries are equity owners on a consolidated basis.
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This summary highlights selected information from this prospectus and does not contain all of the information that you need to consider when making your investment decision. You should carefully read the entire prospectus, the applicable prospectus supplement and any related free writing prospectus, including the risks of investing in our securities discussed under the heading “Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus, as well as under similar headings in the other documents that are incorporated by reference into this prospectus. You should also carefully read the information incorporated by reference into this prospectus, including our consolidated financial statements, and the exhibits to the registration statement of which this prospectus forms a part.
Company Overview
We are a leading provider of healthcare services in the United States, operating in eight growing mid-sized urban markets across six states: Texas, Oklahoma, New Mexico, New Jersey, Idaho and Kansas. We deliver care through a system of 30 acute care hospitals and approximately 280 sites of care with 1,875 employed and affiliated providers as of June 30, 2025. Affiliated providers are physicians and advanced practice providers with whom we contract for services through a professional services agreement or other independent contractor agreement. We hold a leading position in a majority of our markets, and we believe we are one of the leading healthcare systems based on market share and our integrated network of hospitals, ambulatory facilities, and physician practices. We operate either independently or in partnership with premier academic medical centers, large not-for-profit hospital systems, community physicians, and a community foundation through our well-established and differentiated joint venture (“JV”) model. Collectively, we operate with a consumer-centric approach to caring for our patients and our communities. Our strategic JV partners offer us significant advantages, including expanded access points, clinical talent availability, local brand recognition, and scale that enable us to accelerate market penetration. We believe that we help our partners enhance their network and regional presence through our operational acumen. We strive to strengthen clinical services, drive operating improvements, and centrally manage operations to optimize hospital performance and enhance patient care. In each of these partnerships, we are the majority owner and serve as the day-to-day operator.
As of August 4, 2025, EGI-AM Investments, L.L.C. (“EGI-AM”) owned approximately 54.0% of our outstanding common stock. As a result, EGI-AM is our controlling stockholder and we are a “controlled company” within the meaning of the corporate governance standards of the New York Stock Exchange. EGI-AM is an affiliated entity of Equity Group Investments, a private investment firm founded more than 50 years ago by Sam Zell.
Corporate Information
Ardent Health, Inc. was initially formed in 2015 as a Delaware limited liability company. On July 17, 2024, Ardent Health Partners, LLC converted from a Delaware limited liability company into a Delaware corporation in connection with its initial public offering and changed its name to Ardent Health Partners, Inc. Effective June 3, 2025, Ardent Health Partners, Inc. changed its name to Ardent Health, Inc. Ardent Health, Inc. is a holding company that has affiliates that operate acute care hospitals and other healthcare facilities and employ physicians.
Our principal executive offices are located at 340 Seven Springs Way, Suite 100, Brentwood, Tennessee 37027, and our telephone number is (615) 296-3000. Our website address is www.ardenthealth.com, and the information contained on, or accessible from, or hyperlinked to, our website and our facilities’ websites is not part of this prospectus by reference or otherwise.
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An investment in our securities involves a high degree of risk. Please see the risk factors described in Item 1A “Risk Factors” in our most recent Annual Report on Form 10-K, which is incorporated by reference in this prospectus, as well as any risk factors included in any other filings we have made with the SEC that are incorporated by reference herein or set forth in any applicable prospectus supplement that accompanies this prospectus. Before making an investment decision, you should carefully consider these risks as well as other information we include or incorporate by reference in this prospectus. The risks and uncertainties we have described are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business operations, results of operations or financial condition. Additional risk factors may be included in an applicable prospectus supplement relating to a particular offering of our securities. These risks could materially affect our business operations, results of operations or financial condition. You could lose all or part of your investment.
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This prospectus and documents incorporated by reference herein contain “forward-looking statements,” as that term is defined in the U.S. federal securities laws. These forward-looking statements include, but are not limited to, statements other than statements of historical facts, including, among others, statements relating to our future financial performance, our business prospects and strategy, anticipated financial position, liquidity and capital needs, the industry in which we operate and other similar matters. Words such as “anticipates,” “expects,” “intends,” “plans,” “predicts,” “believes,” “seeks,” “estimates,” “could,” “would,” “will,” “may,” “can,” “continue,” “potential,” “should” and the negative of these terms or other comparable terminology often identify forward-looking statements. These forward-looking statements are not guarantees of future performance and are subject to risks and uncertainties that could cause actual results to differ materially from the results contemplated by the forward-looking statements. Factors, risks, and uncertainties that could cause actual outcomes and results to be materially different from those contemplated include, among others: (1) general economic and business conditions, both nationally and in the regions in which we operate, including the impact of challenging macroeconomic conditions and inflationary pressures, current geopolitical instability, and impacts from the imposition of, or changes in, tariffs, as well as the potential impact on us of uncertain political, financial, credit and capital conditions; (2) possible reductions or other changes in Medicare, Medicaid and other state programs, including Medicaid supplemental payment programs, Medicaid waiver programs or state directed payments, that could have an adverse effect on our revenues and business; (3) reduction in the reimbursement rates paid by commercial payors, increased reimbursement denials or payment delays by commercial payors, our inability to retain and negotiate favorable contracts with private third party payors, or an increasing volume of uninsured or underinsured patients; (4) effects of changes in healthcare policy or legislation, including the One Big Beautiful Bill Act (the “OBBBA”) and any other reforms that have or may be undertaken by the current presidential administration, and legal and regulatory restrictions on our hospitals that have physician owners; (5) the ability to achieve operating and financial targets, develop and execute mitigation plans to offset to the extent possible impacts from the OBBBA, the scheduled expiration of temporary enhanced subsidies for individuals eligible to purchase insurance coverage through health insurance marketplaces and imposition of tariffs, attain expected levels of patient volumes and revenues, and control the costs of providing services; (6) security threats, catastrophic events and other disruptions affecting our, our service providers’ or our JV partners’ information technology and related systems, which have adversely affected, and could in the future adversely affect, our relationships with patients and business partners and subject us to legal claims and liabilities, reputational harm and business disruption and adversely affect our financial condition; (7) the highly competitive nature of the healthcare industry and continued industry trends towards clinical transparency and value-based purchasing may impact our competitive position; (8) inability to recruit and retain quality physicians, as well as increasing cost to contract with hospital-based physicians; (9) changes to physician utilization practices and treatment methodologies and other factors outside our control that impact demand for medical services and may reduce our revenues and ability to grow profitability; (10) the effects related to the sequestration spending reductions pursuant to both the Budget Control Act of 2011 and the Pay-As-You-Go Act of 2010 and the potential for future deficit reduction legislation; (11) continued industry trends toward value-based purchasing, third party payor consolidation and care coordination among healthcare providers; (12) inability to successfully complete acquisitions or strategic JVs or inability to realize all of the anticipated benefits; (13) liabilities because of professional liability and other claims brought against our hospitals, physician practices, outpatient facilities or other business operations; (14) exposure to certain risks and uncertainties by the JVs through which we conduct a significant portion of our operations, including anticipated synergies, of past acquisitions and the risk that transactions may not receive necessary government clearances; (15) failure to obtain drugs and medical supplies at favorable prices or sufficient volumes; (16) operational, legal and financial risks associated with outsourcing functions to third parties; (17) our facilities are heavily concentrated in Texas and Oklahoma, which makes us sensitive to regulatory, economic and competitive conditions and changes in those states; (18) negative impact of severe weather, climate change, and other factors beyond our control, which could restrict patient access to care or cause one or more facilities to close temporarily or permanently; (19) risks related to the master lease agreement with subsidiaries of Ventas, Inc. (“Ventas”), pursuant to which we lease ten of our hospitals, and its restrictions and limitations on our business; (20) the impact of our significant indebtedness and the ability to
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refinance such indebtedness on acceptable terms; (21) our failure to comply with complex laws and regulations applicable to the healthcare industry or to adjust our operations in response to changing laws and regulations; (22) the impact of governmental claims or governmental investigations, payor audits and litigation brought against our hospitals, physician practices, outpatient facilities or other business operations; (23) actual or perceived failures to comply with applicable data protection, privacy and security laws, regulations, standards and other requirements; (24) the impact of a deterioration of public health conditions associated with a future pandemic, epidemic or outbreak of infectious disease; (25) inability to or delay in building, acquiring, selling, renovating or expanding our healthcare facilities; (26) failure to comply with federal and state laws relating to Medicare and Medicaid enrollment, permit, licensing and accreditation requirements; (27) the results of our efforts to use technology, including artificial intelligence and machine learning, to drive efficiencies, better outcomes and an enhanced patient experience; (28) our status as a controlled company; (29) conflicts of interest between our controlling stockholder and other holders of our common stock; and (30) other risk factors described in our filings with the SEC, including those discussed in Item 1A “Risk Factors” in our most recent Annual Report on Form 10-K, as well as those discussed in this prospectus, the documents incorporated by reference into this prospectus or any free writing prospectus.
We caution you that the foregoing list may not contain all of the risks and uncertainties that may affect the forward-looking statements made in this prospectus. You should not rely upon forward-looking statements as predictions of future events. The forward-looking statements in this prospectus are based on our management’s current beliefs, expectations, and projections about future events and trends affecting our business, results of operations, financial condition, and prospects. These statements are subject to risks, uncertainties, and other factors described in the “Risk Factors” section and included our filings with the SEC. We operate in a competitive and rapidly changing environment where new risks and uncertainties can emerge, making it impossible to predict all potential impacts on our forward-looking statements. Consequently, actual results may differ materially from those described. The forward-looking statements pertain only to the date they are made, and we do not undertake any obligation to update them to reflect new information or events unless required by law. You are advised not to place undue reliance on these statements and to consult any additional disclosures we may provide through the documents incorporated by reference into this prospectus, any free writing prospectus and our other filings with the SEC, such as our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. The SEC maintains a website that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC, including us. The SEC’s website can be found at www.sec.gov. Our SEC filings are available free of charge on the “Investor Relations” page of our website at www.ardenthealth.com as soon as reasonably practicable after we electronically file these materials with the SEC. You may access these SEC filings on our website. Except for those SEC filings expressly incorporated by reference in this prospectus or any applicable prospectus supplement, none of the other information on our website is part of this prospectus or incorporated by reference into this prospectus or any applicable prospectus supplement.
This prospectus is part of a registration statement filed on Form S-3 with the SEC under the Securities Act, and the rules and regulations promulgated by the SEC thereunder. This prospectus does not contain all of the information set forth in the registration statement and the exhibits to the registration statement. For further information concerning us and our securities, you should read the entire registration statement and the additional information described below. The registration statement has been filed electronically and may be obtained in any manner listed above. Any statements contained herein concerning the provisions of any document are not necessarily complete, and, in each instance, reference is made to the copy of such document filed as an exhibit to the registration statement or otherwise filed with the SEC. Each such statement is qualified in its entirety by such reference.
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INFORMATION INCORPORATED BY REFERENCE
The rules of the SEC allow us to “incorporate by reference” information in this prospectus, which means that we can disclose important information to you by referring to those documents we file with the SEC. Any information incorporated this way is considered to be part of this prospectus, and any information that we file later with the SEC will automatically update and, in some cases, supersede the information contained or incorporated by reference herein. We hereby “incorporate by reference” the documents and information listed below (other than, in each case, documents or information deemed to be furnished and not filed in accordance with SEC rules):
| • | Annual Report on Form 10-K for the year ended December 31, 2024, filed with the SEC on February 27, 2025; |
| • | the information contained in our definitive proxy statement on Schedule 14A for our 2025 annual meeting of stockholders filed with the SEC on April 8, 2025, to the extent incorporated by reference in Part III of our Annual Report on Form 10-K for the year ended December 31, 2024; |
| • | Quarterly Reports on Form 10-Q for the quarters ended March 31, 2025 and June 30, 2025, filed with the SEC on May 7, 2025 and August 6, 2025, respectively; |
| • | Current Reports on Form 8-K filed with the SEC on January 13, 2025 (solely with respect to Item 5.02), March 31, 2025, April 3, 2025, May 23, 2025 and June 20, 2025; and |
| • | the description of our common stock, which is registered under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), in our Form 8-A filed with the SEC on July 16, 2024, as updated by the description of our common stock set forth in Exhibit 4.1 to our Annual Report on Form 10-K for the year ended December 31, 2024, filed with the SEC on February 27, 2025. |
All documents that we file (but not those that we furnish) pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of the initial registration statement of which this prospectus is a part and prior to the effectiveness of such registration statement, shall be deemed to be incorporated by reference into this prospectus and will automatically update and supersede the information in this prospectus, and any previously filed documents. All documents that we file (but not those that we furnish) pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this prospectus and prior to the termination of the offering of any of the securities covered under this prospectus shall be deemed to be incorporated by reference into this prospectus and will automatically update and supersede the information in this prospectus, the applicable prospectus supplement and any previously filed documents.
Any statement contained herein or in a document incorporated or deemed to be incorporated by reference in this prospectus or any applicable prospectus supplement shall be deemed to be modified or superseded for purposes of this prospectus and such applicable prospectus supplement to the extent that a statement contained in this prospectus or such applicable prospectus supplement, or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this prospectus and such applicable prospectus supplement, modifies or supersedes such earlier statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus or such applicable prospectus supplement.
Upon your oral or written request, we will provide you with a copy of any of these filings at no cost. Requests should be directed to:
Ardent Health, Inc.
340 Seven Springs Way, Suite 100
Brentwood, Tennessee 37027
(615) 296-3000
Attention: Investor Relations
Exhibits to any documents incorporated by reference in this prospectus will not be sent, however, unless those exhibits have been specifically referenced in this prospectus.
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Unless otherwise stated in any applicable prospectus supplement, we will use the net proceeds from the sale of any securities that may be offered by us for working capital, to acquire complementary businesses, products, services or technologies and for general corporate purposes, which may include repayment of debt and capital expenditures. Pending such use, any net proceeds may be invested temporarily in short-term, interest-bearing, investment-grade securities and/or similar assets as we may determine.
We will not receive any of the proceeds from the sale of common stock being offered by any of the Selling Stockholders.
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GENERAL DESCRIPTION OF SECURITIES
We may offer and sell, at any time and from time to time:
| • | shares of our common stock, par value $0.01 per share; |
| • | shares of our preferred stock, par value $0.01 per share; |
| • | our debt securities in one or more series, in each case consisting of notes or other unsecured evidences of indebtedness; or |
| • | any combination of the foregoing securities. |
The Selling Stockholders may also offer and sell shares of our common stock from time to time in connection with this offering.
The terms of any securities offered will be determined at the time of sale. We may issue debt securities that are exchangeable for and/or convertible into common stock or any of the other securities that may be sold under this prospectus. When particular securities are offered, a prospectus supplement to this prospectus will be filed with the SEC, which will describe the terms of the offering and sale of the offered securities. To the extent the information contained in any applicable prospectus supplement differs from the general description set forth in this prospectus, you should rely on the information in that prospectus supplement.
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We have provided below a summary description of our capital stock. This description does not purport to be complete and is qualified in its entirety by reference to the full text of our certificate of incorporation, as amended (our “Certificate of Incorporation”), and our amended and restated bylaws (our “Bylaws”), each of which is filed as an exhibit to the registration statement of which this prospectus forms a part and incorporated by reference herein, and to the applicable provisions of the General Corporation Law of the State of Delaware, which we refer to as the “DGCL.” To find out where copies of our Certificate of Incorporation and Bylaws can be obtained, see “Where You Can Find More Information.” References in this “Description of Capital Stock” section to “the Company,” “we,” “us,” “our” and “ours” refer to Ardent Health, Inc. and not to any of its subsidiaries.
General
Under our Certificate of Incorporation, we have authority to issue (i) 750,000,000 shares of our common stock, par value $0.01 per share, and (ii) 50,000,000 shares of preferred stock, par value $0.01 per share. As of August 4, 2025, we had 143,106,447 shares of our common stock issued and outstanding and no shares of preferred stock issued and outstanding.
Common Stock
Our ability to pay dividends on our common stock is subject to our subsidiaries’ ability to pay dividends to us, which is, in turn, subject to the restrictions set forth in our existing debt agreements and which may be limited by the agreements governing other indebtedness we or our subsidiaries incur in the future.
The holders of our common stock do not have any preemptive, cumulative voting, subscription, conversion, redemption or sinking fund rights. Our common stock is not subject to future calls or assessments by us. The rights and privileges of the holders of our common stock are subject to any series of preferred stock that we may issue in the future.
Preferred Stock
No shares of our authorized preferred stock are currently outstanding. Under our Certificate of Incorporation, our Board of Directors (the “Board”) has the authority, without further action by our stockholders, to issue up to 50 million shares of preferred stock in one or more series and to fix the voting powers, designations, preferences and the relative participating, optional or other special rights and qualifications, limitations and restrictions of each series, including dividend rights, dividend rates, conversion rights, voting rights, terms of redemption, liquidation preferences and the number of shares constituting any series. Because the Board has the power to establish the preferences and rights of the shares of any series of preferred stock, it may afford holders of any preferred stock preferences, powers and rights, including voting and dividend rights, senior to the rights of holders of our common stock, which could adversely affect the holders of our common stock and could delay, discourage or prevent a takeover of us even if a change of control of our Company would be beneficial to the interests of our stockholders.
Voting Rights
Each holder of our common stock is entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders, including the election of directors. Our stockholders do not have cumulative voting rights in the election of directors. Accordingly, holders of a majority of the voting shares are able to elect all of the directors. In addition, the affirmative vote of holders of 66 2/3% of the voting power of all of the then outstanding voting stock will be required to take certain actions, including amending certain provisions of our Certificate of Incorporation, such as the provisions relating to amending our Bylaws and director liability.
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Dividend Rights
Holders of our common stock are entitled to receive, on a pro rata basis, dividends, if any, as may be declared from time to time by our Board out of legally available funds, subject to preference that may be applicable to preferred stock, if any, then outstanding. Although we have paid cash dividends to our equity holders in the past, we currently do not expect to pay dividends on shares of our common stock and we currently intend to retain all available funds and any future earnings for use in the operation of our business. Any future determination to pay dividends will be made at the discretion of our Board and will depend on many factors, including our financial condition, earnings, legal and regulatory requirements, restrictions in our debt agreements and other factors our Board deems relevant.
Liquidation Rights
In the event of our liquidation, dissolution or winding up, holders of our common stock will be entitled to share equally and ratably in the net assets legally available for distribution to stockholders after the payment of all of our debts and other liabilities, subject to the prior rights, if any, of holders of any outstanding shares of preferred stock.
Rights and Preferences
Holders of our common stock have no preemptive, conversion, subscription or other rights, and there are no redemption or sinking fund provisions applicable to our common stock.
Fully Paid and Nonassessable
All of our outstanding common stock is fully paid and nonassessable.
Registration Rights
Pursuant to the Registration Rights Agreement, dated as of July 3, 2015, and as amended on May 1, 2023 (as so amended, the “Registration Rights Agreement”), EGI-AM, ALH Holdings, LLC, a subsidiary of Ventas, Pure Health Capital Americas 1 SPV RSC LTD (“Pure Health”) and certain current and former executive officers of the Company are entitled to rights with respect to the registration of their shares under the Securities Act. The Registration Rights Agreement provides for customary demand and piggyback registration rights. Under the Registration Rights Agreement, the stockholders party thereto, or their permitted transferees, have the right to require us to register their shares under the Securities Act, so that those shares may be publicly resold, and such stockholders, or their permitted transferees, have the right to include their shares in any registration statement we file.
Anti-Takeover Effects of Provisions of Our Certificate of Incorporation, Bylaws and Delaware Law
Some provisions of the DGCL and our Certificate of Incorporation and our Bylaws contain provisions that could make the following transactions more difficult: acquisition of us by means of a tender offer; acquisition of us by means of a proxy contest or otherwise; or removal of our incumbent officers and directors. It is possible that these provisions could make it more difficult to accomplish or could deter transactions that stockholders may otherwise consider to be in their best interest or in our best interests, including transactions that might result in a premium over the market price for our shares.
These provisions, summarized below, are expected to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of us to first negotiate with our Board. We believe that the benefits of increased protection of our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages of discouraging these proposals because negotiation of these proposals could result in an improvement of their terms.
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Delaware Anti-Takeover Statute
Our Certificate of Incorporation provides that we are not governed by Section 203 of the DGCL which, in the absence of such provisions, would have imposed additional requirements regarding mergers and other business combinations.
However, our Certificate of Incorporation includes a provision that restricts us from engaging in any business combination with an interested stockholder for three years following the date that person becomes an interested stockholder. Such restrictions shall not apply to any business combination between EGI-AM and any affiliate thereof or their direct and indirect transferees, on the one hand, and us, on the other.
Additionally, we would be able to enter into a business combination with an interested stockholder if:
| • | before that person became an interested stockholder, our Board approved the transaction in which the interested stockholder became an interested stockholder or approved the business combination; |
| • | upon the consummation of the transaction that resulted in the interested stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of our voting stock outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) stock held by directors who are also officers of our Company and by employee stock plans that do not provide employees with the right to determine confidentially whether shares held under the plan will be tendered in a tender or exchange offer; or |
| • | following the transaction in which that person became an interested stockholder, the business combination is approved by our Board and authorized at a meeting of stockholders by the affirmative vote of the holders of at least 66 2/3% of our outstanding voting stock not owned by the interested stockholder. |
In general, a “business combination” is defined to include mergers, asset sales and other transactions resulting in financial benefit to a stockholder and an “interested stockholder” is any person who, together with affiliates and associates, is the owner of 15% or more of our outstanding voting stock or is our affiliate or associate and was the owner of 15% or more of our outstanding voting stock at any time within the three-year period immediately before the date of determination. Under our Certificate of Incorporation, an “interested stockholder” does not include EGI-AM and any affiliate thereof or their direct and indirect transferees.
This provision of our Certificate of Incorporation could prohibit or delay mergers or other takeovers or change in control attempts and, accordingly, may discourage attempts to acquire us even though such a transaction may offer our stockholders the opportunity to sell their stock at a price above the prevailing market price.
Board Vacancies
Our Certificate of Incorporation and Bylaws provide that only our Board will be allowed to fill vacant directorships.
Special Stockholder Meetings
Our Bylaws provide that a special meeting of stockholders may be called by our Board, or by our President or Chief Executive Officer. Our Bylaws prohibit any stockholder from calling a special meeting of stockholders.
Requirements for Advance Notification of Stockholder Nominations and Proposals
Our Bylaws establish advance notice procedures with respect to stockholder proposals and the nomination of candidates for election as directors, other than nominations made by or at the direction of the Board or a committee of the Board.
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Elimination of Stockholder Action by Written Consent
Our Certificate of Incorporation and our Bylaws eliminate the right of stockholders to act by written consent without a meeting.
Choice of Forum
Our Certificate of Incorporation provides that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will be the sole and exclusive forum for: any derivative action or proceeding brought on our behalf; any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer or other employee to us or our stockholders; any action asserting a claim against us or any of our directors, officers or other employees arising pursuant to the DGCL, our Certificate of Incorporation or our Bylaws; any action asserting a claim against us or any of our directors, officers or other employees governed by the internal affairs doctrine; or any other action asserting an internal corporate claim, in all cases subject to the court’s having personal jurisdiction over all indispensable parties named as defendants. Similarly, our Certificate of Incorporation provides that the U.S. federal district courts are the sole and exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act or the Exchange Act. Although our Certificate of Incorporation contains the choice of forum provision described above, it is possible that a court could find that such a provision is inapplicable for a particular claim or action or that such provision is unenforceable.
Amendment of Charter Provisions
The amendment of any of the above provisions would require approval by a stockholder vote by the holders of at least a majority of the voting power of the then outstanding voting stock. In addition, our directors are expressly authorized to amend our Bylaws without the approval of our stockholders.
The provisions of the DGCL, our Certificate of Incorporation and our Bylaws could have the effect of discouraging others from attempting hostile takeovers and, as a consequence, they may also inhibit temporary fluctuations in the market price of our common stock that often result from actual or rumored hostile takeover attempts. These provisions may also have the effect of preventing changes in our management. It is possible that these provisions could make it more difficult to accomplish transactions that stockholders may otherwise deem to be in their best interests.
Limitation of Liability and Indemnification
Our Certificate of Incorporation limits the liability of our directors and officers to the maximum extent permitted by the DGCL. The DGCL provides that directors and officers will not be personally liable for monetary damages for breach of fiduciary duty as directors or officers, except liability:
| • | for any breach of their duty of loyalty to the corporation or its stockholders; |
| • | for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; |
| • | under Section 174 of the DGCL (governing distributions to stockholders); |
| • | for any transaction from which the director derived an improper personal benefit; or |
| • | for any action by or in the right of the corporation. |
However, if the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors and officers, then the liability of our directors and officers will be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. The modification or repeal of this provision of our Certificate of Incorporation will not adversely affect any right or protection of a director or officer existing at the time of such modification or repeal.
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Our Certificate of Incorporation provides that we will, to the fullest extent from time to time permitted by law, indemnify our directors and officers against all liabilities and expenses in any proceeding, arising out of their status as an officer or director or their activities in these capacities. We will also indemnify any person who, at our request, is or was serving as a director, officer, employee or agent of another corporation, partnership, JV, trust or other enterprise. We may, by action of our Board, provide indemnification to our employees and agents within the same scope and effect as the foregoing indemnification of directors and officers.
The right to be indemnified will include the right of an officer or a director to be paid expenses in advance of the final disposition of any proceeding, provided that, if required by law, we receive a written undertaking to repay such amount if it will be determined that he or she is not entitled to be indemnified.
Our Board may take such action as it deems necessary to carry out these indemnification provisions, including adopting procedures for determining and enforcing indemnification rights and purchasing insurance policies. Our Board may also adopt bylaws, resolutions or contracts implementing indemnification arrangements as may be permitted by law. Neither the amendment, repeal or modification of these indemnification provisions, nor any provision of our Certificate of Incorporation that is inconsistent with these indemnification provisions, will eliminate or reduce any rights to indemnification relating to their status or any activities prior to such amendment, repeal or modification.
We believe these provisions will assist in attracting and retaining qualified individuals to serve as directors.
Corporate Opportunities
Under Delaware law, officers and directors generally have an obligation to present to the corporation they serve business opportunities which the corporation is financially able to undertake and which falls within the corporation’s business line and are of practical advantage to the corporation, or in which the corporation has an actual or expectant interest. A corollary of this general rule is that when a business opportunity comes to an officer or director that is not one in which the corporation has an actual or expectant interest, the officer is generally not obligated to present it to the corporation. Certain of our officers and directors may serve as officers, directors or fiduciaries of other entities and, therefore, may have legal obligations relating to presenting available business opportunities to us and to other entities. Potential conflicts of interest may arise when our officers and directors learn of business opportunities (e.g., the opportunity to acquire an asset or portfolio of assets, to make a specific investment, to effect a sale transaction, etc.) that would be of material advantage to us and to one or more other entities of which they serve as officers, directors or other fiduciaries.
Section 122(17) of the DGCL permits a corporation to renounce, in advance, in its certificate of incorporation or by action of its board of directors, any interest or expectancy of a corporation in certain classes or categories of business opportunities. Where business opportunities are so renounced, certain of our officers and directors will not be obligated to present any such business opportunities to us. Our Certificate of Incorporation provides that, to the fullest extent permitted by law, no officer or director of ours who is also an officer, director, employee, managing director or other affiliate of EGI-AM or ALH Holdings, LLC (a subsidiary of Ventas) or any of their respective affiliates will be liable to us or our stockholders for breach of any fiduciary duty by reason of the fact that any such individual directs a corporate opportunity to EGI-AM or Ventas or any of their respective affiliates instead of us, or does not communicate information regarding a corporate opportunity to us that the officer, director, employee, managing director or other affiliate has directed to EGI-AM or Ventas or any of their respective affiliates (other than us), as applicable. This provision of our Certificate of Incorporation relates only to the EGI-AM and Ventas designees to our Board, namely Messrs. Sen and Sotir and Mses. Campion and Havdala (in the case of EGI-AM) and Mr. Bulgarelli (in the case of Ventas).
Listing
Our common stock is listed on the New York Stock Exchange under the symbol “ARDT.”
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Nomination Agreement
On July 19, 2024, we entered into a Nomination Agreement with EGI-AM and ALH Holdings, LLC (a subsidiary of Ventas) that provides certain Board nomination and committee designation rights for EGI-AM and certain Board nomination rights for ALH Holdings, LLC. For additional information, see “Certain Relationships and Related Party Transactions—Nomination Agreement” in our definitive proxy statement on Schedule 14A, filed with the SEC on April 8, 2025, which is incorporated by reference herein.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare Trust Company, N.A.
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DESCRIPTION OF DEBT SECURITIES
The following is a general description of the terms and provisions of debt securities we may issue from time to time pursuant to this prospectus unless we provide otherwise in the applicable prospectus supplement. In this “Description of Debt Securities” section, unless specifically noted otherwise or unless the context otherwise requires, all references to “the Issuer,” “we,” “us,” “our” and “ours” refer to Ardent Health, Inc., as issuer of the debt securities, and not to any of the Issuer’s subsidiaries.
As required by federal law for all bonds and notes of companies that are publicly offered, any debt securities we issue will be governed by a document called an “indenture.” We have summarized the general features of the debt securities to be governed by the indenture. The summary is not complete. An indenture is a contract between us and a financial institution acting as trustee on behalf of the holders of the debt securities and is subject to and governed by the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). The trustee has two main roles. First, the trustee can enforce holders’ rights against us if we default. There are some limitations on the extent to which the trustee acts on holders’ behalf, described under “—Events of Default, Notice and Waiver.” Second, the trustee performs certain administrative duties, such as sending interest and principal payments to holders.
Because this section is a summary, it does not describe every aspect of any debt securities we may issue or the indenture governing any such debt securities. The statements made hereunder relating to any indenture and the debt securities to be issued thereunder are summaries and do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all anticipated provisions of the indentures and the debt securities.
General
The indenture may provide that the debt securities may be issued without limit as to aggregate principal amount, in one or more series. All debt securities of one series need not be issued at the same time and, unless otherwise provided, a series of debt securities may be reopened, without notice to, or the consent of, the holders of the debt securities of such series, for issuances of additional debt securities of such series or to establish additional terms of such series.
The indenture may provide that there may be more than one trustee thereunder, each with respect to one or more series of debt securities. Any trustee under the indenture may resign as to the debt securities of one or more series or be removed as to the debt securities of any series by the holders of a majority in principal amount of the debt securities of such series then outstanding or, under certain circumstances, by the Issuer, and a successor trustee may be appointed to act with respect to such series. In the event that two or more persons are acting as trustee with respect to different series of debt securities, each trustee shall be a trustee of a trust under the indenture separate and apart from the trust administered by any other trustee, and, unless otherwise indicated herein, any action described herein to be taken by the trustee may be taken by each trustee with respect to, and only with respect to, the debt securities of the series for which it is trustee under the indenture.
For a detailed description of the debt securities of any series, you should consult the applicable prospectus supplement relating to debt securities. Prior to the issuance of debt securities of any series, the following terms shall be established in, or pursuant to, authority granted by a resolution of the Issuer’s Board and set forth in an officers’ certificate, or established in one or more of indentures supplemental to the indenture:
| (1) | the title of such debt securities; |
| (2) | any limit upon the aggregate principal amount of such debt securities which may be authenticated and delivered under the indenture (except as otherwise permitted under the indenture); |
| (3) | if any of such debt securities are to be issuable in global form, when any of such debt securities are to be issuable in global form and (i) whether such debt securities are to be issued in temporary or |
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| permanent global form or both, (ii) whether beneficial owners of interests in any such global security may exchange such interests for debt securities of the same series and of like tenor and of any authorized form and denomination, and the circumstances under which any such exchanges may occur, if other than in the manner specified in the indenture, (iii) the name of the depository with respect to any such global security and (iv) if applicable and in addition to the persons specified in the indenture, the person or persons who shall be entitled to make any endorsements on any such global security and to give the instructions and take the other actions with respect to such global security contemplated in the indenture; |
| (4) | the date or dates, or the method or methods, if any, by which such date or dates shall be determined, on which the principal of, and any premium on, such debt securities will be payable; |
| (5) | the rate or rates at which such debt securities shall bear interest, if any, or the method or methods, if any, by which such rate or rates are to be determined, the date or dates, if any, from which such interest shall accrue or the method or methods, if any, by which such date or dates are to be determined, the interest payment dates, if any, on which such interest shall be payable and the regular record date, if any, for the interest payable on such debt securities on any interest payment date, the notice, if any, to holders regarding the determination of interest on a floating rate security and the manner of giving such notice, and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day months; |
| (6) | if in addition to or other than the corporate trust office of the trustee, the place or places where the principal of, or any premium and interest on, such debt securities shall be payable, any of such debt securities may be surrendered for registration of transfer or exchange and notices or demands to or upon the Issuer in respect of such debt securities and the indenture may be served; |
| (7) | whether any of such debt securities are to be redeemable at the option of the Issuer and, if so, the date or dates on which, the period or periods within which, the price or prices at which, and the other terms and conditions upon which, such debt securities may be redeemed, in whole or in part, at the option of the Issuer; |
| (8) | if the Issuer is obligated to redeem or repay any of such debt securities pursuant to any sinking fund or analogous provision or at the option of any holder thereof, or otherwise, and, if so, the date or dates on which, the period or periods within which, the price or prices at which, and the other terms and conditions upon which such debt securities shall be redeemed or repaid, in whole or in part, pursuant to such obligation, and any provisions for the remarketing of such debt securities so redeemed or purchased; |
| (9) | the denominations in which any of such debt securities shall be issuable if other than minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof; |
| (10) | whether such debt securities will be convertible into, and/or exchangeable for, any securities or other property and, if so, the terms and conditions upon which such debt securities will be so convertible and/or exchangeable, and any deletions from or modifications of or additions to the indenture to permit or to facilitate the issuance of such convertible and/or exchangeable debt securities or the administration thereof; |
| (11) | if other than the principal amount thereof, the portion of the principal amount of any of such debt securities that shall be due and payable upon acceleration of the maturity thereof, or the method by which such portion is to be determined; |
| (12) | if other than U.S. dollars, the foreign currency in which purchases of such debt securities must be made and the foreign currency in which payment of the principal of, and any premium or interest on, such debt securities shall be payable; |
| (13) | if the principal of, or any premium or interest on, such debt securities are to be payable, at the election of the Issuer or a holder thereof or otherwise, in a currency other than that in which such debt securities |
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| are stated to be payable, the date or dates on which, the period or periods within which, and the other terms and conditions upon which, such determination may or shall be made, and the time and manner of determining the exchange rate between the currency in which such debt securities are stated to be payable and the currency in which such debt securities or any of them are to be paid pursuant to such determination, and any deletions from or modifications of or additions to the terms of the indenture to provide for or to facilitate the issuance of debt securities denominated or payable, at the election of the Issuer or a holder thereof or otherwise, in a foreign currency; |
| (14) | if the amount of payments of principal of, or any premium or interest on, such debt securities may be determined with reference to an index, formula or other method or methods (which index, formula or method or methods may be based, without limitation, on one or more currencies, commodities, equity indices or other indices), and, if so, the terms and conditions upon which, and the manner in which, such amounts shall be determined and paid or payable; |
| (15) | any deletions from, modifications of or additions to the events of default or covenants of the Issuer with respect to any of such debt securities (whether or not such events of default or covenants are consistent with the events of default or covenants described herein); |
| (16) | if (i) any one or more of the indenture provisions relating to satisfaction and discharge or legal defeasance shall not be applicable to such debt securities, (ii) there shall be covenants of the Issuer that shall be subject to covenant defeasance and, if so, which such covenants, (iii) such debt securities are subject to repayment at the option of the holders thereof, whether the Issuer’s obligation to repay such debt securities will be subject to satisfaction and discharge, legal defeasance and/or covenant defeasance under the indenture, and(iv) the holders of such debt securities have the right to convert and/or exchange such debt securities into any securities or other property, whether the right to effect such conversion and/or exchange will be subject to satisfaction and discharge, legal defeasance and/or covenant defeasance under the indenture, and any deletions from, or modifications of or additions to the satisfaction and discharge, legal defeasance and/or covenant defeasance provisions of the indenture (including any modification which would permit satisfaction and discharge, legal defeasance and/or covenant defeasance to be effected with respect to less than all of the outstanding debt securities of such series) in respect of such debt securities; |
| (17) | if any of such debt securities are to be issuable upon the exercise of warrants, and the time, manner and place for such debt securities to be authenticated and delivered; |
| (18) | if any of such debt securities are issuable in global form and are to be issuable in definitive form (whether upon original issuance or upon exchange of a temporary debt security) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then the form and terms of such certificates, documents or conditions; |
| (19) | the circumstances under which the Issuer will pay additional amounts in respect of such debt securities with respect to any tax, assessment or other government charge and whether the Issuer will have the option to redeem such debt securities rather than trigger the requirement for the payment of such additional amounts; |
| (20) | if there is more than one trustee, the identity of the trustee that has any obligations, duties and remedies with respect to such debt securities and, if not the trustee, the identity of each security registrar, paying agent or authenticating agent with respect to such debt securities; |
| (21) | the person to whom any interest on such debt securities shall be payable, if other than the person in whose name any such debt security (or one or more predecessor securities) is registered at the close of business on the regular record date for such interest, the manner in which, or the person to whom, and the extent to which, or the manner in which, any interest payable on a temporary global security will be paid if other than in the manner provided in the indenture; |
| (22) | if such debt securities shall constitute subordinated indebtedness and, if so, the definition of senior indebtedness and the applicability of other subordination provisions relating thereto, and any deletions |
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| from or modifications of or additions to the indenture to permit or to facilitate the issuance of such subordinated debt securities or the administration thereof; and |
| (23) | any other terms of such debt securities and any deletions from or modifications of or additions to the indenture in respect of such debt securities. |
Except as described herein under “—Merger, Consolidation or Sale,” or as otherwise described in the applicable prospectus supplement relating to the debt securities of any series, an indenture will not contain any other provisions that would limit the ability of the Issuer and its subsidiaries to incur indebtedness or to substantially reduce or eliminate our assets, which may have a material adverse effect on the ability of the Issuer to service its indebtedness (including the debt securities) or that would afford holders of such debt securities protection from a material adverse effect resulting from:
| (1) | a highly leveraged or similar transaction involving the Issuer, or its management, or any affiliate of any of those parties; |
| (2) | a change of control involving the Issuer; or |
| (3) | a reorganization, restructuring, merger or similar transaction involving the Issuer; |
Furthermore, subject to the limitations set forth herein under “—Merger, Consolidation or Sale” or as otherwise described in the prospectus supplement relating to the debt securities of any series, the Issuer may, in the future, enter into certain transactions, such as the sale of all or substantially all of the assets of the Issuer or a merger or consolidation involving the Issuer, that would significantly increase the leverage of the Issuer or eliminate or otherwise substantially reduce the assets of the Issuer, which may have a material adverse effect on the ability of the Issuer to service its indebtedness (including the debt securities).
Denominations, Interest, Registration and Transfer
Unless otherwise described in the applicable prospectus supplement, the debt securities of any series will be issuable in denominations of $2,000 and integral multiples of $1,000.
Unless otherwise described in the applicable prospectus supplement and except to the extent the debt securities of any series are issued in book-entry form and held by or on behalf of a depository with arrangements to the contrary, the principal of, and any premium and interest on, the debt securities of any series will be payable at any office or agency applicable to such payments, provided that, at the option of the Issuer, payment of interest may be made by check mailed to the address of the person entitled thereto as it appears in the security register or by wire transfer of funds to that person at an account maintained within the United States.
Any interest not punctually paid or duly provided for on any interest payment date with respect to a debt security will forthwith cease to be payable to the holder of such debt security on the applicable regular record date and may either be paid to the person in whose name such debt security is registered at the close of business on a special record date for the payment of the interest not punctually paid or duly provided for, to be fixed by the trustee, notice whereof shall be given to the holder of such debt security not less than 10 days prior to the special record date, or may be paid at any time in any other lawful manner if such payment is deemed practicable by the trustee, all as more completely described in the indenture.
Subject to certain limitations imposed upon debt securities issued in book-entry form, the debt securities of any series, at the option of the holders thereof, will be exchangeable for other debt securities of the same series and of a like aggregate principal amount and tenor of different authorized denominations upon surrender of those debt securities at any office or agency applicable to such exchanges. In addition, subject to certain limitations imposed upon debt securities issued in book-entry form, the debt securities of any series may be surrendered for registration of transfer or exchange thereof at any office or agency applicable thereto. Every debt security surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written
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instrument of transfer in a form satisfactory to the Issuer. No service charge will be imposed for any registration of transfer or exchange of any debt securities, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with any registration of transfer or exchange of debt securities other than certain exchanges specified in the indenture that do not involve a transfer. The Issuer may from time to time designate one or more offices or agencies in addition to, or in lieu of the corporate trust office of the trustee, as well as rescind any such designation, where debt securities may be presented or surrendered for payment or for registration of transfer or exchange, except that the Issuer will be required to maintain a an office or agency in each specified place of payment for such debt securities.
Neither the Issuer nor any trustee shall be required to:
| (1) | issue, register the transfer of or exchange the debt securities of any series during a period beginning at the opening of business 15 days before any selection of such debt securities to be redeemed and ending at the close of business on the day of mailing of the relevant notice of redemption; |
| (2) | register the transfer of or exchange any debt security, or portion thereof, selected for redemption, except for the unredeemed portion of any debt security being redeemed in part; or |
| (3) | issue, register the transfer of or exchange any debt security which has been surrendered for repayment at the option of the holder of such debt security, except for the portion, if any, of that debt security not to be so repaid. |
Merger, Consolidation or Sale
Except as otherwise described in an applicable prospectus supplement, under the terms of an indenture, the Issuer may not, in any transaction or series of related transactions, consolidate or amalgamate with or merge with or into any person or sell, assign, transfer, lease or otherwise convey all or substantially all its assets to any person unless:
| (1) | either (A) the Issuer shall be the continuing, successor or surviving person, or (B) the successor person (if other than the Issuer) formed by or resulting from such consolidation, amalgamation or merger, or to whom such sale, assignment, transfer, lease or other conveyance is made, (i) shall be a corporation, limited liability company, partnership or other entity organized and existing under the laws of the United States of America, any state thereof or the District of Columbia or any territory of the United States of America and (ii) shall expressly assume the due and punctual performance and observance of every obligation in the indenture and the outstanding debt securities on the part of the Issuer to be performed or observed; |
| (2) | immediately after giving effect to such transaction or series of related transactions, no event of default, and no event which, after notice or lapse of time, or both, would become an event of default, shall have occurred and be continuing; and |
| (3) | the Issuer shall have delivered to the trustee an officers’ certificate and a legal opinion, each stating that such consolidation, amalgamation, merger, sale, assignment, transfer, lease or other conveyance complies with the indenture and that all conditions precedent in the indenture provided for relating to such transaction or series of related transactions have been complied with. |
For purposes of the foregoing, any sale, assignment, transfer, lease or other conveyance of all or any of the assets of one or more subsidiaries of the Issuer or another subsidiary, whether directly or as part of a consolidation, amalgamation or merger, which, if such assets were owned by the Issuer would constitute all or substantially all of the assets of the Issuer, shall be deemed to be the conveyance of all or substantially all of the assets of the Issuer to any such person under the indenture.
If the Issuer shall, in any transaction or series of related transactions, consolidate or amalgamate with or merge with or into any person or sell, assign, transfer, lease or otherwise convey all or substantially all its assets to any
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person, in accordance with the indenture, the successor person formed by or resulting from such consolidation, amalgamation or merger or to whom such sale, assignment, transfer, lease or other conveyance is made, shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under the indenture, with respect to the outstanding debt securities, with the same effect as if such successor person had been named as the Issuer in the indenture; and thereafter, except in the case of a lease, the predecessor person shall be released from all obligations and covenants under indenture and the outstanding debt securities.
Covenants
The applicable prospectus supplement for the debt securities of any series will describe any important covenants applicable to such debt securities.
Events of Default, Notice and Waiver
Unless otherwise specified in the applicable prospectus supplement relating to the debt securities of any series, any of the following events are events of default with respect the debt securities of such series:
| (1) | default in the payment of any interest on any debt security of such series when due and the continuance of such default for 30 days; |
| (2) | default in the payment of the principal of, or any premium on, any debt security of such series when due at maturity or otherwise; |
| (3) | default in deposit of any sinking fund payment, if applicable, for any debt security of such series when due; |
| (4) | default in the performance or observance, or breach, of any covenant or other agreement of the Issuer in the indenture or any debt security of such series (other than one for which the consequences of a default or breach are addressed under another clause described herein under “—Events of Default, Notice and Waiver” or one added to the indenture solely for the benefit of the debt securities of a series other than such series), and the continuance of such default or breach for a period of 60 days after written notice of such default or breach is given to the Issuer by the trustee or to the Issuer and the trustee by the holders of not less than 25% in principal amount of the outstanding debt securities of such series and requiring such payment or other default to be remedied; |
| (5) | certain events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of the Issuer occur; |
| (6) | if the debt securities of such series are entitled to the benefits of any guarantee, such guarantee is not, or is claimed by the applicable guarantor to not be, in full force and effect at any time; and |
| (7) | any other event of default provided in or pursuant to the indenture with respect to the debt securities of such series. |
Within 30 days after becoming aware of the occurrence of any event of default under the indenture, or any default that with notice or the lapse of time, or both, would be an event of default under the indenture, the Issuer is required to notify the trustee in writing setting forth the details of such event of default or default, as the case may be, its status and the action that the Issuer is taking or proposes to take, if any, in respect thereof.
If an event of default other than an event of default under clause (5) above with respect to debt securities of any series occurs and is continuing, then the trustee or the holders of not less than 25% in principal amount of the outstanding debt securities of such series may declare the principal of, and any premium due on, or such lesser amount as may be provided for in the terms of the debt securities of such series, and any accrued and unpaid interest on, all of the debt securities of such series to be due and payable immediately by written notice thereof to the Issuer and to the trustee if such notice is given by the holders of such debt securities. However, at any time
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after a declaration of acceleration with respect to the debt securities of such series has been made, but before a judgment or decree for payment of the money due has been obtained by the trustee, the holders of a majority in principal amount of the outstanding debt securities of such series, by written notice to the Issuer, may rescind and annul such declaration and its consequences if:
| (1) | the Issuer shall have deposited with the trustee all overdue payments of the principal of, and any premium and interest on, the debt securities of such series other than solely as a result of such declaration of acceleration, plus certain fees, expenses, disbursements and advances of the trustee and its agents and counsel, and |
| (2) | all events of default, other than the non-payment of the principal thereof and any premium and interest thereon with respect to debt securities of such series which shall have become due and payable solely as a result of such declaration of acceleration, shall have been cured or waived under the indenture. |
No such rescission shall affect any subsequent default or impair any right consequent thereon.
If an event of default under clause (5) above with respect to the debt securities of any series occurs, then the principal of, and any premium due on, or such lesser amount as may be provided for in the terms of the debt securities of such series, and any accrued and unpaid interest on, the debt securities of such series shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the trustee or any holder of debt securities of such series.
The holders of a majority in principal amount of the outstanding debt securities of any series may waive any continuing default with respect to such debt securities and its consequences, except a default in the payment of the principal of, or any premium or interest on, any debt security of such series, or in respect of a covenant or provision contained in the indenture that cannot be modified or amended without the consent of the holder of each outstanding debt security affected thereby. Upon any such waiver, such default shall cease to exist, and any event of default arising therefrom shall be deemed to have been cured but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Within 60 days after the trustee has actual knowledge of the occurrence of any default or event of default with respect to the debt securities of any series unless such default or event of default has been cured or waived under the indenture, the trustee is required to give written notice to the holders of the debt securities of such series within 90 days of a default under the indenture. The trustee shall not be charged with actual knowledge of any default or event of default unless (i) a responsible officer of the trustee shall have actual knowledge of such default or event of default or (ii) the trustee shall have received written notice of such default or event of default by the Issuer or by the holders of not less than 25% in principal amount of the outstanding debt securities of such series, and such notice is received by the trustee its corporate trust office, and such notice references the debt securities of such series. Subject to provisions in the indenture relating to its duties in case of a default with respect to the debt securities of any series, the trustee is under no obligation to exercise any of its rights or powers vested in it under the indenture at the request or direction of any holders of the debt securities of such series, unless those holders shall have offered to the trustee security or indemnity reasonably satisfactory to it.
No holder of any debt security of any series may institute any proceeding, judicial or otherwise, with respect to the indenture or such debt security, or for the appointment of a receiver or trustee, or for any remedy thereunder, unless: (1) such holder has previously given written notice to the trustee of a continuing event of default with respect to the debt securities of such series; (2) the holders of not less than 25% in principal amount of the outstanding debt securities of such series have made written request to the trustee to institute a proceeding in respect of such event of default in its own name as trustee; (3) such holder(s) have offered to the trustee indemnity or security reasonably satisfactory to it against the losses, damages, costs, expenses and liabilities to be incurred in compliance with such request; (4) the 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 the trustee during such 60-day period by the holders of a majority in principal
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amount of the outstanding debt securities of such series; it being understood and intended that no one or more of such holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of the indenture or any debt security to affect, disturb or prejudice the rights of any other such holders or holders of the debt securities of any other series, or to obtain or to seek to obtain priority or preference over any other holders or to enforce any right under the indenture, except as otherwise provided in the indenture and for the equal and ratable benefit of all such holders.
The holders of a majority in principal amount of the outstanding debt securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred upon the trustee with respect to the debt securities of such series. However, the trustee may refuse to follow any direction which (1) is in conflict with any law or the indenture or the debt securities of any series, (2) is inconsistent with other action the trustee deems to be proper or (3) may be unduly prejudicial to the rights of other holders of debt securities of such series (or any other series) not joining therein.
Notwithstanding the foregoing, the holder of any debt security may institute suit for the enforcement of payment of the principal of, and any premium and interest on, such debt security at the respective due dates thereof.
Within 120 days after the close of each fiscal year, the Issuer must deliver to the trustee a written statement of two specified officers as to whether, to their knowledge, (i) there is a default by the Issuer in the performance and observance of the indenture or the outstanding debt securities (without regard to notice requirements and/or periods of grace) or (ii) there is a default which, with notice or the lapse of time or both, would become an event of default or an event of default has occurred or is continuing, and specifying all such defaults and events of default and the nature and status thereof; provided that any default that results solely from the taking of an action that would have been permitted but for the continuation of a previous default will be deemed to be cured if such previous default is cured prior to becoming an event of default.
Modification
Modifications and amendments of the indenture and any debt securities may be made by the Issuer and the trustee only with the consent of the holders of a majority in principal amount of the outstanding debt securities of each series affected by such modification or amendment (voting as separate classes); provided, however, that no such modification or amendment may, without the consent of the holder of each outstanding debt security affected thereby:
| (1) | change the stated maturity of the principal of, or any premium or interest on, such debt security, or reduce the principal amount of, or any premium on, or the rate or rates (or change the calculation of the rate or rates) of interest on, such debt security; |
| (2) | reduce (or change the manner of calculating) the amount payable upon the redemption or repayment of any such debt security, or change any date on, or period during which, any such debt security is subject to optional or mandatory redemption or repayment or otherwise alter the provisions relating thereto in a manner adverse to the interests of the holder or beneficial owners thereof; |
| (3) | reduce the amount of principal of an original issue discount security that would be due and payable upon acceleration of the maturity thereof or would be provable in bankruptcy; |
| (4) | change the place of payment where, or the currency in which the payment of principal of, or any premium or interest on, such debt security is payable; |
| (5) | impair the right to institute suit for the enforcement of any payment due with respect to such debt security; |
| (6) | reduce the percentage in principal amount of the outstanding debt securities of any series the consent of whose holder is necessary to modify or amend the indenture or to waive compliance with certain provisions thereof or certain defaults and consequences thereunder provided for in the indenture; |
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| (7) | modify any of the foregoing provisions or any of the provisions relating to the waiver of certain covenants thereof or certain defaults and consequences thereunder, except to increase the percentage in principal amount of the outstanding debt securities of any series the consent of whose holders is necessary therefor or to provide that certain other provisions of the indenture may not be modified or waived without the consent of the holder of each outstanding debt security affected thereby; or |
| (8) | reduce the quorum or voting requirements set forth in the indenture. |
The holders of a majority in principal amount of outstanding debt securities of any series have the right, to the extent specified in the applicable prospectus supplement, to waive prospective compliance by the Issuer with one or more covenants applicable to the debt securities of such series either in specific circumstances or generally.
Modifications and amendments of the indenture and any debt securities may be made by the Issuer and the trustee without the consent of any holder of debt securities of any series for any of the following purposes:
| (1) | to evidence the succession of another person to the Issuer and the assumption by any such succession of the covenants of the Issuer in the indenture and any debt securities; |
| (2) | to add to the covenants of the Issuer for the benefit of the holders of the debt securities of all or any series or to surrender any right or power conferred upon the Issuer with respect to the debt securities of all or any series; |
| (3) | to add events of default for the benefit of the holders of the debt securities of all or any series; |
| (4) | to change or eliminate any payment restrictions in respect of any debt securities or to permit or to facilitate the issuance of debt securities in global or uncertificated form, provided that any such action shall not adversely affect the interests of any holder or beneficial owner of any outstanding debt security of any series; |
| (5) | to amend or supplement any provision in the indenture or any debt securities, provided that any such action does not apply to any outstanding debt securities of any series which are entitled to the benefit of, or subject to, such provision; |
| (6) | to secure the debt securities or to secure or add guarantees for the benefit of the debt securities of all or any series; |
| (7) | to establish the form or terms of debt securities of any series, including the provisions and procedures, if applicable, for the conversion and/or exchange of those debt securities into any securities or other property; |
| (8) | to evidence and provide for the acceptance of appointment by a successor trustee with respect to the debt securities of one or more series and to add to or change provisions necessary to provide for or facilitate the administration of the trusts under the indenture by more than one trustee; |
| (9) | to cure any mistake or ambiguity, or to correct or supplement any defect or inconsistency in the indenture or any debt securities or to make any other provisions with respect to matters or questions arising thereunder, or to make any change necessary to comply with the Trust Indenture Act, provided that any such action shall not adversely affect the interests of any holder or beneficial owner of any outstanding debt security of any series; |
| (10) | to supplement any of the provisions of the indenture to the extent necessary to permit or facilitate the legal defeasance, covenant defeasance and/or satisfaction and discharge of the debt securities of any series, provided that any such action shall not adversely affect the interests of any holder or beneficial owner of any outstanding debt security of any series; |
| (11) | to conform the terms of the indenture or the debt securities of any series to the description thereof contained in any prospectus, prospectus supplement, term sheet or other offering document relating to the offer and sale of such debt securities; or |
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| (12) | to make any change necessary to comply with the applicable rules or procedures of the depository, if any, or any rules or regulations of any securities exchange or automated quotation system on which any of the debt securities may be listed or traded, in each case which shall not adversely affect the interests of any holder or beneficial owner of any outstanding debt security of any series. |
The indenture may provide that in determining whether the holders of the requisite principal amount of outstanding debt securities of any series have given any request, demand, authorization, direction, notice, consent or waiver thereunder or whether a quorum is present at a meeting of holders of debt securities:
| (1) | the principal amount of an original issue discount security that shall be deemed to be outstanding shall be the amount of the principal thereof that would be due and payable prior to its stated maturity at the date of that determination; |
| (2) | the principal amount of a debt security denominated in a foreign currency that shall be deemed outstanding shall be the U.S. Dollar equivalent, determined at original issuance, of the principal amount thereof (or, in the case of an original issue discount security, the U.S. Dollar equivalent at original issuance of such debt security of the amount determined as provided in clause (1) above); |
| (3) | the principal amount of an indexed security that shall be deemed outstanding shall be the principal amount of such indexed security at original issuance, unless otherwise provided with respect to the terms of such indexed security; and |
| (4) | debt securities owned by the Issuer or any other obligor in respect of the debt securities or any affiliate of the Issuer or such other obligor shall be disregarded. |
The indenture may contain provisions for convening meetings of the holders of debt securities of any series to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action contemplated under the indenture. A meeting for any such purpose may be called at any time by the trustee and also, upon request, by the Issuer or the holders of at least 10% in principal amount of the outstanding debt securities of such series upon written notice.
The holders of a majority in principal amount of the outstanding debt securities of any series shall constitute a quorum for any meeting of holders of the debt securities of such series; provided, however, that if any action is to be taken with respect to a matter that the indenture expressly provides may only be given by the consent of the holders of a supermajority in principal amount of the outstanding debt securities of any series, then the holders of the specified supermajority in principal amount of the debt securities of such series shall constitute a quorum.
Except for any consent that must be given by the holder of each debt security affected by modifications and amendments of the indenture, any resolution presented to the holders of the debt securities of any series at a meeting at which a quorum is present may be adopted by the affirmative vote of the holders of a majority in principal amount of the outstanding debt securities of such series; provided, however, that, except as referred to above, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action that may be made, given or taken by the holders of a specified percentage, which is greater or less than a majority, in principal amount of the outstanding debt securities of a series may be adopted at a meeting at which a quorum is present by the affirmative vote of the holders of such specified percentage in principal amount of the outstanding debt securities of such series. Any resolution passed or decision taken at any meeting of holders of debt securities of any series duly held in accordance with the indenture will be binding on all holders of debt securities of such series.
Discharge, Legal Defeasance and Covenant Defeasance
The indenture shall cease to exist with respect to the debt securities of any series when (1) all debt securities of such series other than (A) debt securities of such series which have been discharged, lost or stolen and which have been replaced or paid and (B) debt securities of such series for whose payment money has been deposited in
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trust or segregated and held in trust and thereafter repaid to the Issuer or discharged from such trust have been delivered to the trustee for cancellation or (2) all debt securities of such series not already delivered to the trustee for cancellation (A) have become due and payable, (B) will become due and payable within one year, or (C) if redeemable at the option of the Issuer, are to be called for redemption within one year under arrangements reasonably satisfactory to the trustee for the giving of notice of redemption by the trustee, and the Issuer has irrevocably deposited with the trustee, in trust for holders of such debt securities, money in the currency in which such debt securities is payable in an amount sufficient to pay the entire indebtedness represented by such debt securities, including the principal of, and any premium and interest on, such debt securities to the date of such deposit (if such debt securities have become due and payable) or to the maturity or earlier redemption of such debt securities.
Unless the terms of the debt securities of any series provide otherwise, the Issuer may elect:
| (1) | to defease and be discharged from any and all of its obligations with respect to such debt securities, except for (A) the rights of holders of such debt securities to receive payments of principal thereof and any premium and interest thereon then due ratably from the trust funds, (B) the obligations to register the transfer or exchange of such debt securities, and to replace temporary or mutilated, destroyed, lost or stolen debt securities, (C) the obligations to maintain an office or agency in respect of such debt securities, and (D) any rights of holders of such debt securities to repurchase or repay at their option, and the obligations of the Issuer to repurchase or repay such debt securities upon exercise of such option or otherwise (“legal defeasance”); or |
| (2) | if so provided in the terms of the debt securities of such series, to be released from its obligations with respect to any covenant so specified in the applicable prospectus supplement, and any omission to comply with those obligations shall not constitute a default or an event of default with respect to such debt securities (“covenant defeasance”). |
The following shall be the conditions to the legal defeasance or covenant defeasance with respect to any outstanding debt securities of or within a series:
| (a) | The Issuer shall irrevocably have deposited with the trustee, in trust for the holders of such debt securities, (1) an amount of money in the currency in which such debt securities are then specified as payable at their stated maturities or, if such legal defeasance or covenant defeasance is to be effected in compliance with subsection (f) below, on the relevant redemption date, as the case may be, (2) Government Obligations (as defined below) applicable to such debt securities (determined on the basis of the currency in which such debt securities are then specified as payable at their stated maturities or, if such legal defeasance or covenant defeasance is to be effected in compliance with subsection (f) below, on the relevant redemption date, as the case may be) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide money in an amount, or (3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the written opinion of a nationally recognized firm of independent public accountants or a nationally recognized investment bank delivered to the trustee, to pay and discharge, and which shall be applied by the trustee to pay and discharge, (y) the principal of, and any premium and interest on, such debt securities at the stated maturities of such principal and interest, and (z) any mandatory sinking fund payments or analogous payments applicable to such outstanding debt securities on the day on which such payments are due and payable in accordance with the terms of the indenture and such debt securities. |
| (b) | Such legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, the indenture or any other material agreement or instrument to which the Issuer is a party or by which it is bound. |
| (c) | No event of default or event which, with notice or lapse of time or both, would become an event of default with respect to such debt securities shall have occurred and be continuing on the date of such |
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| deposit, and, solely in the case of legal defeasance, no event of default with respect to such debt securities under clause (5) under “—Events of Default, Notice and Waiver” above or event which with notice or lapse of time or both would become an event of default with respect to such debt securities under clause (5) under “—Events of Default, Notice and Waiver” above shall have occurred and be continuing at any time during the period ending on and including the 91st day after the date of such deposit. |
| (d) | In the case of legal defeasance, the Issuer shall have delivered to the trustee an opinion of counsel stating that (x) the Issuer has received from, or there has been published by, the U.S. Internal Revenue Service a ruling, or (y) since the date of the indenture, there has been a change in applicable U.S. federal income tax law, in either case to the effect that, and based thereon such opinion of counsel shall confirm that, the holders and beneficial owners of such outstanding debt securities 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; or, in the case of covenant defeasance, the Issuer shall have delivered to the trustee an opinion of counsel to the effect that the holders and beneficial owners of such debt securities 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 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 covenant defeasance had not occurred. |
| (e) | The Issuer shall have delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that all conditions precedent to the legal defeasance or covenant defeasance, as the case may be, under the indenture have been compiled with. |
| (f) | If the monies or Government Obligations or combination thereof, as the case may be, deposited under subsection (a) above are sufficient to pay the principal of, and any premium and interest on, such debt securities on a particular redemption date, the Issuer shall have given the trustee irrevocable instructions to redeem such debt securities on such date and to provide notice of such redemption to holders thereof as provided in or pursuant to the indenture. |
“Government Obligations” means securities which are:
| (1) | direct obligations of the United States of America or such other government which issued the foreign currency in which the principal of, or any premium and interest on, the debt securities of a particular series is payable, in each case where the payment is supported by the full faith and credit of the United States of America or such other government, as applicable; or |
| (2) | obligations of a person controlled or supervised by, and acting as an agency or instrumentality of, the United States of America or such other government which issued the foreign currency in which the principal of, or any premium and interest on, the debt securities of such series is payable, in each case where the timely payment thereunder is unconditionally guaranteed as a full faith and credit obligation by the United States of America or such other government, as applicable, |
which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on, or principal of, or other amount with respect to, any such Government Obligation held by the custodian for the account of the holder of a depository receipt, provided that (except as required by law) the custodian is not authorized to make any deduction from the amount payable to the holder of the depository receipt from any amount received by the custodian in respect of such Government Obligation or the specific payment of interest on, principal of, or other amount with respect to, such Government Obligation evidenced by the depository receipt.
In the event we effect covenant defeasance with respect to the debt securities of any series and such debt securities are declared due and payable because of the occurrence of any event of default other than the event of
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default described in clause (4) under “—Events of Default, Notice and Waiver” above in respect of any covenant specified in the applicable prospectus supplement as to which such debt securities are subject to covenant defeasance, the funds in trust with the trustee may not be sufficient to pay amounts due in respect of such debt securities at the time of the acceleration resulting from such event of default since those funds were intended to be sufficient to pay amounts due in respect of such debt securities only at the time of their stated maturities. However, the Issuer would remain liable to make payment of those amounts due at the time of acceleration.
Conversion or Exchange Rights
The terms and conditions, if any, upon which the debt securities of a series may be convertible into, and/or exchangeable for, securities or other property will be set forth in the applicable prospectus supplement relating to such debt securities. Those terms will include details on the securities or other property into or for which such debt securities are convertible and/or exchangeable, the conversion and/or exchange price (or manner of calculation thereof), the conversion and/or exchange date(s) or period(s) (or manner of determining the same), the provisions as to whether, and upon what terms, any conversion and/or exchange will be mandatory or at the option of the Issuer or the option of the holders of such debt securities, the provisions requiring an adjustment to the conversion and/or exchange price and the provisions affecting conversion and/or exchange in the event of the redemption of such debt securities.
Trustee
We intend to name the indenture trustee for each series of debt securities in the applicable prospectus supplement.
Global Securities
The debt securities of a series may be issued in whole or in part in the form of one or more global securities that will be deposited with, or on behalf of, the depositary identified in the applicable prospectus supplement relating to such debt securities. Global securities may be issued in either registered or bearer form and in either temporary or permanent form. The applicable prospectus supplement will describe the terms of the depositary arrangement with respect to such debt securities.
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Pursuant to the Registration Rights Agreement, certain of our stockholders are entitled to rights with respect to the registration of their shares under the Securities Act. These registration rights include the right to demand that we file with the SEC a registration statement on Form S-3 covering the registration of their registrable securities for resale, subject to certain conditions. In accordance with this obligation, this prospectus covers the possible resale or other disposition from time to time by the Selling Stockholders identified in the table below and their respective permitted transferees, pledgees, distributees, donees or other successors-in-interest of up to an aggregate of 120,453,642 shares of our common stock, which represent the Selling Stockholder Shares. The Selling Stockholders may from time to time offer and sell, transfer or otherwise dispose of any or all of the Selling Stockholder Shares set forth below pursuant to this prospectus and any accompanying prospectus supplement.
We are registering the Selling Stockholder Shares to permit the Selling Stockholders and their respective transferees, pledgees, distributees, donees or other successors-in-interest that receive their shares after the date of this prospectus to resell or otherwise dispose of the shares in the manner contemplated under “Plan of Distribution” herein.
For more information about our relationships with the Selling Stockholders and their affiliates, see “Certain Relationships and Related Party Transactions” in our definitive proxy statement on Schedule 14A, filed with the SEC on April 8, 2025, which is incorporated by reference herein. Except as otherwise disclosed herein or in a filing incorporated by reference herein, the Selling Stockholders do not have, and within the past three years have not had, any position, office or other material relationship with us.
The table below sets forth the number of shares of our common stock beneficially owned by the Selling Stockholders, the number of shares of our common stock that may be offered under this prospectus and the number of shares of our common stock beneficially owned by the Selling Stockholders assuming all of the shares covered hereby are sold. Percentage ownership of our common stock is based on 143,106,447 shares of our common stock issued and outstanding as of August 4, 2025. We have determined beneficial ownership in accordance with the rules of the SEC. Thus, it represents sole or shared voting or investment power with respect to our securities, and the information is not necessarily indicative of beneficial ownership for any other purpose. Unless otherwise indicated below, to our knowledge, the persons and entities named in the table have sole voting and sole investment power with respect to all shares that they beneficially owned, subject to community property laws where applicable. We have deemed all of the shares of our common stock subject to time-vesting restricted stock units (“RSUs”) that will vest within 60 days of August 4, 2025 to be outstanding and beneficially owned by the person or entity holding the RSUs for the purpose of computing the percentage ownership of that person or entity but have not treated them as outstanding for the purpose of computing the percentage ownership of any other person or entity.
The Selling Stockholders may sell, transfer or otherwise dispose of some, all or none of the shares of our common stock that may be offered hereunder. We do not know when the shares of our common stock will be sold, transferred or otherwise disposed of by the Selling Stockholders, and the Selling Stockholders may offer the shares of our common stock from time to time.
Unless otherwise indicated below, the address of each Selling Stockholder listed in the table is c/o Ardent Health, Inc., 340 Seven Springs Way, Suite 100, Brentwood, Tennessee 37027.
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The information set forth in the table below is based upon information obtained from the Selling Stockholders and upon information known to us.
| Shares of Common Stock |
Shares of Common That May be Sold |
Shares of Common Stock Owned After Sale of All Common Stock That May be Sold Hereunder(1) |
||||||||||||||||||
| Name of Selling Stockholder | Shares | Percentage | Shares | Percentage | ||||||||||||||||
|
EGI-AM(2) |
77,246,499 | 54.0 | % | 77,246,499 | — | — | ||||||||||||||
| Pure Health(3) |
30,262,664 | 21.1 | % | 30,262,664 | — | — | ||||||||||||||
| Ventas(4) |
9,342,501 | 6.5 | % | 9,342,501 | — | — | ||||||||||||||
| David Vandewater(5) |
1,767,959 | 1.2 | % | 1,767,959 | — | — | ||||||||||||||
| Stephen C. Petrovich(6) |
1,051,089 | * | 1,043,423 | 7,666 | * | |||||||||||||||
| Neil Hemphill(7) |
790,596 | * | 790,596 | — | — | |||||||||||||||
| * | Less than 1% |
| (1) | Assumes that each of the Selling Stockholders sells all of their Selling Stockholder Shares covered by this prospectus and does not acquire beneficial ownership of any additional shares of our common stock. |
| (2) | Each of EGI-AM Investor, L.L.C., the manager of EGI-AM, and Chai Trust Company, LLC, the managing member of EGI-AM Investor, L.L.C., shares voting and dispositive power over the 77,246,499 shares held by EGI-AM. The address of these entities is Two North Riverside Plaza, Suite 600, Chicago, Illinois 60606. |
| (3) | Each of (i) Pure Health, (ii) Pure Health Holding PJSC, a public joint stock company whose shares are listed on the Abu Dhabi Securities Exchange and the ultimate parent of Pure Health, (iii) Pure Health Capital LLC, the sole shareholder of Pure Health, and (iv) Pure Health Medical Supplies LLC, the controlling member of Pure Health Capital LLC, share voting and dispositive power over the 30,262,664 shares held by Pure Health. The address for Pure Health is 2462 RsCo-work01, 24th Floor, Al Sila Tower, Abu Dhabi Global Market Square, Al Maryah Island, Abu Dhabi, United Arab Emirates (“UAE”). The address for Pure Health Holding PJSC is Al Dar Real Estate Investment L.L.C. Building, RBW11,0, Al Raha Beach, 2 Al Raha Street, Abu Dhabi, UAE. The address for Pure Health Medical Supplies LLC is Office Number 3401 Vision Tower, Al Khaleej Al Tejar Street 1, Business Bay, Dubai, UAE, PO. Box: 283572. The address for Pure Health Capital LLC is 2, Al Rahah Street, Al Rahah, Abu Dhabi, 23035, UAE. |
| (4) | Ventas is the sole stockholder of VTR AMS, Inc., the sole and managing member of ALH Holdings, LLC, and has sole voting and dispositive power over the 9,342,501 shares held by ALH Holdings, LLC. The address for Ventas is 300 N. LaSalle Street, Suite 1600, Chicago, Illinois 60654. |
| (5) | Includes (i) 836,833 shares of common stock held by PEDS Strategic Investments, LLC, of which Mr. Vandewater is the managing member, (ii) 465,563 shares of common stock held by The David T. Vandewater 2015 GST-Exempt Family Trust Dated 12/2/15 (the “DTV Trust”), of which Stephen T. Braun is the trustee, and (iii) 465,563 shares of common stock held by The Phyllis B. Vandewater 2015 GST-Exempt Family Trust Dated 12/2/2015 (the “PBV Trust”), of which Mr. Vandewater is the trustee. The address for PEDS Strategic Investments, LLC, the DTV Trust and the PBV Trust is 30 Burton Hills Blvd., #355, Nashville, Tennessee 37215. |
| (6) | Includes (i) 186,225 shares of common stock held by the Emilie K. Petrovich GST-2016 Exempt Family Trust, of which Mr. Petrovich is the trustee and Mr. Petrovich’s children are beneficiaries, and (ii) 186,225 shares of common stock held by the Stephen C. Petrovich GST-2016 Exempt Family Trust, of which Mr. Petrovich’s spouse is the trustee and Mr. Petrovich’s children are beneficiaries. Mr. Petrovich disclaims beneficial ownership of these securities, except to the extent of Mr. Petrovich’s pecuniary interests therein, if any. Mr. Petrovich’s beneficial ownership also includes 3,233 RSUs scheduled to vest on September 25, 2025. Mr. Petrovich is the Executive Vice President and General Counsel of the Company. |
| (7) | Includes (i) 640,596 shares of common stock held by the NHND Trust, of which Mr. Hemphill and his spouse are co-trustees and joint beneficiaries, (ii) 50,000 shares of common stock held by the Michael Tyler Hardin 2024 Trust (the “MTH Trust”), of which Mr. Hemphill is the settlor, his spouse is the trustee and his son Michael is the sole beneficiary, (iii) 50,000 shares of common stock held by the Robert Michael |
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| Hemphill 2024 Trust (the “RMH Trust”), of which Mr. Hemphill is the settlor, his spouse is the trustee and his son Robert is the sole beneficiary, and (iv) 50,000 shares of common stock held by The Hemphill Family Foundation, a Texas non-profit corporation, of which Mr. Hemphill serves as President and Chairman of the Board. Mr. Hemphill disclaims beneficial ownership of the securities held by the MTH Trust, RMH Trust and The Hemphill Family Foundation, except to the extent of Mr. Hemphill’s pecuniary interests therein, if any. The address for the MTH Trust, the RMH Trust and The Hemphill Family Foundation is 7739 Fair Oaks Parkway, Fair Oaks Ranch, Texas 78015. |
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Our Plan of Distribution
We may sell the securities covered by this prospectus in any one or more of the following ways from time to time:
| • | to or through one or more underwriters, brokers or dealers; |
| • | block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; |
| • | through agents to investors or the public; |
| • | in short or long transactions; |
| • | through put or call option transactions relating to our common stock; |
| • | directly to agents or other purchasers; |
| • | in “at the market offerings” within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker or into an existing trading market, on an exchange or otherwise; |
| • | though a combination of any such methods of sale; or |
| • | through any other method described in the applicable prospectus supplement. |
In addition, we may issue the securities as a dividend or distribution or in a subscription rights offering to our existing securityholders. This prospectus may be used in connection with any offering of our securities through any of these methods or other methods described in the applicable prospectus supplement.
We may directly solicit offers to purchase securities, or agents may be designated to solicit such offers. We will, in the prospectus supplement relating to such offering, name any agent that could be viewed as an underwriter under the Securities Act, and describe any commissions that we must pay. Any such agent will be acting on a best efforts basis for the period of its appointment or, if indicated in the applicable prospectus supplement, on a firm commitment basis.
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 from time to time; |
| • | at market prices prevailing at the time of sale; |
| • | at prices related to such prevailing market prices; or |
| • | at negotiated prices. |
The applicable prospectus supplement will set forth the terms of the offering and the method of distribution and will identify any firms acting as underwriters, dealers or agents in connection with the offering, including:
| • | the terms of the offering; |
| • | the names of any underwriters, dealers or agents; |
| • | the name(s) of any managing underwriter(s); |
| • | the purchase price of the securities and the proceeds to us from the sale; |
| • | any over-allotment options under which the underwriters may purchase additional securities from us; |
| • | any underwriting discounts, concessions, commissions or agency fees and other items constituting compensation to underwriters, dealers or agents; |
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| • | any delayed delivery arrangements; |
| • | any public offering price; |
| • | any discounts or concessions allowed or re-allowed or paid by underwriters or dealers to other dealers; or |
| • | any securities exchange or market on which the securities offered in the prospectus supplement may be listed. |
If we use underwriters for a sale of securities, the underwriters will acquire the securities for their own account for resale to the public, either on a firm commitment basis or a best efforts basis. The underwriters may resell the securities in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Underwriters may offer the securities to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. If underwriters are used in the sale of securities hereunder, an underwriting agreement will be executed with the underwriters at the time an agreement for sale is reached. Unless we inform you otherwise in the applicable prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions. We may change from time to time any public offering price and any discounts or concessions the underwriters allow or pay to dealers.
During and after an offering through underwriters, the underwriters may purchase and sell the securities in the open market. These transactions may include overallotment and stabilizing transactions and purchases to cover syndicate short positions created in connection with the offering. The underwriters may also impose a penalty bid, which means that selling concessions allowed to syndicate members or other broker-dealers for the offered securities sold for their account may be reclaimed by the syndicate if the offered securities are repurchased by the syndicate in stabilizing or covering transactions. These activities may stabilize, maintain or otherwise affect the market price of the offered securities, which may be higher than the price that might otherwise prevail in the open market. If commenced, the underwriters may discontinue these activities at any time.
Under Rule 15c6-1 under the Exchange Act, trades in the secondary market generally are required to settle in two business days, unless the parties to any such trade expressly agree otherwise or the securities are sold by us to an underwriter in a firm commitment underwritten offering. The applicable prospectus supplement may provide that the original issue date for your securities may be more than two scheduled business days after the trade date for your securities. Accordingly, in such a case, if you wish to trade securities on any date prior to the second business day before the original issue date for your securities, you will be required, by virtue of the fact that your securities initially are expected to settle in more than two scheduled business days after the trade date for your securities, to make alternative settlement arrangements to prevent a failed settlement.
Some or all of the securities that we offer through this prospectus may be new issues of securities with no established trading market. Any underwriters to whom we sell our securities for public offering and sale may make a market in those securities, but they will not be obligated to do so and they may discontinue any market making at any time without notice. Accordingly, we cannot assure you of the liquidity of, or continued trading markets for, any securities that we offer.
If dealers are used for the sale of securities, we, or an underwriter, will sell the securities to them as principals. The dealers may then resell those securities to the public at varying prices determined by the dealers at the time of resale. We will include in the applicable prospectus supplement the names of the dealers and the terms of the transaction.
We may also sell the securities through agents designated from time to time. In the applicable prospectus supplement, we will name any agent involved in the offer or sale of the offered securities, and we will describe any commissions payable to the agent. Unless we inform you otherwise in the applicable prospectus supplement, any agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.
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We may sell the securities directly in transactions not involving underwriters, dealers or agents.
We may sell the securities directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities Act with respect to any sale of those securities. We will describe the terms of any such sales in the applicable prospectus supplement.
Underwriters, dealers and agents that participate in the distribution of the securities may be underwriters as defined in the applicable securities laws and any discounts or commissions they receive from us and any profit on their resale of the securities may be treated as underwriting discounts and commissions under the applicable securities laws. We will identify in the applicable prospectus supplement any underwriters, dealers or agents and will describe their compensation. We may have agreements with the underwriters, dealers and agents to indemnify them against specified civil liabilities, including liabilities under the applicable securities laws.
Underwriters, dealers and agents may engage in transactions with or perform services for us in the ordinary course of their businesses for which they may receive customary fees and reimbursement of expenses.
We may use underwriters with whom we have a material relationship. We will describe the nature of such relationship in the applicable prospectus supplement.
Under the securities laws of some states, the securities offered by this prospectus may be sold in those states only through registered or licensed brokers or dealers.
We may enter into hedging transactions with broker-dealers and the broker-dealers may engage in short sales of the securities in the course of hedging the positions they assume with us, including, without limitation, in connection with distributions of the securities by those broker-dealers. We may enter into option or other transactions with broker-dealers that involve the delivery of the securities offered hereby to the broker-dealers, who may then resell or otherwise transfer those securities. We may also loan or pledge the securities offered hereby to a broker-dealer and the broker-dealer may sell the securities offered hereby so loaned or upon a default may sell or otherwise transfer the pledged securities offered hereby.
Selling Stockholders’ Plan of Distribution
The Selling Stockholders or their permitted transferees, pledgees, distributees, donees or other successors-in-interest may, from time to time after the date of this prospectus, sell, transfer or otherwise dispose of up to an aggregate of 120,453,642 shares of our common stock held by them, which represent the Selling Stockholder Shares. We are registering the Selling Stockholder Shares issued to the Selling Stockholders to permit the sale, transfer or other disposition of the Selling Stockholder Shares in accordance with the Registration Rights Agreement. We will not receive any of the proceeds from the sale by the Selling Stockholders of the Selling Stockholder Shares. We will, or will procure to, bear all fees and expenses incident to our obligation to register the Selling Stockholder Shares.
The Selling Stockholders may sell all or a portion of the Selling Stockholder Shares beneficially owned by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the Selling Stockholder Shares are sold through underwriters or broker-dealers, the Selling Stockholders will be responsible for underwriting discounts (it being understood that the Selling Stockholders shall not be deemed to be underwriters solely as a result of their participation in this offering) or commissions or agent’s commissions. The Selling Stockholder Shares may be sold on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale, in the over-the-counter market or in transactions otherwise than on these exchanges or systems or in the over-the-counter market and in one or more transactions at fixed prices, through distributions in kind for no consideration, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected in
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transactions that involve cross trades or block transactions. The Selling Stockholders may use any one or more of the following methods when selling Selling Stockholder Shares:
| • | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| • | block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; |
| • | to or through underwriters or purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
| • | an exchange distribution in accordance with the rules of the applicable exchange; |
| • | privately negotiated transactions; |
| • | settlement of short sales entered into after the effective date of the registration statement of which this prospectus is a part; |
| • | an agreement with broker-dealers to sell a specified number of such shares at a stipulated price per share; |
| • | through the writing or settlement of options or other hedging transactions, whether such options are listed on an options exchange or otherwise; |
| • | a combination of any such methods of sale; and |
| • | any other method permitted pursuant to applicable law. |
The Selling Stockholders also may resell all or a portion of the Selling Stockholder Shares in open market transactions in reliance upon Rule 144 under the Securities Act, as permitted by that rule, or Section 4(a)(1) under the Securities Act, if available, rather than under this prospectus, provided that they meet the criteria and conform to the requirements of those provisions.
Broker-dealers engaged by the Selling Stockholders may arrange for other broker-dealers to participate in sales. If the Selling Stockholders effect such transactions by selling Selling Stockholder Shares to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the Selling Stockholders or commissions from purchasers of the Selling Stockholder Shares for whom they may act as agent or to whom they may sell as principal. Such commissions will be in amounts to be negotiated, but, except as to be set forth in a supplement to this prospectus, in the case of an agency transaction, will not be in excess of a customary brokerage commission in compliance with Financial Industry Regulatory Authority (“FINRA”) Rule 2121; or, in the case of a principal transaction, a markup or markdown in compliance with FINRA IM-2121.01.
In connection with sales of the Selling Stockholder Shares or otherwise, the Selling Stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the Selling Stockholder Shares in the course of hedging in positions they assume. The Selling Stockholders may also sell Selling Stockholder Shares short and if such short sale shall take place after the date that the registration statement, of which this prospectus forms a part, has been declared effective by the SEC, the Selling Stockholders may deliver Selling Stockholder Shares covered by this prospectus to close out short positions and to return borrowed Selling Stockholder Shares in connection with such short sales. The Selling Stockholders may also loan or pledge Selling Stockholder Shares to broker-dealers that in turn may sell such shares, to the extent permitted by applicable law. The Selling Stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction). Notwithstanding the foregoing, the Selling Stockholders have been advised that they may not use Selling Stockholder Shares to cover short sales of our common stock made prior to the date the registration statement, of which this prospectus forms a part, has been declared effective by the SEC.
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The Selling Stockholders may, from time to time, pledge or grant a security interest in some or all of the Selling Stockholder Shares owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the Selling Stockholder Shares from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act, amending, if necessary, the list of Selling Stockholders to include the permitted transferees, pledgees, distributees, donees or other successors-in-interest as Selling Stockholders under this prospectus. The Selling Stockholders also may transfer and donate the Selling Stockholder Shares in other circumstances in which case the permitted transferees, pledgees, distributees, donees or other successors-in-interest will be the selling beneficial owners for purposes of this prospectus.
The Selling Stockholders and any broker-dealer or agents participating in the distribution of the Selling Stockholder Shares may be deemed to be “underwriters” within the meaning of Section 2(a)(11) of the Securities Act in connection with such sales. In such event, any commissions paid, or any discounts or concessions allowed to, any such broker-dealer or agent, and any profit on the resale of the shares purchased by them, may be deemed to be underwriting commissions or discounts under the Securities Act. Selling Stockholders who are “underwriters” within the meaning of Section 2(a)(11) of the Securities Act will be subject to the applicable prospectus delivery requirements of the Securities Act including Rule 172 thereunder and may be subject to certain statutory liabilities of, including but not limited to, Sections 11, 12 and 17 of the Securities Act and Rule 10b-5 under the Exchange Act.
At the time a particular offering of the Selling Stockholder Shares is made, a prospectus supplement, if required, will be distributed, which will set forth the name of the Selling Stockholder, the aggregate amount of shares being offered by the Selling Stockholder and the terms of the offering, including, to the extent required, (1) the name or names of any underwriters, broker-dealers or agents, (2) any discounts, commissions and other terms constituting compensation from the Selling Stockholder and (3) any discounts, commissions or concessions allowed or re-allowed to be paid to broker-dealers.
Under the securities laws of some U.S. states, the Selling Stockholder Shares may be sold in such states only through registered or licensed brokers or dealers. In addition, in some U.S. states the Selling Stockholder Shares may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.
There can be no assurance that any Selling Stockholder will sell any or all of the Selling Stockholder Shares registered pursuant to the registration statement, of which this prospectus forms a part.
Each Selling Stockholder and any other person participating in such distribution will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the Selling Stockholder Shares by the Selling Stockholder and any other participating person. To the extent applicable, Regulation M may also restrict the ability of any person engaged in the distribution of the Selling Stockholder Shares to engage in market-making activities with respect to the Selling Stockholder Shares. All of the foregoing may affect the marketability of the Selling Stockholder Shares and the ability of any person or entity to engage in market-making activities with respect to the Selling Stockholder Shares.
We will pay all expenses of the registration of the Selling Stockholder Shares pursuant to the Registration Rights Agreement, including, without limitation, SEC filing fees, legal expenses incurred by us and all reasonable legal expenses incurred by counsel for the Selling Stockholders; provided, however, that each Selling Stockholder will pay all underwriting discounts, selling commissions and stock transfer taxes applicable to the sale of Selling Stockholder Shares.
We may be required to indemnify the Selling Stockholders against certain liabilities, including some liabilities under the Securities Act, in accordance with the Registration Rights Agreement, or the Selling Stockholders may
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be entitled to contribution. We and our directors, officers and control persons may be indemnified by the Selling Stockholders against certain liabilities, including some liabilities under the Securities Act, that may arise from any written information furnished to us by the Selling Stockholders specifically for use in this prospectus, in accordance with the Registration Rights Agreement, or we or they may be entitled to contribution.
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The validity of the shares of our common stock, shares of preferred stock and debt securities offered by us pursuant to this prospectus will be passed upon for us by Sidley Austin LLP. The validity of the shares of our common stock offered by the Selling Stockholders pursuant to this prospectus will be passed upon for us by Stephen C. Petrovich, our Executive Vice President and General Counsel. Any underwriters will also be advised about the validity of the securities and other legal matters by their own counsel, which will be named in any applicable prospectus supplement.
The consolidated financial statements of Ardent Health, Inc. (formerly Ardent Health Partners, Inc.) appearing in our Annual Report (Form 10-K) for the year ended December 31, 2024, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon, included therein, and incorporated by reference herein. Such consolidated financial statements are incorporated by reference herein in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
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$500,000,000
Common Stock
Preferred Stock
Debt Securities
120,453,642 Shares of our Common Stock
Offered by the Selling Stockholders
PROSPECTUS
, 2025
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth estimated expenses, other than underwriting discounts and commissions payable by us or any Selling Stockholders, to be incurred in connection with the sale or distribution of securities registered under this registration statement.
| Amount to be paid |
||||
| SEC registration fee |
$ | 306,146.08 | ||
| FINRA filing fee |
* | |||
| Legal fees and expenses |
* | |||
| Accounting fees and expenses |
* | |||
| Printing and engraving expenses |
* | |||
| Transfer agent and registrar fees |
* | |||
| Miscellaneous fees and expenses |
* | |||
|
|
|
|||
| Total |
$ | * | ||
|
|
|
|||
| * | These fees and expenses depend on the securities offered and the number of issuances, and accordingly cannot be estimated at this time. An estimate of the aggregate expenses in connection with the sale and distribution of securities being offered will be included in the applicable prospectus supplement. |
Item 15. Indemnification of Officers and Directors
Section 102(b)(7) of the DGCL allows a corporation to provide in its certificate of incorporation that a director of the corporation will not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached the duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. Our Certificate of Incorporation provides for this limitation of liability.
Section 145 of the DGCL (“Section 145”), provides, among other things, that a Delaware corporation may indemnify any person who was, is or is threatened to be made, 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 an officer, director, 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 or 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 he or she reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful. A Delaware corporation may indemnify any persons who were or are a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person is or was a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests, provided further that no indemnification is permitted without judicial approval if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses (including attorneys’ fees) which such officer or
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director has actually and reasonably incurred. Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who 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 or enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify such person under Section 145.
Our Certificate of Incorporation and Bylaws provide that we must indemnify and advance expenses to our directors and officers to the full extent authorized by the DGCL.
The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, any provision of our Certificate of Incorporation, our Bylaws, agreement, vote of stockholders or disinterested directors or otherwise. Notwithstanding the foregoing, we shall not be obligated to indemnify a director or officer in respect of a proceeding (or part thereof) instituted by such director or officer, unless such proceeding (or part thereof) has been authorized by the Board pursuant to the applicable procedure outlined in the Bylaws.
Section 174 of the DGCL provides, among other things, that a director, who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption, may be held jointly and severally liable for such actions. A director who was either absent when the unlawful actions were approved or dissented at the time may avoid liability by causing his or her dissent to such actions to be entered in the books containing the minutes of the meetings of the Board at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.
We maintain standard policies of insurance that provide coverage (1) to our directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act and (2) to us with respect to indemnification payments that we may make to such directors and officers.
We have also entered into indemnification agreements with each of our directors and executive officers. These agreements provide our directors and executive officers with contractual rights to indemnification, expense advancement and reimbursement, to the fullest extent permitted under Delaware law.
The Registration Rights Agreement provides for indemnification by the Selling Stockholders of us and our officers, directors and control persons, and by us of the Selling Stockholders, for certain liabilities arising under the Securities Act or otherwise in connection with the offering of the Selling Stockholder Shares.
Item 16. Exhibits
The exhibits listed below are filed (except where otherwise indicated) as part of this registration statement.
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| * | To be filed by amendment or as exhibit(s) to a Current Report on Form 8-K filed by the registrant and incorporated by reference herein, as applicable. |
| ** | To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended, as applicable. |
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in
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the maximum aggregate offering price set forth in the “Calculation of Filing Fee Tables” or “Calculation of Registration Fee” table, as applicable, 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 subparagraphs (i), (ii) and (iii) 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 SEC 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;
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(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.
(b) The undersigned registrant hereby undertakes 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 Section 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 SEC such indemnification is against public policy as expressed in the Securities Act of 1933 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 Securities Act of 1933 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 trustee to act under subsection (a) of Section 310 of the Trust Indenture Act of 1939, as amended, in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.
II-5
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 Brentwood, State of Tennessee, on August 21, 2025.
| ARDENT HEALTH, INC. | ||
| By: | /s/ Martin J. Bonick | |
| Martin J. Bonick | ||
| President and Chief Executive Officer | ||
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Alfred Lumsdaine, the registrant’s Chief Financial Officer, and Stephen C. Petrovich, the registrant’s Executive Vice President and General Counsel, and each of them, as 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 this registration statement and any and all amendments (including post-effective amendments) hereto and any registration statements relating to the offering contemplated hereby filed pursuant to Rule 462(b) of the Securities Act of 1933, and any and all amendments (including post-effective amendments) thereto, and to file the same, with all exhibits thereto and other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents, and each of them, full right, power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or any of his, her or their substitute or substitutes, may lawfully have done or may 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.
| Signature | Title | Date | ||
| /s/ Martin J. Bonick Martin J. Bonick |
President and Chief Executive Officer, Director (Principal Executive Officer) |
August 21, 2025 | ||
| /s/ Alfred Lumsdaine Alfred Lumsdaine |
Chief Financial Officer (Principal Financial Officer) |
August 21, 2025 | ||
| /s/ David Byers David Byers |
Senior Vice President, Chief Accounting Officer (Principal Accounting Officer) |
August 21, 2025 | ||
| /s/ Mark Sotir Mark Sotir |
Director |
August 21, 2025 | ||
| /s/ Peter Bulgarelli Peter Bulgarelli |
Director |
August 21, 2025 | ||
| /s/ Peter Bynoe Peter Bynoe |
Director |
August 21, 2025 | ||
| /s/ Suzanne Campion Suzanne Campion |
Director |
August 21, 2025 | ||
II-6
Table of Contents
| Signature | Title | Date | ||
| /s/ Robert DeMichiei Robert DeMichiei |
Director |
August 21, 2025 | ||
| /s/ William Goodyear William Goodyear |
Director |
August 21, 2025 | ||
| /s/ Ellen Havdala Ellen Havdala |
Director |
August 21, 2025 | ||
| /s/ Edmondo Robinson Edmondo Robinson |
Director |
August 21, 2025 | ||
| /s/ Rahul Sen Rahul Sen |
Director |
August 21, 2025 | ||
| /s/ Rob Webb Rob Webb |
Director |
August 21, 2025 | ||
II-7
Exhibit 4.6
ARDENT HEALTH, INC.
Issuer
– and –
[_______________]
Trustee
INDENTURE
Dated as of [__________], 20[__]
Debt Securities
Certain Sections of this Indenture
relating to the Trust Indenture Act of 1939
| Trust Indenture Act Section |
Indenture Section | |||
| § 310(a)(1) |
607 | |||
| (a)(2) |
607 | |||
| (b) |
608 | |||
| § 312(a) |
701, 702(1) | |||
| (b) |
702 | |||
| (c) |
702 | |||
| § 313(a) |
703 | |||
| (b)(2) |
703 | |||
| (c) |
703 | |||
| (d) |
703 | |||
| § 314(a) |
704 | |||
| (c)(1) |
102 | |||
| (c)(2) |
102 | |||
| (e) |
102 | |||
| § 315(a) |
601 | |||
| (b) |
601, 602 | |||
| (c) |
601 | |||
| (d) |
601 | |||
| (e) |
515 | |||
| § 316(a) |
(last sentence) | 101 | ||
| (a)(1)(A) |
502, 512 | |||
| (a)(1)(B) |
513 | |||
| (b) |
508 | |||
| § 317(a)(1) |
503 | |||
| (a)(2) |
504 | |||
| (b) |
1003 | |||
| § 318(a) |
108 | |||
Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of this Indenture (as defined herein).
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
1 | |||||
| Section 101. |
Definitions | 1 | ||||
| Section 102. |
Compliance Certificates and Opinions | 10 | ||||
| Section 103. |
Form of Documents Delivered to Trustee | 10 | ||||
| Section 104. |
Acts of Holders; Record Dates | 11 | ||||
| Section 105. |
Notices, etc. to Trustee and the Issuer | 12 | ||||
| Section 106. |
Notice to Holders of Securities; Waiver | 12 | ||||
| Section 107. |
Language of Notices | 13 | ||||
| Section 108. |
Conflict with Trust Indenture Act | 13 | ||||
| Section 109. |
Effect of Headings and Table of Contents | 13 | ||||
| Section 110. |
Successors and Assigns | 13 | ||||
| Section 111. |
Separability Clause | 13 | ||||
| Section 112. |
Benefits of Indenture | 14 | ||||
| Section 113. |
Governing Law; Waiver of Jury Trial | 14 | ||||
| Section 114. |
Legal Holidays | 14 | ||||
| Section 115. |
Counterparts | 14 | ||||
| Section 116. |
Judgment Currency | 15 | ||||
| Section 117. |
Extension of Payment Dates | 15 | ||||
| Section 118. |
Immunity of Partners, Stockholders, Directors, Officers and Agents of the Issuer | 15 | ||||
| Section 119. |
USA Patriot Act | 16 | ||||
| Section 120. |
Force Majeure | 16 | ||||
| ARTICLE 2 SECURITIES FORMS |
16 | |||||
| Section 201. |
Forms Generally | 16 | ||||
| Section 202. |
Form of Trustee’s Certificate of Authentication | 17 | ||||
| Section 203. |
Securities in Global Form | 18 | ||||
| ARTICLE 3 THE SECURITIES |
19 | |||||
| Section 301. |
Amount Unlimited; Issuable in Series | 19 | ||||
| Section 302. |
Currency; Denominations | 23 | ||||
| Section 303. |
Execution, Authentication, Delivery and Dating | 23 | ||||
| Section 304. |
Temporary Securities | 25 | ||||
| Section 305. |
Registration, Transfer and Exchange | 25 | ||||
| Section 306. |
Mutilated, Destroyed, Lost and Stolen Securities | 28 | ||||
| Section 307. |
Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain Additional Amounts Preserved | 29 | ||||
| Section 308. |
Persons Deemed Owners | 30 | ||||
| Section 309. |
Cancellation | 30 | ||||
| Section 310. |
Computation of Interest | 31 | ||||
| Section 311. |
Identification Numbers | 31 | ||||
| ARTICLE 4 SATISFACTION AND DISCHARGE OF INDENTURE |
31 | |||||
| Section 401. |
Satisfaction and Discharge | 31 | ||||
| Section 402. |
Legal Defeasance and Covenant Defeasance | 33 | ||||
| Section 403. |
Application of Trust Money | 37 | ||||
| Section 404. |
Reinstatement | 38 | ||||
| ARTICLE 5 REMEDIES |
38 | |||||
| Section 501. |
Events of Default | 38 | ||||
| Section 502. |
Acceleration of Maturity; Rescission and Annulment | 40 | ||||
| Section 503. |
Collection of Indebtedness and Suits for Enforcement by Trustee | 41 | ||||
| Section 504. |
Trustee May File Proofs of Claim | 42 | ||||
| Section 505. |
Trustee May Enforce Claims without Possession of Securities | 43 | ||||
| Section 506. |
Application of Money Collected | 43 | ||||
| Section 507. |
Limitations on Suits | 43 | ||||
| Section 508. |
Unconditional Right of Holders to Receive Principal and any Premium, Interest and Additional Amounts | 44 | ||||
| Section 509. |
Restoration of Rights and Remedies | 44 | ||||
| Section 510. |
Rights and Remedies Cumulative | 45 | ||||
| Section 511. |
Delay or Omission Not Waiver | 45 | ||||
| Section 512. |
Control by Holders of Securities | 45 | ||||
| Section 513. |
Waiver of Continuing Defaults | 45 | ||||
| Section 514. |
Waiver of Usury, Stay or Extension Laws | 46 | ||||
| Section 515. |
Undertaking for Costs | 46 | ||||
| ARTICLE 6 THE TRUSTEE |
47 | |||||
| Section 601. |
Certain Rights of Trustee | 47 | ||||
| Section 602. |
Notice of Defaults | 49 | ||||
| Section 603. |
Not Responsible for Recitals or Issuance of Securities. | 49 | ||||
| Section 604. |
May Hold Securities; Transactions with the Issuer | 49 | ||||
| Section 605. |
Money Held in Trust | 50 | ||||
| Section 606. |
Compensation and Reimbursement | 50 | ||||
| Section 607. |
Corporate Trustee Required; Eligibility | 51 | ||||
| Section 608. |
Resignation and Removal; Appointment of Successor | 51 | ||||
| Section 609. |
Acceptance of Appointment by Successor | 53 | ||||
| Section 610. |
Merger, Conversion, Consolidation or Succession to Business | 54 | ||||
| Section 611. |
Appointment of Authenticating Agent | 54 | ||||
| ARTICLE 7 HOLDERS LISTS AND REPORTS BY TRUSTEE AND THE ISSUER |
56 | |||||
| Section 701. |
Issuer to Furnish Trustee Names and Addresses of Holders | 56 | ||||
| Section 702. |
Preservation of Information; Communications to Holders | 57 | ||||
| Section 703. |
Reports by Trustee | 57 | ||||
| Section 704. |
Reports by the Issuer | 57 | ||||
| ARTICLE 8 CONSOLIDATION, MERGER, SALES AND SUBSTITUTION |
58 | |||||
| Section 801. |
Issuer May Consolidate, Etc., Only on Certain Terms. | 58 | ||||
| Section 802. |
[Reserved] | 59 | ||||
| Section 803. |
Successor Person Substituted for Issuer | 59 | ||||
| ARTICLE 9 SUPPLEMENTAL INDENTURES |
59 | |||||
| Section 901. |
Supplemental Indentures without Consent of Holders | 59 | ||||
| Section 902. |
Supplemental Indentures with Consent of Holders | 61 | ||||
| Section 903. |
Execution of Supplemental Indentures | 63 | ||||
| Section 904. |
Effect of Supplemental Indentures | 63 | ||||
| Section 905. |
Reference in Securities to Supplemental Indentures | 63 | ||||
| Section 906. |
Conformity with Trust Indenture Act | 63 | ||||
| ARTICLE 10 COVENANTS |
64 | |||||
| Section 1001. |
Payment of Principal, Premium, Interest and Additional Amounts. | 64 | ||||
| Section 1002. |
Maintenance of Office or Agency | 64 | ||||
| Section 1003. |
Money for Securities Payments to Be Held in Trust | 65 | ||||
| Section 1004. |
Additional Amounts | 66 | ||||
| Section 1005. |
Corporate Existence | 67 | ||||
| Section 1006. |
Waiver of Certain Covenants | 67 | ||||
| Section 1007. |
Annual Statement as to Compliance | 67 | ||||
| Section 1008. |
Notice of Event of Default | 68 | ||||
| Section 1009. |
Calculation of Original Issue Discount | 68 | ||||
| ARTICLE 11 REDEMPTION OF SECURITIES |
68 | |||||
| Section 1101. |
Applicability of Article | 68 | ||||
| Section 1102. |
Election to Redeem; Notice to Trustee | 68 | ||||
| Section 1103. |
Selection by Trustee of Securities to be Redeemed | 69 | ||||
| Section 1104. |
Notice of Redemption | 69 | ||||
| Section 1105. |
Deposit of Redemption Price | 71 | ||||
| Section 1106. |
Securities Payable on Redemption Date | 71 | ||||
| Section 1107. |
Securities Redeemed in Part | 72 | ||||
| ARTICLE 12 SINKING FUNDS |
72 | |||||
| Section 1201. |
Applicability of Article | 72 | ||||
| Section 1202. |
Satisfaction of Sinking Fund Payments with Securities | 72 | ||||
| Section 1203. |
Redemption of Securities for Sinking Fund | 73 | ||||
| ARTICLE 13 REPAYMENT AT THE OPTION OF HOLDERS |
73 | |||||
| Section 1301. |
Applicability of Article. | 73 | ||||
| ARTICLE 14 SECURITIES IN FOREIGN CURRENCIES |
74 | |||||
| Section 1401. |
Applicability of Article | 74 | ||||
| ARTICLE 15 MEETINGS OF HOLDERS OF SECURITIES |
74 | |||||
| Section 1501. |
Purposes for Which Meetings May Be Called | 74 | ||||
| Section 1502. |
Call, Notice and Place of Meetings | 74 | ||||
| Section 1503. |
Persons Entitled to Vote at Meetings | 75 | ||||
| Section 1504. |
Quorum; Action | 75 | ||||
| Section 1505. |
Determination of Voting Rights; Conduct and Adjournment of Meetings | 76 | ||||
| Section 1506. |
Counting Votes and Recording Action of Meetings | 77 | ||||
INDENTURE, dated as of [_______], 20[__] (this “Indenture”), among ARDENT HEALTH, INC., a Delaware corporation, as issuer of Securities (as defined herein) (the “Issuer”), having its principal executive office located at 340 Seven Springs Way, Suite 100, Brentwood, Tennessee, and [_________], as trustee, registrar, paying agent and transfer agent (the “Trustee,” “Registrar,” “Paying Agent,” and “Transfer Agent,” respectively).
RECITALS
The Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its debentures, notes or other evidences of indebtedness (hereinafter called the “Securities”), unlimited as to principal amount, to bear such fixed or floating rates of interest, to mature at such time or times, to be issued in one or more series and to have such other provisions as shall be fixed as hereinafter provided.
This Indenture is subject to those provisions of the Trust Indenture Act (as defined herein) and the rules and regulations of the Commission (as defined herein) promulgated thereunder that are required to be part of this Indenture and, to the extent applicable, shall be governed by such provisions in accordance with Section 108.
All things necessary to make this Indenture a valid, legally binding and enforceable agreement of the Issuer, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders (as herein defined) thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture or unless the context otherwise requires, for all purposes of this Indenture:
(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 terms used but not defined 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 GAAP (as defined herein);
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(4) the words “herein,” “hereof,” “hereto” 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;
(5) the word “or” is always used inclusively (for example, the phrase “A or B” means “A or B or both,” not “either A or B but not both”);
(6) provisions apply to successive events and transactions;
(7) the term “merger” includes a statutory share exchange and the terms “merge” and “merged” have correlative meanings;
(8) the masculine gender includes the feminine and the neuter; and
(9) references to agreements and other instruments include subsequent amendments and supplements thereto.
Certain terms used principally in certain Articles hereof are defined in those Articles.
“Act,” when used with respect to any Holders, has the meaning specified in Section 104.
“Additional Amounts” means any additional amounts which are required by this Indenture, by the terms of any Security established pursuant to Section 301, under circumstances specified herein or therein, to be paid by the Issuer in respect of certain taxes, duties, levies, imposts, assessments or other governmental charges imposed on Holders specified herein or therein.
“Affiliate” means, with respect to any 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.
“Agency,” with respect to any Securities, means an agent of the Issuer or the office of an agent of the Issuer, as the context requires, in each case maintained or designated in a Place of Payment for such Securities pursuant to Section 1002 or any other agent of the Issuer or office of an agent of the Issuer, as the context requires, in each case maintained or designated for such Securities pursuant to Section 1002 or, to the extent designated or required by Section 1002 in lieu of such agent or agent’s office, the Corporate Trust Office of the Trustee.
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 611 to act on behalf of the Trustee to authenticate Securities of one or more series.
“Bankruptcy Code” means Title 11 of the United States Code, as amended from time to time.
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“Board of Directors” means the board of directors of the Issuer or any committee of such board duly authorized to act generally or in any particular respect for the Issuer hereunder.
“Board Resolution” means a copy of one or more resolutions, certified by the Secretary or an Assistant Secretary of the Issuer, as applicable, to have been duly adopted by the Board of Directors of the Issuer, as applicable, and to be in full force and effect on the date of such certification, delivered to the Trustee.
“Business Day” means, unless otherwise specified with respect to the Securities of any series pursuant to Section 301, any day other than a Saturday, Sunday or other day on which banking institutions in The City of New York are authorized or obligated by law, regulation or executive order to close; provided that such term shall mean, when used with respect to any payment of principal of, or premium or interest, if any, on, or Additional Amounts with respect to, the Securities of any series to be made at any Place of Payment for such Securities, unless otherwise specified pursuant to Section 301 with respect to such Securities, any day other than a Saturday, Sunday or other day on which banking institutions in such Place of Payment are authorized or obligated by law, regulation or executive order to close.
“Commission” means the Securities and Exchange Commission, as from time to time constituted, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Common Equity” includes any equity security of any class of the Issuer, which has no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Issuer, and which is not subject to redemption by the Issuer.
“Conversion Event” means the cessation of use of (i) a Foreign Currency both by the government of the country or the confederation or association of governments which issued such Foreign Currency and for the settlement of transactions by a central bank or other public institutions of or within the international banking community or (ii) any currency unit or composite currency for the purposes for which it was established.
“Corporate Trust Office” means the principal corporate trust office of the Trustee at which at any particular time its corporate trust business shall be administered, which office at the date of this Indenture is located at [______________].
“Corporation” includes corporations, partnerships, associations, limited liability companies and other companies, and business trusts. The term “corporation” means a corporation and does not include partnerships, associations, limited liability companies or other companies or business trusts.
“Currency,” with respect to any payment, deposit or other transfer in respect of the principal of or any premium or interest on or any Additional Amounts with respect to any Security, means Dollars or the Foreign Currency, as the case may be, in which such payment, deposit or other transfer is required to be made by or pursuant to the terms hereof or such Security and, with respect to any other payment, deposit or transfer pursuant to or contemplated by the terms hereof or such Security, means Dollars.
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“CUSIP number” means the alphanumeric designation assigned to a Security by Standard & Poor’s, CUSIP Service Bureau.
“Defaulted Interest” has the meaning specified in Section 307.
“Depository” means, with respect to any Security issuable or issued in the form of one or more global Securities, the Person designated as depository by the Issuer in or pursuant to this Indenture, and, unless otherwise provided with respect to any Security, any successor to such Person. If at any time there is more than one such Person, “Depository” shall mean, with respect to any Securities, the depository which has been appointed with respect to such Securities.
“Dollars” or “$” means a dollar or other equivalent unit of legal tender for payment of public or private debts in the United States of America.
“Equivalent Terms” has the meaning specified in Section 1102.
“Event of Default” has the meaning specified in Section 501.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor thereto, in each case as amended from time to time.
“Foreign Currency” means any currency, currency unit or composite currency issued by the government of one or more countries other than the United States of America or by any recognized confederation or association of such government.
“GAAP” and “generally accepted accounting principles” means generally accepted accounting principles in the United States of America as in effect on the date of any calculation or determination required hereunder. Except as otherwise set forth in this Indenture, all ratios and calculations based on GAAP contained in this Indenture shall be computed in accordance with GAAP.
“Government Obligations” means securities which are (i) direct obligations of the United States of America or such other government or governments which issued the Foreign Currency in which the principal of or any premium or interest on, or any Additional Amounts with respect to, the relevant Security shall be payable, in each case where the payment or payments thereunder are supported by the full faith and credit of the United States of America or such other government or governments or (ii) obligations of a Person controlled or supervised by, and acting as an agency or instrumentality of, the United States of America or such other government or governments in which the principal of, or any premium or interest on, or any Additional Amounts with respect to, the relevant Security shall be payable, in each case where the timely payment thereunder is unconditionally guaranteed as a full faith and credit obligation by the United States of America or such other government or governments, and which, in the case of (i) or (ii), are not callable or
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redeemable at the option of the issuer or issuers thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on, or principal of, or other amount with respect to, any such Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of such Government Obligation or the specific payment of interest on, or principal of, or other amount with respect to, such Government Obligation evidenced by such depository receipt.
“Holder” means the Person in whose name such Security is registered in the Security Register.
“Indebtedness,” when used with respect to any Person, and without duplication, unless otherwise specified with respect to the Securities of any series pursuant to Section 301, means any indebtedness (whether being principal, premium or interest) for or in respect of (i) any notes, bonds, debenture stock, loan stock or other securities or (ii) any borrowed money, which in each case would be reflected, in accordance with GAAP, on the balance sheet of such Person as a liability as of the date of determination.
“Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and, with respect to any Security, by the terms and provisions of such Security established pursuant to Section 301 (as such terms and provisions may be amended pursuant to the applicable provisions hereof); provided, however, that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of those particular series of Securities for which such Person is Trustee established pursuant to Section 301, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted.
“Indexed Security” means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance.
“interest,” with respect to any Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Interest Payment Date,” with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
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“Issuer” means the Person named as the “Issuer” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to Section 801 of this Indenture, and thereafter “Issuer” shall mean such successor Person.
“Issuer Request” and “Issuer Order” mean, respectively, a written request or order, as the case may be, signed in the name of the Issuer by the President and Chief Executive Officer or a Vice President and by the Chief Financial Officer, the Treasurer, the Secretary or an Assistant Secretary, in each case, of the Issuer, and delivered to the Trustee.
“Judgment Currency” has the meaning specified in Section 116.
“Maturity,” with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as provided in or pursuant to this Indenture or such Security, whether at the Stated Maturity, upon acceleration, upon redemption at the option of the Issuer, upon repayment at the option of the Holder or otherwise, and includes a Redemption Date for such Security and a date fixed for the repurchase or repayment of such Security at the option of the Holder.
“New York Banking Day” has the meaning specified in Section 116.
“Office,” with respect to any Securities, means an office of the Issuer maintained or designated in a Place of Payment for such Securities pursuant to Section 1002 or any other office of the Issuer maintained or designated for such Securities pursuant to Section 1002 or, to the extent designated or required by Section 1002 in lieu of such office, the Corporate Trust Office of the Trustee.
“Officers’ Certificate” means a certificate signed by the President and Chief Executive Officer or a Vice President and by the Chief Financial Officer, the Treasurer, the Secretary or an Assistant Secretary, in each case, of the Issuer that complies with the requirements of Section 314(e) of the Trust Indenture Act and is delivered to the Trustee.
“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel for the Issuer or other counsel who shall be reasonably acceptable to the Trustee, that, if required under the Trust Indenture Act, complies with the requirements of Section 314(e) of the Trust Indenture Act.
“Original Issue Discount Security” means a Security, other than an Indexed Security, issued pursuant to this Indenture which provides for an amount less than the principal amount thereof to be due and payable upon acceleration pursuant to Section 502.
“Outstanding,” when used with respect to any Securities, means, as of the date of determination, all such Securities theretofore authenticated and delivered under this Indenture, except:
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| (a) | any such Security or any portion thereof theretofore cancelled by the Trustee or the Security Registrar or delivered to the Trustee or the Security Registrar for cancellation; |
| (b) | any such Security or any portion thereof for whose payment at the Maturity thereof money in the necessary amount (or, to the extent that such Security is payable at such Maturity in shares of Common Equity or other securities or property, Common Equity or such other securities or property in the necessary amount, together with, if applicable, cash in lieu of fractional shares or securities) has been theretofore deposited pursuant hereto (other than pursuant to Section 402) with the Trustee or any Paying Agent (other than the Issuer or any Affiliate of the Issuer) in trust or set aside and segregated in trust by the Issuer or any Affiliate of the Issuer (if it shall act as Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; |
| (c) | any such Security with respect to which the Issuer has effected defeasance or covenant defeasance pursuant to Section 402, except to the extent provided in Section 402; or |
| (d) | any such Security which has 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, unless there shall have been presented to the Trustee proof satisfactory to it that such Security is held by a bona fide purchaser in whose hands such Security is a valid obligation of the Issuer; and |
| (e) | any such Security converted or exchanged as contemplated by this Indenture into Common Equity or other securities or property, if the terms of such Security provide for such conversion or exchange pursuant to Section 301; |
provided, however, that in determining whether the Holders of the requisite aggregate 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 of Securities for quorum purposes, (i) the principal amount of an Original Issue Discount Security that may be counted in making such determination and that shall be deemed to be Outstanding for such purposes shall be equal to the amount of the principal thereof that pursuant to the terms of such Original Issue Discount Security would be due and payable prior to its Stated Maturity at the time of such determination, (ii) the principal amount of any Indexed Security that may be counted in making such determination and that shall be deemed Outstanding for such purpose shall be equal to the principal amount of such Indexed Security at original issuance, unless otherwise provided in or pursuant to this Indenture, (iii) the principal amount of a Security denominated in a Foreign Currency that may be counted in making such determination and that shall be deemed Outstanding for such purposes shall be the Dollar equivalent, determined on the date of original issuance of such Security, of the principal amount (or, in the case of an Original Issue Discount Security, the
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Dollar equivalent on the date of original issuance of such Security of the amount determined as provided in (i) above) of such Security, and (iv) Securities owned by the Issuer or any other obligor in respect of the Securities or any Affiliate of the Issuer or such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making any such determination or relying upon any such request, demand, authorization, direction, notice, consent or waiver, the Trustee shall be entitled to conclusively rely on any such request, demand, authorization, direction, notice, consent or waiver, but only to the extent the Responsible Officer of the Trustee making such determination does not have actual knowledge that such Securities are not so owned. Securities so owned which shall have been pledged in good faith may be regarded as Outstanding if the pledgee establishes in writing to the satisfaction of the Trustee (A) the pledgee’s right so to act with respect to such Securities and (B) that the pledgee is not the Issuer or any other obligor in respect of the Securities or an Affiliate of the Issuer or such other obligor.
“Paying Agent” means any Person authorized by the Issuer to pay the principal of, or any premium or interest on, or any Additional Amounts with respect to, any Security on behalf of the Issuer.
“Person” and “person” mean any individual, Corporation, joint venture, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Place of Payment,” with respect to any Security, means the place or places where the principal of, or any premium or interest on, or any Additional Amounts with respect to such Security are payable as provided in or pursuant to this Indenture or such Security.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same indebtedness 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 lost, destroyed, mutilated or stolen Security shall be deemed to evidence the same indebtedness as the lost, destroyed, mutilated or stolen Security.
“Redemption Date,” with respect to any Security or portion thereof to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture or such Security.
“Redemption Price,” with respect to any Security or portion thereof to be redeemed, means the price at which it is to be redeemed as determined by or pursuant to this Indenture or such Security, including, without limitation, unpaid interest, if any, accrued to, but excluding, the Redemption Date.
“Regular Record Date” for the interest payable on any Security on any Interest Payment Date therefor means the date, if any, specified in or pursuant to this Indenture or such Security as the regular record date for the payment of such interest.
“Required Currency” has the meaning specified in Section 116.
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“Responsible Officer” means any officer of the Trustee in its corporate trust department and also means, with respect to a particular corporate trust matter, any other officer or employee of the Trustee to whom such matter is referred because of their knowledge of and familiarity with the particular subject.
“Securities Act” means the Securities Act of 1933, as amended, or any successor thereto, in each case as amended from time to time.
“Security” or “Securities” means any note or notes, bond or bonds, debenture or debentures, or any other evidences of indebtedness, as the case may be, authenticated and delivered under this Indenture; provided, however, that, if at any time there is more than one Person acting as Trustee under this Indenture, “Securities,” with respect to any such Person, shall mean Securities authenticated and delivered under this Indenture, exclusive, however, of Securities of any series as to which such Person is not Trustee.
“Security Register” and “Security Registrar” have the respective meanings specified in Section 305.
“Special Record Date” for the payment of any Defaulted Interest on any Security means a date fixed therefor by the Trustee pursuant to Section 307.
“Stated Maturity,” with respect to any Security or any installment of principal thereof or interest thereon or any Additional Amounts with respect thereto, means the date established by or pursuant to this Indenture or such Security as the fixed date on which the principal of such Security or such installment of principal or interest is, or such Additional Amounts are, due and payable.
“Subsidiary” means (1) any corporation a majority of the total voting power of whose outstanding Voting Stock is owned or controlled, directly or indirectly, at the date of determination by the Issuer and/or one or more other Subsidiaries, and (2) any other Person in which the Issuer and/or one or more other Subsidiaries, directly or indirectly, at the date of determination, (x) own a majority of the outstanding ownership interests or (y) have the power to elect or direct the election of, or to appoint or approve the appointment of, at least a majority of the directors, trustees or managing members of, or other persons holding similar positions with, such Person.
“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed; provided, however, that in the event that the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means the Trust Indenture Act of 1939 as so amended.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such with respect to one or more series of Securities pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean each Person who is then a Trustee hereunder; provided, however, that if at any time there is more than one such Person, “Trustee” shall mean each such Person and as used with respect to the Securities of any series shall mean the Trustee with respect to the Securities of such series.
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“United States,” means the United States of America (including the states thereof and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction; and the term “United States of America” means the United States of America.
“U.S.A. Patriot Act” has the meaning specified in Section 119.
“Vice President,” when used with respect to the Issuer or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “Vice President.”
“Voting Stock” means, with respect to any Person, any class or series of capital stock of, or other equity interests in, such Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of, or to appoint or to approve the appointment of, the directors, trustees or managing members of, or other persons holding similar positions with, such Person.
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in or pursuant to this Indenture, upon any application or request by the Issuer to the Trustee to take any action under any provision of this Indenture, the Issuer shall furnish to the 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 or any of them is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
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 Issuer may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such officer knows, or in the exercise of reasonable care should know, that the Opinion of Counsel with respect to the matters upon which their certificate or opinion is based is erroneous. Any such Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Issuer, a governmental official or officers or any other Person or Persons, stating that the information with respect to such factual matters is in the possession of the Issuer unless counsel rendering the Opinion of Counsel knows, or in the exercise of reasonable care should know, that the certificate, opinion or representations with respect to such matters are erroneous.
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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 or any Security, they may, but need not, be consolidated and form one instrument.
Section 104. Acts of Holders; Record Dates.
(1) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by or pursuant to this Indenture to be made, 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 an agent duly appointed in writing. 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 and, where it is hereby expressly required, to the Issuer. 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 315 of the Trust Indenture Act) conclusive in favor of the Trustee, the Issuer and any agent of the Trustee, the Issuer, 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 1506.
Without limiting the generality of this Section 104, unless otherwise provided in or pursuant to this Indenture, a Holder, including a Depository that is a Holder of a global Security, may make, give or take, by a proxy or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other Act provided in or pursuant to this Indenture or the Securities to be made, given or taken by Holders, and a Depository that is a Holder of a global Security may provide its proxy or proxies to the beneficial owners of interests in any such global Security through such Depository’s standing instructions and customary practices.
(2) The fact and date of the execution by any Person of any such instrument or writing may be proved in any reasonable manner which the Trustee deems sufficient and in accordance with such reasonable rules as the Trustee may determine; and the Trustee may in any instance require further proof with respect to any of the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of Securities held by any Person, and the date of the commencement and the date of the termination of holding the same, shall be proved by the Security Register.
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(4) If the Issuer shall solicit from the Holders of any Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Issuer may at its option (but is not obligated to), by Board Resolution, fix in advance a record date for the determination of Holders of Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of Securities of record at the close of business on such record date shall be deemed to be Holders for the purpose of determining whether Holders of the requisite proportion of Outstanding Securities have authorized, agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders of Securities shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.
(5) Any request, demand, authorization, direction, notice, consent, waiver or other Act 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 or suffered to be done by the Trustee, any Security Registrar, any Paying Agent, the Issuer in reliance thereon, whether or not notation of such Act is made upon such Security.
Section 105. Notices, etc. to Trustee and the Issuer.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Issuer shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, or
(2) the Issuer by the Trustee or any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Issuer addressed to the attention of its Secretary at the address of its principal executive office specified in the first paragraph of this Indenture or at any other address furnished in writing to the Trustee by the Issuer for such purpose.
Section 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this Indenture, where this Indenture provides for notice to Holders of Securities of any event, such notice shall be sufficiently given to Holders of Securities if in writing and mailed, first-class postage prepaid, or if delivered electronically pursuant to the applicable procedures of the Depository, to each Holder of a Security affected by such event, at their 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.
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In any case where notice to Holders of 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 Security shall affect the sufficiency of such notice with respect to other Holders of Securities given as provided herein. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given or provided. In the case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee in its sole discretion shall constitute a sufficient notification for every purpose hereunder.
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 of Securities shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 107. Language of Notices.
Any request, demand, authorization, direction, notice, consent, waiver or other action required or permitted under this Indenture shall be in the English language, except that, if the Issuer so elects, any published notice may be in an official language of the country of publication.
Section 108. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
Section 109. 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 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer shall bind its successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture or any Security shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not, to the fullest extent permitted by law, in any way be affected or impaired thereby.
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Section 112. Benefits of Indenture.
Nothing in this Indenture or any Security, express or implied, shall give to any Person, other than the parties hereto, any Security Registrar, any Paying Agent and their successors hereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 113. Governing Law; Waiver of Jury Trial.
This Indenture and the Securities shall be governed by, and construed in accordance with, the laws of the State of New York. EACH OF THE ISSUER, THE TRUSTEE AND THE HOLDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION, SUIT OR PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 114. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any Securities, in any case where any Interest Payment Date, Stated Maturity or Maturity of, or any other day on which a payment is due with respect to, any Security shall be a day which is not a Business Day, then payment need not be made on such day, but such payment may be made on the next succeeding day that is a relevant Business Day with the same force and effect as if made on the Interest Payment Date, at the Stated Maturity or Maturity or on any such other payment date, as the case may be, and no interest shall accrue or be payable on such succeeding Business Day for the period from and after such Interest Payment Date, Stated Maturity, Maturity or other payment date, as the case may be, to such succeeding Business Day.
Section 115. Counterparts.
This Indenture may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
All notices, approvals, consents, requests and any communications to the Trustee hereunder must be in the form of a document that is signed manually or by way of an electronic signature (including electronic images of handwritten signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign or any other electronic signature provider acceptable to the Trustee). Electronic signatures believed by the Trustee to comply with the ESIGN ACT of 2000 or other applicable law shall be deemed original signatures for all purposes. If any party chooses to use electronic signatures to sign documents delivered to the Trustee, such party agrees to assume all risks arising out of its use of electronic signatures, including without limitation the risk of the Trustee acting on an unauthorized document and the risk of interception or misuse by third parties.
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Section 116. Judgment Currency.
Each of the Issuer agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of, or premium or interest, if any, or Additional Amounts on the Securities of any series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the date on which a final unappealable judgment is given and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with clause (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, “New York Banking Day” means any day except a Saturday, Sunday or a legal holiday in The City of New York or a day on which banking institutions in The City of New York are authorized or obligated by law, regulation or executive order to be closed. The provisions of this Section 116 shall not be applicable with respect to any payment due on a Security which is payable in Dollars.
Section 117. Extension of Payment Dates.
In the event that (i) the terms of any Security established in or pursuant to this Indenture permit the Issuer or any Holder thereof to extend the date on which any payment of principal of, or premium, if any, or interest, if any, on, or Additional Amounts, if any, with respect to such Security is due and payable and (ii) the due date for any such payment shall have been so extended, then all references herein to the Stated Maturity of such payment (and all references of like import) shall be deemed to refer to the date as so extended.
Section 118. Immunity of Partners, Stockholders, Directors, Officers and Agents of the Issuer.
No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any past, present or future partner, stockholder, employee, officer or director, solely in such capacity, of the Issuer or of any of the Issuer’s predecessors or successors, either directly or through the Issuer or any predecessor or successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders and as part of the consideration for the issue of the Securities.
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Section 119. USA Patriot Act.
The parties hereto acknowledge that, in accordance with Section 326 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the “U.S.A. Patriot Act”), the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. Each of the Issuer agrees that it will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
Section 120. Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
ARTICLE 2
SECURITIES FORMS
Section 201. Forms Generally.
Each Security and temporary or permanent global Security issued pursuant to this Indenture shall be in the form established by or pursuant to a Board Resolution of the Issuer and set forth in an Officers’ Certificate of the Issuer, or established in one or more indentures supplemental hereto, shall have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by or pursuant to 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 may, consistently herewith, be determined by an officer of the Issuer executing such Security, as conclusively evidenced by the execution of such Security.
Unless otherwise provided in or pursuant to this Indenture, the Securities shall be issuable in registered form without coupons.
Definitive Securities shall be printed, lithographed or engraved or produced by any combination of these methods or in any other manner, all as determined by an officer of the Issuer executing such Securities, as conclusively evidenced by the execution of such Securities.
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Section 202. Form of Trustee’s Certificate of Authentication.
Subject to Section 611, the Trustee’s certificate of authentication shall be in substantially the following form:
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This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| [_________________] | ||
| By: | ||
|
| ||
| Authorized Signatory | ||
Section 203. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any Securities, the Securities shall not be issuable in global form. If Securities of a series shall be issuable in temporary or permanent global form, any such Security may provide that it or any principal amount of such Securities shall represent the aggregate amount of all Outstanding Securities of such series (or such lesser principal amount as is permitted by the terms thereof) from time to time endorsed thereon or reflected on the books and records of the Trustee and may also provide that the aggregate principal amount of Outstanding Securities represented thereby may from time to time be increased or reduced to reflect exchanges. Any endorsement of any Security in global form to reflect the principal amount, or any increase or decrease in the principal amount, or changes in the rights of Holders, of Outstanding Securities represented thereby shall be made in such manner and by such Person or Persons as shall be specified therein or pursuant to Section 301 with respect to such Security or in the Issuer Order to be delivered pursuant to Section 303 or 304 with respect thereto. Subject to the provisions of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any Security in global form in the manner and upon written instructions given by the Person or Persons specified therein or pursuant to Section 301 with respect to such Security or in the applicable Issuer Order. If an Issuer Order pursuant to Section 303 (with respect to Outstanding Securities) or 304 has been, or simultaneously is, delivered, any instructions by the Issuer with respect to a Security in global form shall be in writing but need not be accompanied by or contained in an Officers’ Certificate of the Issuer and need not be accompanied by an Opinion of Counsel. Notwithstanding the foregoing provisions of this paragraph, in the event a global Security is exchangeable for definitive Securities as provided in Section 305, then, unless otherwise provided in or pursuant to this Indenture with respect to the Securities of such series, the Trustee shall deliver and redeliver such global Security to the extent necessary to effect such exchanges, shall endorse such global Security to reflect any decrease in the principal amount thereto resulting from such exchanges and shall take such other actions, all as contemplated by Section 305.
Notwithstanding the provisions of Section 307, payment of principal of, any premium and interest on, and any Additional Amounts in respect of any Security in temporary or permanent global form shall be made to the Person in whose name such Security is registered.
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Notwithstanding anything to the contrary, the Issuer, the Trustee and any agent of the Issuer or the Trustee shall treat as the Holder of the principal amount of Outstanding Securities represented by a global Security as the Holder of such global Security.
ARTICLE 3
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series.
With respect to any Securities to be authenticated and delivered hereunder, there shall be established in or pursuant to one or more Board Resolutions of the Issuer and set forth in an Officers’ Certificate of the Issuer, or established in one or more indentures supplemental hereto, prior to the issuance of the Securities of any series,
(1) the title of such Securities;
(2) any limit upon the aggregate principal amount of such Securities 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 such series pursuant to Section 304, 305, 306, 905 or 1107, upon repayment in part of any Security of such series pursuant to Article 13 or upon surrender in part of any Security for conversion or exchange into Common Equity or other securities or property pursuant to its terms);
(3) if any of such Securities are to be issuable in global form, when any of such Securities are to be issuable in global form and (i) whether such Securities are to be issued in temporary or permanent global form or both, (ii) whether beneficial owners of interests in any such global Security may exchange such interests for Securities of the same series and of like tenor and of any authorized form and denomination, and the circumstances under which any such exchanges may occur, if other than in the manner specified in Section 305, (iii) the name of the Depository with respect to any such global Security and (iv) if applicable and in addition to the Persons specified in Section 305, the Person or Persons who shall be entitled to make any endorsements on any such global Security and to give the instructions and take the other actions with respect to such global Security contemplated by the first paragraph of Section 203;
(4) the date or dates, or the method or methods, if any, by which such date or dates shall be determined, on which the principal of, and any premium on, such Securities are payable;
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(5) the rate or rates at which such Securities shall bear interest, if any, or the method or methods, if any, by which such rate or rates are to be determined, the date or dates, if any, from which such interest shall accrue or the method or methods, if any, by which such date or dates are to be determined, the Interest Payment Dates, if any, on which such interest shall be payable and the Regular Record Date, if any, for the interest payable on Securities on any Interest Payment Date, the notice, if any, to Holders regarding the determination of interest on a floating rate Security and the manner of giving such notice, and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day months;
(6) if in addition to or other than the Corporate Trust Office, the place or places where the principal of, any premium and interest on or any Additional Amounts with respect to such Securities shall be payable, any of such Securities may be surrendered for registration of transfer or exchange and notices or demands to or upon the Issuer, if any, in respect of such Securities and this Indenture may be served;
(7) whether any of such Securities are to be redeemable at the option of the Issuer and, if so, the date or dates on which, the period or periods within which, the price or prices at which and the other terms and conditions upon which such Securities may be redeemed, in whole or in part, at the option of the Issuer;
(8) if the Issuer is obligated to redeem or repay any of such Securities pursuant to any sinking fund or analogous provision or at the option of any Holder thereof, or otherwise, and, if so, the date or dates on which, the period or periods within which, the price or prices at which and the other terms and conditions upon which such Securities shall be redeemed or repaid, in whole or in part, pursuant to such obligation, and any provisions for the remarketing of such Securities so redeemed or purchased;
(9) the denominations in which any of such Securities shall be issuable if other than minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof;
(10) whether such Securities will be convertible into and/or exchangeable for Common Equity or other securities or property and, if so, the terms and conditions upon which such Securities will be so convertible and/or exchangeable, and any deletions from or modifications of or additions to this Indenture to permit or to facilitate the issuance of such convertible and/or exchangeable Securities or the administration thereof;
(11) if other than the principal amount thereof, the portion of the principal amount of any of such Securities that shall be due and payable upon acceleration of the Maturity thereof pursuant to Section 502 or the method by which such portion is to be determined;
(12) if other than Dollars, the Foreign Currency in which purchases of such Securities must be made and the Foreign Currency in which payment of the principal of, any premium or interest on and any Additional Amounts with respect to any of such Securities shall be payable;
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(13) if the principal of, any premium or interest on or any Additional Amounts with respect to any of such Securities are to be payable, at the election of the Issuer or a Holder thereof or otherwise, in a Currency other than that in which such Securities are stated to be payable, the date or dates on which, the period or periods within which, and the other terms and conditions upon which, such determination may or shall be made, and the time and manner of determining the exchange rate between the Currency in which such Securities are stated to be payable and the Currency in which such Securities or any of them are to be paid pursuant to such determination, and any deletions from or modifications of or additions to the terms of this Indenture to provide for or to facilitate the issuance of Securities denominated or payable, at the election of the Issuer or a Holder thereof or otherwise, in a Foreign Currency;
(14) if the amount of payments of principal of, any premium or interest on or any Additional Amounts with respect to such Securities may be determined with reference to an index, formula or other method or methods (which index, formula or method or methods may be based, without limitation, on one or more Currencies, commodities, equity indices or other indices), and, if so, the terms and conditions upon which, and the manner in which, such amounts shall be determined and paid or payable;
(15) any deletions from, modifications of or additions to the Events of Default or covenants of the Issuer, if any, with respect to any of such Securities (whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein);
(16) if (i) any one or more of Section 401 relating to satisfaction and discharge or Section 402(2) relating to legal defeasance shall not be applicable to such Securities, (ii) there shall be covenants of the Issuer that shall be subject to covenant defeasance and, if so, which such covenants, (iii) such Securities are subject to repayment at the option of the Holders thereof pursuant to Article 13, whether the Issuer’s obligation to repay such Securities will be subject to satisfaction and discharge pursuant to Section 401 and/or to legal defeasance or covenant defeasance pursuant to Section 402, and, (iv) the Holders of such Securities have the right to convert and/or exchange such Securities into Common Equity or other securities or property, whether the right to effect such conversion or exchange will be subject to satisfaction and discharge pursuant to Section 401 and/or to legal defeasance or covenant defeasance pursuant to Section 402, and any deletions from, or modifications of or additions to the provisions of Article 4 (including any modification which would permit satisfaction and discharge, legal defeasance and/or covenant defeasance to be effected with respect to less than all of the Outstanding Securities of such series) in respect of such Securities;
(17) if any of such Securities are to be issuable upon the exercise of warrants, and the time, manner and place for such Securities to be authenticated and delivered;
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(18) if any of such Securities are issuable in global form and are to be issuable in definitive form (whether upon original issuance or upon exchange of a temporary Security) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then the form and terms of such certificates, documents or conditions;
(19) the circumstances under which the Issuer will pay Additional Amounts on such Securities in respect of any tax, assessment or other government charge and whether the Issuer will have the option to redeem such Securities rather than trigger the requirement for the payment of such Additional Amounts;
(20) if there is more than one Trustee, the identity of the Trustee that has any obligations, duties and remedies with respect to such Securities and, if not the Trustee, the identity of each Security Registrar, Paying Agent or Authenticating Agent with respect to such Securities;
(21) the Person to whom any interest on any of such Securities shall be payable, if other than the Person in whose name any such Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, the manner in which, or the Person to whom, and the extent to which, or the manner in which, any interest payable on a temporary global Security will be paid if other than in the manner provided in this Indenture;
(22) if such Securities shall constitute subordinated indebtedness and, if so, the definition of Senior Indebtedness and the applicability of other subordination provisions relating thereto, and any deletions from or modifications of or additions to this Indenture to permit or facilitate the issuance of such subordinated Securities or the administration thereof; and
(23) any other terms of such Securities and any deletions from or modifications of or additions to this Indenture in respect of such Securities.
All Securities of any one series shall be substantially identical except as to Currency of payments due thereunder, denomination and the rate of interest, or method of determining the rate of interest, if any, Maturity, and the date from which interest, if any, shall accrue and except as may otherwise be provided by the Issuer in or pursuant to the Board Resolution of the Issuer and set forth in the Officers’ Certificate of the Issuer or in any indenture or indentures supplemental hereto pertaining to such series of Securities. The terms of the Securities of any series may provide, without limitation, that the Securities shall be authenticated and delivered by the Trustee on original issue from time to time upon written order of persons designated in the Board Resolutions of the Issuer, Officers’ Certificate of the Issuer or supplemental indenture, as the case may be, pertaining to such series of Securities and that such persons are authorized to determine, consistent with such Board Resolutions, Officers’ Certificate or supplemental indenture, such terms and conditions of the Securities of such series as are specified in such Board Resolutions, Officers’ Certificate or supplemental indenture.
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All Securities of any one series need not be issued at the same time and, unless otherwise provided by the Issuer as contemplated by this Section 301, a series may be reopened from time to time without notice to or the consent of any Holders for issuances of additional Securities of such series or to establish additional terms of such series of Securities.
If any of the terms of the Securities of any series shall be established by action taken by or pursuant to Board Resolutions of the Issuer, such Board Resolution(s) shall be delivered to the Trustee at or prior to the delivery of the Officers’ Certificate of the Issuer setting forth the terms of such series.
Section 302. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the principal of, any premium and interest on and any Additional Amounts with respect to the Securities shall be payable in Dollars. Unless otherwise provided in or pursuant to this Indenture, Securities denominated in Dollars shall be issuable in registered form without coupons in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof. Securities not denominated in Dollars shall be issuable in such denominations as are established with respect to such Securities in or pursuant to this Indenture.
Section 303. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Issuer by the Chief Executive Officer, President or one of the Vice Presidents and by the Chief Financial Officer, the Treasurer, the Secretary or one of the Assistant Secretaries, in each case, of the Issuer. The signature of any of these officers on the Securities may be manual, facsimile, PDF or by way of an electronic signature (including electronic images of handwritten signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign or any other electronic signature provider acceptable to the Trustee). Electronic signatures believed by the Trustee to comply with the ESIGN ACT of 2000 or other applicable law shall be deemed original signatures for all purposes.
Securities bearing the manual, facsimile, PDF or electronic signatures of individuals who were at any time the proper officers of the Issuer shall, to the fullest extent permitted by law, bind the Issuer 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 Issuer may deliver duly executed Securities to the Trustee for authentication and, provided that the Board Resolutions and Officers’ Certificate of the Issuer or supplemental indenture or indentures with respect to such Securities referred to in Section 301 and an Issuer Order for the authentication and delivery of such Securities have been delivered to the Trustee, the Trustee in accordance with the Issuer Order and subject to the provisions hereof and of such Securities shall authenticate and deliver such Securities. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall receive, and (subject to Sections 315(a) through 315(d) of the Trust Indenture Act) shall be fully protected in conclusively relying upon, an Opinion of Counsel to the following effect, which Opinion of Counsel may contain such assumptions, qualifications and limitations as such counsel and Trustee shall deem appropriate:
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(a) the form or forms and terms of such Securities have been established in conformity with Sections 201 and 301 of this Indenture;
(b) all conditions precedent set forth in this Indenture to the authentication and delivery of such Securities have been complied with and that such Securities, when completed by appropriate insertions (if applicable), executed and delivered by duly authorized officers of the Issuer to the Trustee for authentication pursuant to this Indenture, and authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, except, in each case, as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent transfer or other similar laws relating to or affecting creditors’ rights generally or by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and subject to such other exceptions as shall be acceptable to the Trustee; provided that such Opinion of Counsel need express no opinion as to whether a court in the United States would render a money judgment in a Foreign Currency; and
(c) that all applicable laws and requirements in respect of the execution and delivery by the Issuer of such Securities have been complied with.
If all the Securities of any series are not to be issued at one time, it shall not be necessary to deliver an Opinion of Counsel at the time of issuance of each Security, but such opinion, with such modifications as counsel shall deem appropriate, shall be delivered at or before the time of issuance of the first Security of such series. After any such first delivery, any separate request by the Issuer that the Trustee authenticate Securities of such series for original issue will be accompanied by (i) a certification by the Issuer that all conditions precedent provided for in this Indenture relating to authentication and delivery of such Securities continue to have been complied with and (ii) an Issuer Order for the authentication and delivery of such Securities.
The Trustee shall not be required to authenticate or to cause an Authenticating Agent to authenticate any Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or will otherwise be in a manner which is not reasonably acceptable to the Trustee or if the Trustee, being advised by counsel, determines that such action may not lawfully be taken.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Security a certificate of authentication substantially in the form provided for in Section 202 or 611 executed by or on behalf of the Trustee or by the Authenticating Agent by the manual, facsimile, PDF or electronic signature of one of its authorized signatories. Such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder.
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Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Issuer may execute and deliver to the Trustee and, upon Issuer Order, the Trustee or Authenticating Agent shall authenticate and deliver, in the manner provided in Section 303, temporary Securities in lieu thereof which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form with such appropriate insertions, omissions, substitutions and other variations as the officers of the Issuer executing such Securities may determine, as conclusively evidenced by their execution of such Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form, which shall be exchanged in accordance with the provisions set forth in this Indenture or the provisions established pursuant to Section 301, if temporary Securities are issued, the Issuer shall cause definitive Securities to be prepared without unreasonable delay. Except as otherwise provided in or pursuant to this Indenture, after the preparation of definitive Securities of the same series and containing terms and provisions that are identical to those of any temporary Securities, such temporary Securities shall be exchangeable for such definitive Securities upon surrender of such temporary Securities at an Office or Agency for such Securities, without charge to any Holder thereof. Except as otherwise provided in or pursuant to this Indenture, upon surrender for cancellation of any one or more temporary Securities, the Issuer shall execute and, upon Issuer Order, the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of authorized denominations of the same series and containing identical terms and provisions. Unless otherwise provided in or pursuant to this Indenture with respect to a temporary global Security, until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.
Section 305. Registration, Transfer and Exchange.
(1) With respect to the Securities of each series, if any, the Issuer shall cause to be kept a register (each such register being herein sometimes referred to as the “Security Register”) at an Office or Agency for such series in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of the Securities of such series and of transfers of the Securities of such series. Such Office or Agency shall be the “Security Registrar” for that series of Securities. Unless otherwise specified in or pursuant to this Indenture or the Securities, the initial Security Registrar for each series of Securities shall be as specified in the last paragraph of Section 1002. The Issuer shall have the right to remove and replace from time to time the Security Registrar for any series of Securities; provided that no such removal or replacement shall be effective until a successor Security Registrar with respect to such series of Securities shall have been appointed by the Issuer and shall have accepted such appointment. In the event that the Trustee shall not be or shall cease to be Security Registrar with respect to a series of Securities, it shall have the right to examine the Security Register for such series at all reasonable times. There shall be only one Security Register for each series of Securities.
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Except as otherwise provided in or pursuant to this Indenture, upon surrender for registration of transfer of any Security of any series at any Office or Agency for such series, the Issuer shall execute, and, upon Issuer Order, the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series denominated as authorized in or pursuant to this Indenture, of a like aggregate principal amount bearing a number not contemporaneously outstanding and containing identical terms and provisions.
Except as otherwise provided in or pursuant to this Indenture, at the option of the Holder, Securities of any series may be exchanged for other Securities of the same series containing identical terms and provisions, in any authorized denominations, and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at any Office or Agency for such series. Whenever any Securities are so surrendered for exchange, the Issuer shall execute, and, upon Issuer Order, the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or pursuant to this Indenture, the global Securities of any series shall be exchangeable for definitive certificated Securities of such series only if (i) the Depository for such global Securities notifies the Issuer that it is unwilling or unable or no longer qualified to continue as a Depository for such global Securities or at any time the Depository for such global Securities ceases to be a clearing agency registered as such under the Exchange Act, if so required by applicable law or regulation, and no successor Depository for such Securities shall have been appointed by the Issuer within 90 days of such notification or of the Issuer becoming aware of the Depository’s ceasing to be so registered, as the case may be, (ii) the Issuer, in its sole discretion, determines that the Securities of such series shall no longer be represented by one or more global Securities and the Issuer executes and delivers to the Trustee an Issuer Order to the effect that such global Securities shall be so exchangeable or (iii) an Event of Default has occurred and is continuing with respect to such Securities and the Depository or the Issuer specifically requests such exchange.
If the beneficial owners of interests in a global Security are entitled to exchange such interests for definitive Securities as the result of an event described in clause (i), (ii) or (iii) of the preceding paragraph, then without unnecessary delay but in any event not later than the earliest date on which such interests may be so exchanged, the Issuer shall deliver to the Trustee definitive Securities in such form and denominations as are required by or pursuant to this Indenture, and of the same series, containing identical terms and in aggregate principal amount equal to the principal amount of such global Security, executed by the Issuer. On or after the earliest date on which such interests may be so exchanged, such global Security shall be surrendered from time to time by the Depository (or its custodian) as shall be specified in the Issuer Order with respect thereto (which the Issuer agrees to deliver), and in accordance with instructions given to the Trustee and the Depository as shall be specified in the Issuer Order with respect thereto to the Trustee, as the Issuer’s agent for such purpose, to be exchanged, in whole or in part, for definitive Securities as
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described above without charge. The Trustee shall authenticate and make available for delivery, in exchange for each portion of such surrendered global Security, a like aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such global Security to be exchanged; provided, however, that no such exchanges may occur during a period beginning at the opening of business 15 days before any selection of Securities of the same series to be redeemed and ending on the relevant Redemption Date. Promptly following any such exchange in part, such global Security shall be returned by the Trustee to such Depository (or its custodian) or such other Depository (or its custodian) referred to above in accordance with the instructions of the Issuer referred to above, and the Trustee shall endorse such global Security to reflect the decrease in the principal amount thereof resulting from such exchange. If a Security is issued in exchange for any portion of a global Security after the close of business at the Office or Agency for such Security where such exchange occurs on or after (i) any Regular Record Date for such Security and before the opening of business at such Office or Agency on the next Interest Payment Date, or (ii) any Special Record Date for such Security and before the opening of business at such Office or Agency on the related proposed date for payment of interest or Defaulted Interest, as the case may be, interest shall not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Security, but shall be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person to whom interest in respect of such portion of such global Security shall be payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid, legally binding and enforceable obligations of the Issuer evidencing the same debt and entitling the Holders thereof to the same benefits under this Indenture as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Issuer or the Security Registrar for such Security) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar for such Security duly executed by the Holder thereof or their attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, or any redemption or repayment of Securities, or any conversion or exchange of Securities for other types of securities or property, but the Issuer 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 or 905, upon redemption pursuant to Section 1107 or repayment pursuant to Article 13, or upon surrender in part of any Security for conversion or exchange into Common Equity or other securities or property pursuant to its terms, in each case not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the Issuer shall not be required (i) to issue, register the transfer of or exchange any Securities during a period beginning at the opening of business 15 days before the day of the selection for redemption of Securities of like tenor and terms and of the same series under Section 1103 and ending at the close of business
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on the day of such selection, or (ii) to register the transfer of or exchange any Security, or portion thereof, so selected for redemption, except in the case of any Security to be redeemed in part, the portion thereof not to be redeemed, or (iii) to issue, register the transfer of or exchange any Security which, in accordance with its terms, has been surrendered for repayment at the option of the Holder pursuant to Article 13 and not withdrawn, except the portion, if any, of such Security not to be so repaid.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, subject to the provisions of this Section 306, the Issuer shall execute and, upon Issuer Order, the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series containing identical terms and of like principal amount and bearing a number not contemporaneously outstanding.
If there be delivered to the Issuer and to the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security, and (ii) such security or indemnity as may be reasonably required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Issuer or the Trustee that such Security has been acquired by a bona fide purchaser, the Issuer shall execute and, upon Issuer Order, the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Security, a new Security of the same series containing identical terms and of like principal amount and bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing provisions of this Section 306, in case any mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee and its legal counsel) connected therewith.
Every new Security issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute separate valid, legally binding and enforceable obligations of the Issuer, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of such series duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to this Indenture with respect to particular Securities or generally, shall (to the extent lawful) be 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.
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Section 307. Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional Amounts with respect to any Security which shall be payable, and are punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Security (or one or more Predecessor Securities) is registered as of the close of business on the Regular Record Date for such interest.
Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional Amounts with respect to any Security which shall be payable, but shall not be punctually paid or duly provided for, on any Interest Payment Date for such Security (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder thereof on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Issuer, at its election in each case, as provided in clause (1) or (2) below:
(1) The Issuer may elect to make payment of any Defaulted Interest to the Person in whose name such Security (or a Predecessor Security thereof) shall be 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 Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on such Security and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when so deposited to be held in trust for the benefit of the Person entitled to such Defaulted Interest as in this clause provided. Thereupon, the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Special Record Date and, in the name and at the expense of the Issuer 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 the Holder of such Security (or a Predecessor Security thereof) at their 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 Person in whose name such Security (or a Predecessor Security thereof) shall be registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2); or
(2) The Issuer may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Security may be listed, and upon such notice as may be required by such exchange, if, after written notice given by the Issuer to the Trustee of the proposed payment pursuant to this clause, such payment shall be deemed practicable by the Trustee.
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Unless otherwise provided in or pursuant to this Indenture or the Securities of any particular series, at the option of the Issuer, interest on Securities on any Interest Payment Date may be paid by mailing a check to the address of the Person entitled thereto as such address shall appear in the Security Register or by transfer to an account maintained by the payee with a bank located in the United States of America.
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 Security for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose name such Security is registered in the Security Register as the owner of such Security for the purpose of receiving payment of principal of, any premium and (subject to Sections 305 and 307) interest on and any Additional Amounts with respect to such Security and for all other purposes whatsoever, whether or not any payment with respect to such Security shall be overdue, and none of the Issuer, the Trustee or any agent of the Issuer or the Trustee shall be affected by notice to the contrary.
No owner of any beneficial interest in any global Security held on its behalf by a Depository shall have any rights under this Indenture with respect to such global Security, and such Depository may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the owner of such global Security for all purposes whatsoever. None of the Issuer, the Trustee or any agent of the Issuer or the Trustee 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.
Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the applicable Depository, as a Holder, with respect to a global Security or impair, as between such Depository and the owners of beneficial interests in such global Security, the operation of customary practices governing the exercise of the rights of such Depository (or its nominee) as the Holder of such global Security.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of transfer, exchange or conversion or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be promptly delivered to the Trustee, and any such Securities, as well as Securities surrendered directly to the Trustee for any such purpose, shall be cancelled promptly by the Trustee. The Issuer may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Issuer may have acquired in any manner whatsoever, and all Securities so delivered shall be cancelled promptly by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by or pursuant to this Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures, unless by an Issuer Order the Issuer directs their return to it.
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Section 310. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in the Securities of any series, interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 311. Identification Numbers.
The Issuer in issuing the Securities may use CUSIP, ISIN and Common Code identification numbers (if then generally in use), and, if so, the Trustee shall use all applicable identification 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 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 identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Trustee in writing of any change in any identification number.
ARTICLE 4
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge.
Unless, pursuant to Section 301, the provisions of this Section 401 shall not be applicable with respect to the Securities of any series, upon the direction of the Issuer by an Issuer Order, this Indenture shall cease to be of further effect with respect to any series of Securities specified in such Issuer Order and the Trustee, on receipt of an Issuer Order, at the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when
(1) either
(a) all Securities of such series theretofore authenticated and delivered (other than (i) Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306, and (ii) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer or any Affiliate of the Issuer and thereafter repaid to the Issuer or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or
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(b) all Securities of such series not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) if redeemable at the option of the Issuer, are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee, in trust for such purpose for the Holders thereof, money in the Currency in which such Securities is payable in an amount sufficient to pay and discharge the entire indebtedness represented by such Securities, including, without limitation, the principal of, any premium and interest on, and, to the extent that the Securities of such series provide for the payment of Additional Amounts thereon and the amount of any such Additional Amounts which are or will be payable with respect to the Securities of such series is at the time of deposit determinable by the Issuer (in the exercise by the Issuer of its reasonable discretion), any Additional Amounts with respect to, such Securities, to the date of such deposit (in the case of Securities which have become due and payable) or to the Maturity thereof, as the case may be;
(2) the Issuer has paid or caused to be paid all other sums payable hereunder by the Issuer with respect to the Outstanding Securities of such series (including amounts payable to the Trustee pursuant to Section 606); and
(3) the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to the Securities of such series have been complied with.
In the event there are Securities of two or more series Outstanding hereunder, the Trustee shall be required to execute an instrument acknowledging satisfaction and discharge of this Indenture only if requested to do so with respect to Securities of such series as to which it is Trustee, if in form and content reasonably acceptable to the Trustee and if the other conditions thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of Securities, the obligations of the Issuer to the Trustee under Section 606 and, if money shall have been deposited with the Trustee pursuant to subclause (b) of clause (1) of this Section, the obligations of the Issuer and the Trustee with respect to the Securities of such series under Sections 305, 306, 403, 404, 1002, 1003 and, if applicable to the Securities of such series, 1004 (including,
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without limitation, with respect to the payment of Additional Amounts, if any, with respect to such Securities as contemplated by Section 1004, but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 401(1)(b)), any rights of Holders of the Securities of such series (unless otherwise provided pursuant to Section 301 with respect to the Securities of such series) to require the Issuer to repurchase or repay, and the obligations of the Issuer to repurchase or repay, such Securities at the option of the Holders pursuant to Article 13 hereof, and any rights of Holders of the Securities of such series (unless otherwise provided pursuant to Section 301 with respect to the Securities of such series) to convert or exchange, and the obligations of the Issuer to convert or exchange, such Securities into Common Equity or other securities or property, shall survive.
Section 402. Legal Defeasance and Covenant Defeasance.
(1) Unless, pursuant to Section 301, either or both of (i) legal defeasance of the Securities of or within a series under clause (2) of this Section 402 or (ii) covenant defeasance of the Securities of or within a series under clause (3) of this Section 402 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 402 (with such modifications thereto as may be specified pursuant to Section 301 with respect to any Securities), shall be applicable to such Securities, and the Issuer may at its option by Board Resolution, at any time, with respect to the Securities of or within such series, elect to have Section 402(2) or Section 402(3) be applied to such Outstanding Securities upon compliance with the conditions set forth below in this Section 402. Unless otherwise specified pursuant to Section 301 with respect to the Securities of any series, legal defeasance under clause (2) of this Section 402 and covenant defeasance under clause (3) of this Section 402 may be effected only with respect to all, and not less than all, of the Outstanding Securities of any series. To the extent that the terms of any Security established in or pursuant to this Indenture permit the Issuer or any Holder thereof to extend the date on which any payment of principal of, or premium, if any, or interest, if any, on, or Additional Amounts, if any, with respect to such Security is due and payable, then unless otherwise provided pursuant to Section 301, the right to extend such date shall terminate upon legal defeasance or covenant defeasance, as the case may be.
(2) Upon the Issuer’s exercise of the above option applicable to this Section 402(2) with respect to any Securities of or within a series, the Issuer shall be deemed to have been discharged from all of their respective obligations with respect to such Outstanding Securities on the date the conditions set forth in clause (4) of this Section 402 are satisfied (hereinafter, “legal defeasance”). For this purpose, such legal defeasance means that the Issuer shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Securities, which shall thereafter be deemed to be “Outstanding” only for the purposes of clause (5) of this Section 402 and the other Sections of this Indenture referred to in subclauses (i) through (iv) of this clause (2), and to have satisfied all of its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following which shall survive until
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otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Securities to receive, solely (except as provided in subclause (ii) below) from the trust fund described in clause (4)(a) of this Section 402 and as more fully set forth in this Section 402 and 403, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Securities when such payments are due, (ii) the obligations of the Issuer and the Trustee with respect to such Securities under Sections 305, 306, 1002, 1003 and, if applicable to the Securities of such series, 1004 (including, without limitation, with respect to the payment of Additional Amounts, if any, with respect to such Securities as contemplated by Section 1004, but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to clause (4)(a) of this Section 402), any rights of Holders of such Securities (unless otherwise provided pursuant to Section 301 with respect to the Securities of such series) to require the Issuer to repurchase or repay at their option pursuant to Article 13 hereof, and the obligations of the Issuer to repurchase or repay upon exercise of such option or otherwise, such Securities, and any rights of Holders of such Securities (unless otherwise provided pursuant to Section 301 with respect to the Securities of such series) to convert or exchange, and the obligations of the Issuer to convert or exchange, such Securities into Common Equity or other securities or property, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 402 and Sections 403 and 404. The Issuer may exercise its option under this Section 402(2) notwithstanding the prior exercise of its option under Section 402(3) with respect to such Securities.
(3) Upon the Issuer’s exercise of the above option applicable to this Section 402(3) with respect to any Securities of or within a series, each of the Issuer shall be released from its obligations to the extent specified pursuant to Section 301, any covenant applicable to such Securities with respect to such Securities shall cease to be applicable to such Securities on and after the date the conditions set forth in clause (4) of this Section 402 are satisfied (hereinafter, “covenant defeasance”), and such Securities shall thereafter be deemed to be 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 any such covenant, but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such covenant defeasance means, with respect to such Outstanding Securities, each of the Issuer may omit to comply with, and shall have no liability in respect of, any term, condition or limitation set forth in any such Section or any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply shall not constitute a default or an Event of Default under Section 501(5) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Securities shall be unaffected thereby.
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(4) The following shall be the conditions to application of clause (2) or (3) of this Section 402 to any Outstanding Securities of or within a series:
(a) The Issuer shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 607 who shall agree to comply with the provisions of this Section 402 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (1) an amount in Dollars or in such Foreign Currency in which such Securities are then specified as payable at Stated Maturity or, if such defeasance or covenant defeasance is to be effected in compliance with subsection (f) below, on the relevant Redemption Date, as the case may be, or (2) Government Obligations applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity or, if such defeasance or covenant defeasance is to be effected in compliance with subsection (f) below, on the relevant Redemption Date, as the case may be) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Securities, money in an amount, or (3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the written opinion of a nationally recognized firm of independent public accountants or a nationally recognized investment bank delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, and, to the extent that such Securities provide for the payment of Additional Amounts thereon and the amount of any such Additional Amounts which are or will be payable with respect to the Securities of such series is at the time of deposit reasonably determinable by the Issuer (in the exercise by the Issuer of its reasonable discretion), any Additional Amounts with respect to, such Securities at the Stated Maturities of such principal and interest, and (z) any mandatory sinking fund payments or analogous payments applicable to such Securities on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities.
(b) Such legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Issuer is a party or by which it is bound.
(c) No Event of Default or event which, with notice or lapse of time or both, would become an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit, and, solely in the case of defeasance under Section 402(2), no Event of Default with respect to such Securities under clause (7) or (8) of Section 501 or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities under clause (7) or (8) of Section 501 shall have occurred and be continuing at any time during the period ending on and including the 91st day after the date of such deposit (it being understood that this condition to legal defeasance under Section 402(2) shall not be deemed satisfied until the expiration of such period).
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(d) In the case of legal defeasance pursuant to Section 402(2), the Issuer shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Issuer has received from, or there has been published by, the U.S. Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders and beneficial owners of such Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such 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 defeasance had not occurred; or, in the case of covenant defeasance pursuant to Section 402(3), the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders and beneficial owners of such Securities 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 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 covenant defeasance had not occurred.
(e) The Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the legal defeasance or covenant defeasance, as the case may be, under this Indenture have been complied with.
(f) If the monies or Government Obligations or combination thereof, as the case may be, deposited under subclause (a) above are sufficient to pay the principal of, and premium, if any, and interest, if any, on and, to the extent provided in such subclause (a), Additional Amounts with respect to, such Securities on a particular Redemption Date, the Issuer shall have given the Trustee irrevocable instructions to redeem such Securities on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture.
(g) Notwithstanding any other provisions of this Section 402(4), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Issuer in connection therewith pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (or other property as may be provided pursuant to Section 301) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee (collectively for purposes of this Section 402(5) and Section 403, the “Trustee”)) pursuant to clause (4)(a) of Section 402 in respect of any Outstanding Securities of any series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent
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(other than the Issuer or any Affiliate of the Issuer acting as Paying Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal (and premium, if any) and interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law.
Unless otherwise specified in or pursuant to this Indenture or any Securities, if, after a deposit referred to in Section 402(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 301 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 402(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 402(4)(a) has been made, the indebtedness represented by such Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to subclause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event.
The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 402 or the principal or 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 such Outstanding Securities.
Anything in this Section 402 to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon Issuer Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4)(a) of this Section 402 which, in the written opinion of a nationally recognized firm of independent public accountants or a nationally recognized investment bank delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 402.
Section 403. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations deposited with the Trustee pursuant to Section 401 or 402 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, interest and Additional Amounts for whose payment such money has or Government Obligations have been deposited with or received by the Trustee; but such money and Government Obligations need not be segregated from other funds except to the extent required by law.
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Section 404. Reinstatement.
If the Trustee (or other qualifying trustee appointed pursuant to Section 402(4)(a)) or any Paying Agent is unable to apply any moneys or Government Obligations deposited pursuant to Section 401(1) or 402(4)(a) to pay any principal of or premium, if any, or interest, if any, on or Additional Amounts, if any, with respect to the Securities of any series by reason of any legal proceeding or any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuer’s obligations under this Indenture and the Securities of such series shall be revived and reinstated as though no such deposit had occurred, until such time as the Trustee (or other qualifying trustee) or Paying Agent is permitted to apply all such moneys and Government Obligations to pay the principal of and premium, if any, and interest, if any, on and Additional Amounts, if any, in respect of the Securities of such series as contemplated by Section 401 or 402 as the case may be, and Section 403; provided, however, that if the Issuer makes any payment of the principal of or premium, if any, or interest, if any, on or Additional Amounts, if any, in respect of the Securities of such series following the reinstatement of its obligations as aforesaid, the Issuer shall be subrogated to the rights of the Holders of such Securities to receive such payment from the funds held by the Trustee (or other qualifying trustee) or Paying Agent.
ARTICLE 5
REMEDIES
Section 501. Events of Default.
“Event of Default,” wherever used herein with respect to Securities of any series, means any one of the following events unless such event is specifically deleted or modified in or pursuant to the supplemental indenture, Board Resolution or Officers’ Certificate of the Issuer establishing the terms of such series pursuant to this Indenture:
(1) default in the payment of any interest on, or any Additional Amounts payable in respect of any interest on, any of the Securities of such series when such interest or such Additional Amounts, as the case may be, become due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of any principal of or premium, if any, on, or any Additional Amounts payable in respect of any principal of or premium, if any, on, any of the Securities of such series when due (whether at Maturity or otherwise and whether payable in cash or in shares of Common Equity or other securities or property); or
(3) default in the deposit of any sinking fund payment, if applicable, or payment under any analogous provision when due with respect to any of the Securities of such series; or
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(4) if the Securities of such series are entitled to the benefits of any guarantee, such guarantee is not, or is claimed by the applicable guarantor not to be, in full force and effect at any time with respect to the outstanding Securities of such series; or
(5) default in the performance or observance, or breach, of any covenant or other agreement of the Issuer in this Indenture or any of the Securities of such series (other than a covenant or other agreement for which the consequences of a default or breach are addressed elsewhere in this Section 501 or a covenant or other agreement which has expressly been included in this Indenture, whether or not by means of a supplemental indenture, solely for the benefit of Securities of a series other than such series), and continuance of such default or breach (without such default or breach having been waived in accordance of the provisions of this Indenture) for a period of 60 days after there has been given written notice of such default or breach to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of such series and requiring such default or breach to be remedied; or
(6) [Reserved]
(7) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Issuer in an involuntary case or proceeding or (B) a decree or order for relief adjudging the Issuer as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer under the Bankruptcy Code or any other similar applicable U.S. federal or state law, or appointing a custodian, receiver, conservator, liquidator, trustee or assignee in bankruptcy or insolvency or other similar official of the Issuer or of any substantial part of the property of the Issuer, or ordering the winding up or liquidation of the affairs of the Issuer, and, in each case, the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
(8) the commencement by the Issuer of a voluntary case or proceeding or of any other case or proceeding to be adjudicated as bankrupt or insolvent, or the consent by the Issuer to the entry of a decree or order for relief in respect of the Issuer in an involuntary case or proceeding or to the commencement of any bankruptcy or insolvency case or proceeding against the Issuer, or the filing by the Issuer of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition, in each case, under the Bankruptcy Code or any other similar applicable U.S. federal or state law, or the consent by the Issuer to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, conservator, liquidator, trustee, or assignee in bankruptcy or insolvency or other similar official of the Issuer or of any substantial part of the property of the Issuer, or the making by Issuer of an assignment for the benefit of creditors, or the taking of corporate, company, partnership or other organizational, as applicable, action by the Issuer in furtherance of any such action, or an admission in writing by the Issuer of its inability to pay its debts generally as they become due; or
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(9) any other Event of Default provided in or pursuant to this Indenture with respect to Securities of such series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in clause (7) or (8) of Section 501) with respect to Securities of any series occurs and is continuing, then either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of such series may declare the principal of, and any premium due on, or such lesser amount as may be provided for in the terms of the Securities of such series, and any accrued and unpaid interest on, all of the Securities of such series to be due and payable immediately, by a notice in writing to the Issuer (and to the Trustee if given by the Holders), and upon any such declaration such principal, such premium or such lesser amount, as the case may be, and such accrued and unpaid interest shall become immediately due and payable.
At any time after a declaration of acceleration with respect to the Securities of any series has been made but Trustee or the Holders and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series, by written notice to the Issuer and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Issuer has paid or deposited, or cause to be paid or deposited, with the Trustee a sum of money sufficient to pay (or, to the extent that the terms of the Securities of such series established pursuant to Section 301 expressly provide for payment to be made in shares of Common Equity or other securities or property, shares of Common Equity or other securities or property, together with cash in lieu of fractional shares or securities, sufficient to pay):
(a) all overdue installments of any interest on any Securities of such series which have become due otherwise than solely by such declaration of acceleration and any Additional Amounts with respect thereto,
(b) the principal of and any premium on any Securities of such series which have become due otherwise than solely by such declaration of acceleration and any Additional Amounts with respect thereto and, to the extent permitted by applicable law, interest thereon at the rate or respective rates, as the case may be, provided for in or with respect to such Securities, or, if no such rate or rates are so provided, at the rate or respective rates, as the case may be, of interest borne by such Securities,
(c) to the extent permitted by applicable law, interest upon installments of any interest, if any, which have become due otherwise than solely by such declaration of acceleration and any Additional Amounts with respect thereto at the rate or respective rates, as the case may be, provided for in or with respect to such Securities, or, if no such rate or rates are so provided, at the rate or respective rates, as the case may be, of interest borne by such Securities, and
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(d) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and all other amounts due the Trustee under Section 606; and
(2) all Events of Default with respect to Securities of such series other than the non-payment of the principal of, any premium and interest on, and any Additional Amounts with respect to Securities of such series which shall have become due solely by such declaration of acceleration, shall have been cured or waived as provided in Section 513 or cured.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
If an Event of Default specified in clause (7) or (8) of Section 501 with respect to the Securities of any series occurs, then the principal of, and any premium due on, or such lesser amount as may be provided for in the Securities of such series, and accrued and unpaid interest, if any, on all of the Securities of such series shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder of the Securities of such series.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Issuer covenants that if:
(1) default is made in the payment of any interest on, or any Additional Amounts payable in respect of any interest on, any Security when such interest or Additional Amounts, as the case may be, shall have become due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of any principal of or premium, if any, on, or any Additional Amounts payable in respect of any principal of or premium, if any, on, any Security at its Maturity, and such default continues for three Business Days, or
(3) default is made in the deposit of any sinking fund payment, if applicable, when due, and such default continues for three Business Days,
the Issuer shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities, the whole amount of money then due and payable with respect to such Securities, with interest upon the overdue principal, any premium and, to the extent permitted by applicable law, upon any overdue installments of interest and Additional Amounts at the rate or respective rates, as the case may be, provided for or with respect to such Securities or, if no such rate or rates are so provided, at the rate or respective rates, as the case may be, of interest borne by such Securities, and, in addition thereto, such further amount of money as shall be sufficient to cover the reasonable costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and all other amounts due to the Trustee under Section 606.
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If each of the Issuer fails to pay the money it is required to pay the Trustee pursuant to the preceding paragraph forthwith upon the demand of the Trustee, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the money so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Issuer or any other obligor upon such Securities and collect the monies adjudged or decreed to be payable in the manner provided by law out of the property of the Issuer or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the 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 such Securities or in aid of the exercise of any power granted herein or therein, 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 relative to the Issuer or any other obligor upon the Securities of a series or the property of the Issuer or such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities of such series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Issuer for the payment of any overdue principal, premium, interest or Additional Amounts) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such lesser amount as may be provided for in the Securities of such series, of the principal and any premium, interest and Additional Amounts owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents or counsel) and of the Holders of Securities allowed in such judicial proceeding, and
(2) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder of Securities to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders of Securities, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee (acting in any capacity hereunder), its agents and counsel and any other amounts due the Trustee hereunder.
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Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of a Security in any such proceeding.
Section 505. Trustee May Enforce Claims without Possession of Securities.
All rights of action and claims under this Indenture or any of the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery or judgment, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, shall be for the ratable benefit of each and every Holder of a Security in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article 5 with respect to the Securities of any series shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal, or any premium, interest or Additional Amounts, upon presentation of such Securities, 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 the Trustee (acting in any capacity hereunder) and any predecessor Trustee under this Indenture;
SECOND: To the payment of the amounts then due and unpaid upon the Securities for principal and any premium, interest and Additional Amounts 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 aggregate amounts due and payable on such Securities for principal and any premium, interest and Additional Amounts; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 507. Limitations on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture or such Security, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of such series;
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(2) the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of such series shall have made written request to the Trustee to institute a proceeding in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity or security reasonably satisfactory to it against the losses, damages, costs, expenses and liabilities, including reasonable attorneys’ fees, costs and expenses and court costs, to be incurred in compliance with such request;
(4) the 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 the Trustee during such 60-day period by the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture or any Security to affect, disturb or prejudice the rights of any other such Holders or Holders of Securities of any other series, or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
Section 508. Unconditional Right of Holders to Receive Principal and any Premium, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of, and premium, if any, and (subject to Sections 305 and 307) interest, if any, on and any Additional Amounts with respect to such Security on the respective Stated Maturity or Maturities therefor specified in such Security (or, in the case of redemption, on the Redemption Date or, in the case of repayment pursuant to Article 13 hereof at the option of such Holder if provided in or pursuant to this Indenture, on the date such repayment is due) and, in the case of any Security which is convertible into or exchangeable for other securities or property, to convert or exchange, as the case may be, such Security in accordance with its terms, and to institute suit for the enforcement of any such payment and any such right to convert or exchange, and such right shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security 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 the Trustee or to such Holder, then and in every such case the Issuer, the Trustee and each such Holder 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 the Trustee and each such Holder shall continue as though no such proceeding had been instituted.
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Section 510. Rights and Remedies Cumulative.
To the extent permitted by applicable law and except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to each and every Holder of a Security is intended to be exclusive of any other right or remedy, and every right and remedy, to the extent permitted by law, shall 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, to the extent permitted by law, 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 or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall, to the extent permitted by applicable law, 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 the Trustee or to any Holder of a Security may, to the extent permitted by applicable law, be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by such Holder, as the case may be.
Section 512. Control by Holders of Securities.
The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Securities of such series; provided that:
(1) such direction shall not be in conflict with any rule of law or with this Indenture or the Securities of any series;
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(3) such direction is not unduly prejudicial to the rights of the other Holders of Securities of such series (or any other series) not joining in such action.
Section 513. Waiver of Continuing Defaults.
The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series on behalf of the Holders of all the Securities of such series may waive any continuing default hereunder with respect to such series and its consequences, except:
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(1) a continuing default in the payment of the principal of, any premium or interest on, or any Additional Amounts with respect to, any Security of such series; or
(2) in the case of any Securities which are convertible into or exchangeable for Common Equity or other securities or property, a continuing default in any such conversion or exchange; or
(3) a continuing default in respect of a covenant or provision hereof which under Article 9 cannot be modified or amended without the consent of the Holder of each Outstanding Security of such 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. Waiver of Usury, Stay or Extension Laws.
Each of the Issuer covenants that (to the extent that it may lawfully do so) 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 or any usury law or any other law wherever enacted, now or at any time hereafter in force, which would prohibit or forgive the Issuer from paying all or any portion of the principal of or premium, if any, or interest, if any on or Additional Amounts, if any, as contemplated in this Indenture and the Securities or which may affect the covenants or the performance of this Indenture or the Securities; and the Issuer (to the extent that it may lawfully do so) 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 or the Holders, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by their 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 any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of any undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and disbursements, 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 515 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in aggregate principal amount of Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest, if any, on or Additional Amounts, if any, with respect to any Security on or after the respective Stated Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date, and, in the case of repayment at the option of the Holder pursuant to Article 13 hereof, on or after the date for repayment) or for the enforcement of the right, if any, to convert or exchange any Security into Common Equity or other securities or property in accordance with its terms.
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ARTICLE 6
THE TRUSTEE
Section 601. Certain Rights of Trustee.
In connection with this Indenture and any Securities issued hereunder, subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Issuer mentioned herein shall be sufficiently evidenced by an Issuer Request or an Issuer Order (in each case, other than delivery of any Security 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 may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence shall be herein specifically prescribed) may, in the absence of bad faith on its part, require an Officers’ Certificate and/or an Opinion of Counsel in form and substance reasonably acceptable to the Trustee, and the Trustee may conclusively rely upon any such Officers’ Certificate or Opinion of Counsel;
(4) the 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;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by or pursuant to this Indenture at the request or direction of any of the Holders of Securities of any series pursuant to this Indenture, unless such Holders shall have offered to the Trustee indemnity or security reasonably satisfactory to the Trustee against the losses, damages, costs, expenses and liabilities, including reasonable attorneys’ fees, costs and expenses and court costs, which might be incurred by it in compliance with such request or direction;
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(6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, coupon or other paper or document, but the Trustee, in its sole discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any willful misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(8) the Trustee need perform only those duties that are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee. The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers; provided that the Trustee’s conduct does not constitute negligence or willful misconduct; the Trustee is not required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under this Indenture; and the permissive right of the Trustee to take the actions permitted by this Indenture shall not be construed as an obligation or duty to do so;
(9) the Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail (PDF only), facsimile transmission or other similar unsecured electronic methods; provided, however, that the Issuer shall provide to the Trustee an incumbency certificate listing designated persons with the authority to provide such instructions, which incumbency certificate shall be amended whenever a person is to be added or deleted from the listing; if the Issuer elects to give the Trustee e-mail or facsimile transmission instructions (or instructions by a similar electronic method) and the Trustee in its sole and absolute discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling; the Trustee shall not be liable for any losses, damages, costs, fees or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or inconsistency with a subsequent written instruction; and the Issuer agree to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including, without limitation, the risk of the Trustee acting on unauthorized instructions, and the risk of interception by third parties;
(10) 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;
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(11) in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; and
(12) in no event shall the Trustee be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
Section 602. Notice of Defaults.
Within 60 days after the Trustee has actual knowledge of the occurrence of any default hereunder with respect to the Securities of any series, the Trustee shall transmit by mail to all Holders of Securities of such series notice of such default hereunder actually known to the Trustee, unless such default shall have been cured or waived; provided, however, that in the case of any default or breach of the character specified in clause (5) of Section 501 with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. 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 such series; provided that any default that results solely from the taking of an action that would have been permitted but for the continuation of a previous default will be deemed to be cured if such previous default is cured prior to becoming an Event of Default. The Trustee shall not be charged with knowledge of any default or Event of Default under this Indenture or related documents unless (i) a Responsible Officer of the Trustee shall have actual knowledge of such default or Event of Default or (ii) the Trustee shall have received notice in writing of such default or Event of Default by the Issuer or by the Holders of at least 25% in aggregate principal amount of the Securities then Outstanding of the affected series, and such notice is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture.
Section 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificate of authentication, shall be taken as the statements of the Issuer, as the case may be, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities, 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 Issuer are true and accurate, subject to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Issuer of the Securities or the proceeds thereof.
Section 604. May Hold Securities; Transactions with the Issuer.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other Person that may be an agent of the Trustee or the Issuer, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with the Issuer with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other Person; provided, however, that if the Trustee acquires any conflicting interest relating to any of its duties with respect to the Securities, it must either eliminate such conflict or resign as Trustee.
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Section 605. Money Held in Trust.
Except as provided in Section 403 and Section 1003, money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law and shall be held uninvested. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Issuer.
Section 606. Compensation and Reimbursement.
The Issuer agrees:
(1) to pay to the Trustee from time to time such compensation as agreed in writing for all services rendered by the Trustee (in any capacity hereunder) (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 (acting in any capacity hereunder) upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel, such as attorneys’ fees, costs and expenses), except any such expense, disbursement or advance as may be attributable to the Trustee’s negligence or willful misconduct; and
(3) to indemnify the Trustee (acting in any capacity hereunder), its directors, officers, employees and its agents for, and to hold them harmless against, any loss, claim, cause of action, damage, liability or reasonable cost or expense (including, without limitation, the reasonable fees and disbursements of the Trustee’s agents, legal counsel, accountants and experts), arising out of or in connection with this Indenture or the acceptance or administration of the trust or trusts hereunder, including the reasonable costs and expenses of defending themselves against any claim (whether asserted by the Issuer, a Holder or any other Person) or liability in connection with the exercise or performance of any of their powers or duties hereunder, except to the extent that any such loss, claim, cause of action, damage, liability, cost or expense was due to the Trustee’s negligence or willful misconduct; the Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity; failure by the Trustee to so notify the Issuer shall not relieve the Issuer of its obligations hereunder, unless and to the extent that the Issuer is materially prejudiced thereby; the Issuer shall defend the claim and the Trustee shall cooperate in the defense; the Trustee may have one separate counsel and the Issuer shall pay the reasonable fees and expenses of such counsel; and the Issuer need not pay for any settlement made without their consent, which consent will not be unreasonably withheld or delayed.
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The foregoing payment obligations and indemnities shall survive the termination of this Indenture and the resignation or removal of the Trustee.
As security for the performance of the obligations of the Issuer under this Section, the Trustee shall have a lien prior to the Securities of any series upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of, or premium or interest on or any Additional Amounts with respect to Securities.
Any compensation or expense incurred by the Trustee after a default specified by Section 501(7) or (8) is intended to constitute an expense of administration under any then applicable bankruptcy or insolvency law. “Trustee” for purposes of this Section 606 shall include any predecessor Trustee but the negligence or willful misconduct of any Trustee shall not affect the rights of any other Trustee under this Section 606. The provisions of this Section 606 shall, to the extent permitted by law, survive any termination or expiration of this Indenture (including, without limitation, termination pursuant to any bankruptcy or insolvency laws) and the resignation or removal of the Trustee.
Section 607. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a Corporation, organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, eligible under Section 310(a)(1) of the Trust Indenture Act to act as trustee under an indenture qualified under the Trust Indenture Act and that has a combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000 subject to supervision or examination by federal or state authority. 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 hereinafter specified in this Article.
Section 608. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee pursuant to Section 609.
(2) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Issuer. If the instrument of acceptance by a successor Trustee required by Section 609 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the Issuer, any court of competent jurisdiction for the appointment of a successor Trustee with respect to such series.
(3) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series, delivered to the Trustee and the Issuer. If the instrument of acceptance by a successor Trustee required by Section 609 shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may petition, at the expense of the Issuer, any court of competent jurisdiction for the appointment of a successor Trustee with respect to such series.
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(4) If at any time:
(a) the Trustee shall fail to comply with the obligations imposed upon it under Section 310(b) of the Trust Indenture Act with respect to Securities of any series after written request therefor by the Issuer or any Holder of a Security of such series who has been a bona fide Holder of a Security of such series for at least six months, or
(b) the Trustee shall cease to be eligible under Section 607 and shall fail to resign after written request therefor by the Issuer or any such Holder, or
(c) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer, by or pursuant to a Board Resolution, may remove the Trustee with respect to all Securities or the Securities of such series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder of a Security who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of themself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities of such series and the appointment of a successor Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Issuer, by or pursuant to a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 609. 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 any series shall be appointed by Act of the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series delivered to the Issuer and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 609, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Issuer. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Issuer or the Holders of Securities and accepted appointment in the manner required by Section 609, any Holder of a Security who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of themself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
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(6) The Issuer 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 by mailing written notice of such event by first-class mail, postage prepaid, to the Holders of Securities, if any, of such series as their names and addresses appear in the Security Register.
Section 609. Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee with respect to all Securities, such successor Trustee so appointed shall execute, acknowledge and deliver to the Issuer and 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 hereunder of the retiring Trustee; but, on the request of the Issuer or such successor Trustee, such retiring Trustee, upon payment of its charges, shall execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and, subject to Section 1003, shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject nevertheless to its claim, if any, provided for in Section 606.
(2) Upon the appointment hereunder of any successor Trustee with respect to the Securities of one or more (but not all) series, the Issuer, the retiring Trustee and such successor Trustee 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, such 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, that each such Trustee shall be separate and apart from any other such Trustee and that no Trustee shall be responsible for any notice given to, or received by, or any act or failure to act on the part of any other Trustee hereunder, 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, such retiring Trustee shall have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under
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this Indenture with respect to the Securities of that or those series to which the appointment of such successor Trustee relates other than as hereinafter expressly set forth, 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 with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on written request of the Issuer or such successor Trustee, such retiring Trustee, upon payment of its charges with respect to the Securities of that or those series to which the appointment of such successor relates and subject to Section 1003 shall duly assign, transfer and deliver to such successor Trustee, to the extent contemplated by such supplemental indenture, the 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, subject to its claim, if any, provided for in Section 606.
(3) Upon request of any Person appointed hereunder as a successor Trustee, the Issuer 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 paragraph (1) or (2) of this Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a successor Trustee unless at the time of such acceptance such successor Person shall be qualified and eligible under this Article.
Section 610. Merger, Conversion, Consolidation or Succession to Business.
Any Corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any Corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any Corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder (provided that such Corporation shall otherwise be 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 then in office, any such successor to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. In case any Securities shall not have been authenticated by such predecessor Trustee, any such successor Trustee may authenticate and deliver such Securities in either its own name or that of its predecessor Trustee.
Section 611. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable to the Issuer with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of that or those series issued upon original issue, exchange, registration of transfer, partial redemption, partial repayment, partial conversion or exchange for Common Equity or other securities or property, or pursuant to Section 306, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be legally valid, binding and enforceable obligations (subject to customary exceptions) for all purposes as if authenticated by the Trustee
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hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Issuer and, except as provided in or pursuant to this Indenture, shall at all times be a Corporation that would be permitted under the Trust Indenture Act to act as trustee under an indenture qualified under the Trust Indenture Act, is authorized under applicable law and by its charter to act as an Authenticating Agent and has a combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect specified in this Section.
Any Corporation into which an Authenticating Agent 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 Authenticating Agent shall be a party, or any Corporation succeeding to all or substantially all of the corporate agency or corporate trust business of an Authenticating Agent, shall be the successor of such Authenticating Agent hereunder; provided that such Corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and the Issuer. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and the Issuer. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Issuer and shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of Securities, if any, of the series with respect to which such Authenticating Agent shall serve, as their names and addresses appear in the Security Register. 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.
The Issuer agrees to pay each Authenticating Agent from time to time reasonable compensation for its services under this Section. If the Trustee makes such payments, it shall be entitled to be reimbursed for such payments, subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable to each Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more series of Securities pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to or in lieu of the Trustee’s certificate of authentication, an alternate certificate of authentication in substantially the following form:
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This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
| [________________], as Authenticating Agent | ||
| By: |
| |
| Authorized Signatory | ||
| Dated: | ||
If all of the Securities of any series may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the Issuer wishes to have Securities of such series authenticated upon original issuance, the Trustee, if so requested in writing (which writing need not be accompanied by or contained in an Officers’ Certificate of the Issuer), shall appoint in accordance with this Section an Authenticating Agent having an office in a Place of Payment designated by the Issuer with respect to such series of Securities.
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND THE ISSUER
Section 701. Issuer to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the Issuer shall furnish or cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each series not later than [_________] 1 and [_________] 1 of each year or upon such other dates as are set forth in or pursuant to the Board Resolution or indenture supplemental hereto authorizing such series, a list, in each case, in such form as the Trustee may reasonably require, of the names and addresses of Holders as of the applicable date, and
(2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Issuer 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;
provided, however, that so long as the Trustee is the Security Registrar no such list shall be required to be furnished.
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Section 702. Preservation of Information; Communications to Holders.
(1) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee shall comply with the obligations imposed upon it pursuant to Section 312 of the Trust Indenture Act.
(2) Every Holder of Securities, by receiving and holding the same, agrees with the Issuer and the Trustee that none of the Issuer or the Trustee or any agent of any 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 Securities in accordance with the Trust Indenture Act, regardless of the source from which such information was derived.
Section 703. Reports by Trustee.
(1) Within 60 days after [______] 15 of each year commencing with the first [_______] 15 following the first issuance of Securities pursuant to Section 301, if required under Section 313(a) of the Trust Indenture Act, the Trustee shall transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief report dated as of such [_______] 15 with respect to any of the events specified in said Sections 313(a) and 313(b)(2) which may have occurred since the later of the immediately preceding [__] 15 and the date of this Indenture.
(2) The Trustee shall transmit the reports required under the Trust Indenture Act, including Sections 313(a), (c) and (d), at the times, in the manner and to the Persons specified therein.
(3) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and the Issuer.
Section 704. Reports by the Issuer.
Each of the Issuer shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to Section 314(a) of the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided, that any such information, documents or reports filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is so required to be filed with the Commission.
The Issuer’s filing of any quarterly or annual report or other information, document or other report with the Commission pursuant to Section 13 or 15(d) of the Exchange Act on the Commission’s EDGAR system shall be deemed to constitute delivery of such filing to the Trustee and the Holders. The Trustee shall have no obligation whatsoever to determine whether or not such information, documents, or reports have been so filed.
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ARTICLE 8
CONSOLIDATION, MERGER, SALES AND SUBSTITUTION
Section 801. Issuer May Consolidate, Etc., Only on Certain Terms.
The Issuer shall not, in any transaction or series of related transactions, consolidate or amalgamate with or merge with or into any Person or sell, assign, transfer, lease or otherwise convey all or substantially all its assets to any Person unless:
(1) either (A) the Issuer shall be the continuing, successor or surviving Person, or (B) the successor Person (if other than the Issuer) formed by or resulting from such consolidation, amalgamation or merger, or to whom such sale, assignment, transfer, lease or other conveyance of all or substantially all of the assets of the Issuer is made, (i) shall be a corporation, limited liability company, partnership or other entity organized and existing under the laws of the United States of America, any state thereof or the District of Columbia or any territory of the United States of America and (ii) shall, by an indenture (or indentures, if at such time there is more than one Trustee) supplemental hereto, executed by such successor Person and delivered to the Trustee, in form satisfactory to the Trustee, expressly assume the due and punctual performance and observance of every obligation in this Indenture and the Outstanding Securities on the part of the Issuer to be performed or observed and shall provide for the conversion or exchange rights in accordance with the provisions of the Outstanding Securities of any series that are convertible or exchangeable into Common Equity or other securities or property;
(2) immediately after giving effect to such transaction or series of related transactions, no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; and
(3) the Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger, sale, assignment, transfer, lease or other conveyance and, if a supplemental indenture is required in connection with such transaction or series of related transactions, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction or series of related transactions have been complied with.
For purposes of the foregoing, any sale, assignment, transfer, lease or other conveyance of all or any of the assets of one or more Subsidiaries of the Issuer to any Person other than to the Issuer or another Subsidiary, whether directly or as part of a consolidation, amalgamation or merger, which, if such assets were owned by the Issuer would constitute all or substantially all of the Issuer’s assets, shall be deemed to be the conveyance of all or substantially all of the assets of the Issuer to any such Person within the meaning of this Section 801.
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Section 802. [Reserved]
Section 803. Successor Person Substituted for Issuer.
If the Issuer shall, in any transaction or series of related transactions, consolidate or amalgamate with or merge with or into any Person or sell, assign, transfer, lease or otherwise convey all or substantially all its assets to any Person, in accordance with Section 801, the successor Person formed by or resulting from such consolidation, amalgamation or merger or to whom such sale, assignment, transfer, lease or other conveyance of all or substantially all of the assets of the Issuer is made, shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture, with respect to the Outstanding Securities with the same effect as if such successor Person had been named as the Issuer herein; and thereafter, except in the case of a lease, the predecessor Person shall be released from all obligations and covenants under this Indenture and the Outstanding Securities, as applicable.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities of any series, the Issuer (when authorized by or pursuant to a Board Resolution) and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto for any of the following purposes:
(1) to evidence the succession of another Person to the Issuer and the assumption by any such successor of the covenants of the Issuer contained herein and in the Securities; or
(2) to add to the covenants of the Issuer for the benefit of the Holders of the Securities of all or any series (as shall be specified in such supplemental indenture) or to surrender any right or power herein conferred upon the Issuer with respect to the Securities of all or any series issued under this Indenture (as shall be specified in such supplemental indenture); or
(3) to add Events of Default with respect to all or any series of Securities (as shall be specified in such supplemental indenture); or
(4) to change or eliminate any restrictions on the payment of principal of or any premium or interest on or any Additional Amounts with respect to any Securities or to permit or facilitate the issuance of Securities in uncertificated or global form; provided that any such action shall not adversely affect the interests of any Holder or beneficial owner of any Security of any series then Outstanding; or
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(5) to amend or supplement any provision contained herein or in any supplemental indenture or in any Securities (which amendment or supplement may apply to one or more series of Securities or to one or more Securities within any series as specified in such supplemental indenture or indentures), provided that such amendment or supplement does not apply to any Outstanding Security issued prior to the date of such supplemental indenture and entitled to the benefits of, or subject to, such provision; or
(6) to secure the Securities or to secure or add guarantees for the benefit of the Securities of all or any series; or
(7) to establish the form or terms of Securities of any series as permitted by Sections 201 and 301, including, without limitation, any conversion and/or exchange provisions applicable to Securities which are convertible into and/or exchangeable for other securities or property and subordinated Securities, and any deletions from or additions or changes to this Indenture in connection therewith (provided that any such deletions, additions and changes shall not be applicable to the Securities then Outstanding); or
(8) 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 609; or
(9) to cure any mistake or ambiguity or to correct or supplement any provision herein or in the Securities which may be defective or which may be inconsistent with any other provision herein or in the Securities, or to make any other provisions with respect to matters or questions arising under this Indenture or the Securities, or to make any change necessary to comply with any requirement of the Commission in connection with this Indenture under the Trust Indenture Act, in each case which shall not adversely affect the interests of any Holder or beneficial owner of any Security of any series then Outstanding; or
(10) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the legal defeasance, covenant defeasance and/or satisfaction and discharge of the Securities of any series pursuant to Article 4, provided that any such action shall not adversely affect the interests of any Holder or beneficial owner of any Security of such series then Outstanding; or
(11) in the case of any series of Securities which are convertible into or exchangeable for Common Equity or other securities or property, to safeguard or provide for the conversion or exchange rights, as the case may be, of such Securities in the event of any reclassification or change of outstanding shares of Common Equity or any consolidation, amalgamation or merger of the Issuer with or into another Person or any sale, assignment, transfer, lease or other conveyance of all or substantially all of the assets of the Issuer to any other Person or other similar transactions, if expressly required by the terms of such series of Securities established pursuant to Section 301; or
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(12) to conform the terms of this Indenture or the Securities of any series to the description thereof contained in any prospectus, prospectus supplement, term sheet or other offering document relating to the offer and sale of such Securities, as evidenced by an Officers’ Certificate; or
(13) to make any change necessary to comply with the applicable rules or procedures of the Depository, if any, or any rules or regulations of any securities exchange or automated quotation system on which any of the Securities may be listed or traded, in each case which shall not adversely affect the interests of any Holder or beneficial owner of any Security of any series then Outstanding.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of a majority in aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture (voting as separate classes) by Act of said Holders delivered to the Issuer and the Trustee, the Issuer (when authorized by or pursuant to a Board Resolution) and the Trustee 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 the Securities of such series or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, that no such supplemental indenture, without the consent of the Holder of each Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or premium, if any, or any installment of interest, if any, on, or any Additional Amounts, if any, with respect to, any such Security;
(2) reduce the principal amount of, or any premium on, or the rate or rates (or change the calculation of the rate or rates) of interest on any such Security;
(3) reduce (or change the manner for calculating) the amount payable upon any redemption or repayment of any such Security, or change any date or dates on which, or any period or periods during which, any such Security is subject to optional or mandatory redemption or repayment or otherwise alter the provisions with respect to the redemption or repayment of any such Security in a manner that is adverse to the interests of the Holder or beneficial owners thereof;
(4) reduce any Additional Amounts payable with respect to any such Security or change the obligation of the Issuer to pay Additional Amounts pursuant to Section 1004 (except as contemplated by Section 801 and permitted by Section 901(1));
(5) reduce the amount of the principal of any Original Issue Discount Security that would be due and payable upon acceleration of the Maturity thereof pursuant to Section 502 or the amount thereof provable in bankruptcy pursuant to Section 504;
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(6) change the Place of Payment where, or the Currency in which, the principal of, any premium or interest on, or any Additional Amounts with respect to, any such Security is payable;
(7) impair the right to institute suit for the enforcement of any payment due with respect to such Security on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date or, in the case of repayment pursuant to Article 13 at the option of the Holder, on or after the date for repayment) in each case as such Stated Maturity, Redemption Date or date for repayment may, if applicable, be extended in accordance with the terms of such Security, or in the case of any Security which is convertible into and/or exchangeable for shares of Common Equity or other securities or property, impair the right to institute suit to enforce the right to convert and/or exchange such Security in accordance with its terms;
(8) [Reserved]
(9) reduce the percentage in aggregate principal amount of the Outstanding Securities of any series the consent of whose Holders is required for any such supplemental indenture or for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in Section 513 or 1006 of this Indenture;
(10) modify any of the provisions of this Section, Section 513 or Section 1006 except to increase the percentage in aggregate principal amount of the Outstanding Securities of such series the consent of whose Holders is required therefor or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby;
(11) reduce the requirements of Section 1504 for quorum or voting; or
(12) make any change that adversely affects the right, if any, to convert and/or exchange any such Security for shares of Common Equity or other securities or property in accordance with its terms.
Other than as set forth above, a supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which shall have 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.
Anything in this Indenture to the contrary notwithstanding, if more than one series of Securities is Outstanding, the Issuer shall be entitled to enter into a supplemental indenture under this Section 902 with respect to any one or more series of Outstanding Securities without entering into a supplemental indenture with respect to any other series of Outstanding Securities.
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It shall not be necessary for any Act of Holders of Securities 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.
As a condition to executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trust created by this Indenture, the Trustee shall receive, and (subject to Sections 315(a) through 315(d) of the Trust Indenture Act) shall be fully protected in conclusively relying upon, an Officers’ Certificate and an Opinion of Counsel of each of the Issuer to the effect that the execution of such supplemental indenture is authorized or permitted by this Indenture and that such supplemental indenture has been duly authorized, executed and delivered by the Issuer and is a valid, binding and enforceable obligation of each of the Issuer, subject to customary exceptions. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, 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 a Security theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 905. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation as to any matter provided for in such supplemental indenture. If the Issuer shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Issuer, to any such supplemental indenture may be prepared and executed by the Issuer, and authenticated and delivered by the Trustee, upon Issuer Order, in exchange for Outstanding Securities of such series.
Section 906. Conformity with Trust Indenture Act.
Unless the Issuer shall determine, based on an Opinion of Counsel delivered to the Trustee, that the same shall not be required, 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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ARTICLE 10
COVENANTS
Section 1001. Payment of Principal, Premium, Interest and Additional Amounts.
The Issuer covenants and agrees for the benefit of the Holders of the Securities of each series that it will duly and punctually pay the principal of, and any premium and interest on, and any Additional Amounts with respect to, the Securities of such series, whether payable in cash, shares of Common Equity or other securities or property, in accordance with the terms thereof, and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Issuer shall maintain in each Place of Payment for any series of Securities an Office or Agency where Securities of such series may be presented or surrendered for payment, where Securities of such series may be surrendered for registration of transfer or exchange, where Securities of such series that are convertible or exchangeable may be surrendered for conversion or exchange, and where notices and demands to or upon the Issuer in respect of the Securities of such series relating thereto and this Indenture may be served. The Issuer will give prompt written notice to the Trustee of the location, and any change in the location, of such Office or Agency. If at any time the Issuer shall fail to maintain any such required Office or Agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and each of the Issuer hereby appoints the Trustee as Registrar, Paying Agent, Transfer Agent and as its agent to receive all such presentations, surrenders, notices and demands.
The Issuer may also from time to time designate one or more other Offices or Agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an Office or Agency in each Place of Payment for Securities of any series for such purposes. The Issuer shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other Office or Agency.
Unless otherwise provided in or pursuant to this Indenture, the Issuer hereby designates The City of New York as a Place of Payment for each series of Securities, initially appoints the Corporate Trust Office of the Trustee in The City of New York as the Issuer’s Office or Agency in The City of New York for such purpose and initially appoints the Trustee as the Security Registrar for each series of Securities and, if the Securities of any series are convertible into or exchangeable for Common Equity or other securities or property, initially appoints the Trustee as conversion or exchange agent, as the case may be, for the Securities of such series. The Issuer may subsequently appoint a different Office or Agency in The City of New York and, as provided in Section 305, may remove and replace from time to time the Security Registrar.
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Section 1003. Money for Securities Payments to Be Held in Trust.
If the Issuer or any Affiliate of the Issuer shall at any time act as Paying Agent with respect to any series of Securities, it shall, on or before each due date of the principal of, or any premium or interest on, or any Additional Amounts with respect to, any of the Securities of such series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the Currency or Currencies in which the Securities of such series are payable sufficient to pay the principal, any premium, interest and Additional Amounts, as the case may be, so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and shall promptly notify the Trustee of its action or failure so to act.
Whenever there shall be one or more Paying Agents for any series of Securities, it shall, on or prior to each due date of the principal of, or any premium or interest on, or any Additional Amounts with respect to, any Securities of such series, deposit with any Paying Agent a sum (in the Currency or Currencies described in the preceding paragraph) sufficient to pay the principal, premium, interest and Additional Amounts, as the case may be, 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) the Issuer will promptly notify the Trustee of its action or failure so to act.
The Issuer shall cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of, or any premium or interest on, or any Additional Amounts with respect to, Securities of such 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 provided in or pursuant to this Indenture;
(2) give the Trustee written notice of any default by the Issuer (or any other obligor upon the Securities of such series) in the making of any payment of principal of, or any premium or interest on, or any Additional Amounts with respect to, the Securities of such series; and
(3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
To the extent that the terms of any Securities established pursuant to Section 301 provide that any principal of, or premium or interest, if any, on, or any Additional Amounts with respect to, any such Securities is or may be payable in shares of Common Equity or other securities or property, then the provisions of this Section 1003 shall apply, mutatis mutandis, to such shares of Common Equity or other securities or property.
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The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Issuer or such Paying Agent, such sums to be held by the Trustee upon the same terms as those upon which such sums were held by the Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.
Except as otherwise provided herein or pursuant hereto, any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of, or any premium or interest on, or any Additional Amounts with respect to, any Security of any series and remaining unclaimed for two years after such principal, premium, interest or Additional Amounts shall have become due and payable shall be paid to the Issuer on an Issuer Request, or (if then held by the Issuer) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Issuer, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer solely in its capacity as trustee thereof, shall thereupon cease.
Section 1004. Additional Amounts.
If any Securities of a series provide for the payment of Additional Amounts by the Issuer, the Issuer agrees to pay to the Holder of any such Securities Additional Amounts as provided in or pursuant to this Indenture or such Securities. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of, any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided by the terms of such series established hereby or pursuant hereto, to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the Securities of any series, if the Securities of a series provide for the payment of Additional Amounts by the Issuer at least 10 days prior to the first Interest Payment Date with respect to such series of Securities (or if the Securities of such series shall not bear interest prior to Maturity, the first day on which a payment of principal is made), and at least 10 days prior to each date of payment of principal, premium, if any, or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Issuer shall furnish to the Trustee and the Paying Agent or Paying Agents, if other than the Trustee, an Officers’ Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and premium, if any, or interest, if any, on the Securities of such series shall be made to Holders of Securities of such series without withholding or deduction for or on account of any tax, assessment or other governmental charge described in the Securities of such series or pursuant to Section 301 with respect to the Securities of such series. If any such withholding or deduction shall be required, then such Officers’ Certificate shall specify by country the amount, if any, required to be withheld on or deducted from such payments to such Holders of Securities, and the Issuer agrees to pay to the Trustee or such Paying Agent the Additional Amounts required by the terms of such Securities. Each of the Issuer covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss, damage, liability, cost or expense, including attorneys’ fees, costs and
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expenses, reasonably incurred without negligence or willful misconduct on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section. Nothing in this Section 1004 or elsewhere in this Indenture shall limit the obligation of the Issuer to pay Additional Amounts with respect to the Securities of any series pursuant to the terms, if any, established pursuant to Section 301 with respect to the Securities of such series. The Trustee shall not at any time be under any duty or responsibility to any Holder to determine the Additional Amounts owed, or with respect to the nature, extent, or calculation of the Additional Amounts owed, or with respect to the method employed in such calculation of the Additional Amounts.
Section 1005. Corporate Existence.
Subject to Article 8, the Issuer shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) its limited partnership, limited liability company or corporate existence, as applicable, and (ii) its rights (charter and statutory), licenses and franchises if the failure to maintain such rights, licenses or franchises could reasonably be expected to have a material adverse effect on the business of the Issuer; provided, however, that the Issuer shall not be required to preserve any such right, license or franchise if the Board of Directors of the Issuer determines that the preservation thereof is no longer desirable in the conduct of the business of the Issuer.
Section 1006. Waiver of Certain Covenants.
The Issuer may omit in any particular instance to comply with any term, provision or condition set forth in any covenants applicable to the Securities of such series (i) if expressly so provided pursuant to clause (16) of Section 301 and (ii) if, before any non-compliance, the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series, by Act of such Holders, either shall waive such compliance in such instance or generally shall have waived compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Issuer and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
Section 1007. Annual Statement as to Compliance.
Each of the Issuer shall deliver to the Trustee, within 120 days after the end of each fiscal year, a written statement (which need not be contained in or accompanied by an Officers’ Certificate) signed by the principal executive officer, the principal financial officer or the principal accounting officer of the Issuer stating whether or not, to their knowledge, (i) there is a default by the Issuer in the performance and observance of any of the terms, provisions and conditions of this Indenture and the Outstanding Securities (without regard to notice requirements or periods of grace) or (ii) there is a default which, with notice or the lapse of time or both, would become an Event of Default or an Event of Default has occurred or is continuing, and specifying all such defaults and Events of Default and the nature and status thereof of which he or she may have knowledge; provided that any default that results solely from the taking of an action that would have been permitted but for the continuation of a previous default will be deemed to be cured if such previous default is cured prior to becoming an Event of Default.
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Section 1008. Notice of Event of Default.
Within 30 days after becoming aware of the occurrence of any Event of Default, or any default that with notice or the lapse of time, or both, would be an Event of Default, the Issuer shall notify the Trustee in writing setting forth the details of such Event of Default or default, as the case may be, its status and the action that the Issuer is taking or proposes to take, if any, in respect thereof.
Section 1009. Calculation of Original Issue Discount.
So long as there is any Outstanding Original Issue Discount Security, the Issuer 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 Original Issue Discount 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.
ARTICLE 11
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Redemption of Securities of any series at the option of the Issuer as permitted or required by the terms of such Securities shall be made in accordance with the terms of such Securities and (except as otherwise provided herein or pursuant hereto) this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Issuer to redeem any Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Issuer of all of the Outstanding Securities of any series, the Issuer shall, not less than 30 days and not more than 60 days prior to the Redemption Date fixed by the Issuer, notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed and, in the event that the Issuer shall determine that the Securities of any series to be redeemed shall be selected from Securities of such series having the same issue date, interest rate or interest rate formula, Stated Maturity and other terms (the “Equivalent Terms”), the Issuer shall notify the Trustee of such Equivalent Terms.
If less than all of the Securities of any series are to be redeemed or if less than all of the Securities of any series with Equivalent Terms are to be redeemed, the Issuer shall, at least five days prior to giving notice of redemption to the Holders (unless a shorter notice shall be satisfactory to the Trustee and agreed upon in writing by the Trustee), notify the Trustee of such Redemption Date, the principal amount of Securities of such series to be redeemed and, if applicable, the Equivalent Terms.
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In the case of any redemption of Securities (i) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture or (ii) pursuant to an election of the Issuer which is subject to a condition specified in the terms of such Securities or elsewhere in this Indenture, the Issuer shall furnish to the Trustee an Officers’ Certificate and Opinion of Counsel evidencing compliance with such restriction or condition.
Section 1103. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series are to be redeemed or if less than all of the Securities of any series with Equivalent Terms are to be redeemed, the particular Securities to be redeemed shall be selected not less than 30 days and not more than 60 days prior to the Redemption Date by the Trustee from the Outstanding Securities of such series or from the Outstanding Securities of such series with Equivalent Terms, as the case may be, not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and in accordance with the Depository’s procedures, and which may provide for the selection for redemption of portions of the principal amount of Securities of such series; provided, however, that no such partial redemption shall reduce the portion of the principal amount of a Security of such series not redeemed to less than the minimum denomination for a Security of such series established herein or pursuant hereto.
The Trustee shall promptly notify the Issuer and the Security Registrar (if other than itself) in writing of the Securities 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 Securities redeemed or to be redeemed only in part, to the portion of the principal of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the Securities of any series, if any Security selected for partial redemption is converted or exchanged for Common Equity or other securities or property in part before termination of the conversion or exchange right with respect to the portion of the Security so selected, the converted or exchanged portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption. Securities which have been converted or exchanged during a selection of Securities to be redeemed shall be treated by the Trustee as Outstanding for the purpose of such selection.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106, not less than 10 nor more than 60 days prior to the Redemption Date, unless a shorter period is specified in the Securities to be redeemed, to the Holders of Securities to be redeemed. Failure to give notice by mailing in the manner herein provided to the Holder of any Securities designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other Securities or portions thereof.
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Any notice that is mailed to the Holder of any Securities in the manner herein provided shall be conclusively presumed to have been duly given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, including, without limitation, any Additional Amounts pertaining thereto;
(3) if less than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amount) of the particular Security or Securities to be redeemed;
(4) that, in case any Security is to be redeemed in part only, on and after the Redemption Date, upon surrender of such Security, the Holder of such Security 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 shall become due and payable upon each such Security or portion thereof to be redeemed;
(6) the place or places where such Securities, 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) in the case of Securities of any series that are convertible or exchangeable into shares of Common Equity or other securities or property, the then current conversion or exchange price or rate, the date or dates on which the right to convert or exchange the principal of the Securities of such series to be redeemed will commence or terminate, as applicable, and the place or places where and the Persons to whom such Securities may be surrendered for conversion or exchange;
(9) the CUSIP number, Common Code and/or ISIN identification numbers of such Securities, if any (or any other numbers used by a Depository to identify such Securities); and
(10) if the Redemption Price (or any portion thereof) shall be payable, at the option of the Issuer, for a form of consideration not solely in cash, a statement as to whether the Issuer has exercised such option and, if so, details on the form of consideration so selected in accordance with such option with respect to such amounts.
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Notice of redemption of Securities to be redeemed at the election of the Issuer shall be given by the Issuer or, at the Issuer’s request with 15 days, prior written notice, by the Trustee in the name and at the expense of the Issuer.
Section 1105. Deposit of Redemption Price.
At or prior to 10:00 am (local time in New York City) on any Redemption Date, the Issuer shall deposit, with respect to the Securities of any series called for redemption pursuant to Section 1104, with the Trustee or with a Paying Agent (or, if the Issuer or any Affiliate of the Issuer acting as Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money in the applicable Currency sufficient to pay the Redemption Price with respect to, all such Securities or portions thereof which are to be redeemed on that date; provided, however, that except as otherwise specified in or pursuant to this Indenture or the Securities of such series, installments of interest on 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 Regular Record Dates therefor according to their terms and the provisions of Section 307.
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 (unless, in the case of the interest component of the Redemption Price, otherwise provided with respect to the Securities of such series pursuant to Section 301)and, unless the Issuer shall default in the payment of the Redemption Price then due and payable, such Securities shall cease to bear interest and, except to the extent provided below, shall be void. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Issuer at the Redemption Price, including, unless otherwise provided in or pursuant to this Indenture, unpaid interest accrued to, but excluding, the Redemption Date; provided, however, that except as otherwise specified in or pursuant to this Indenture or the Securities of such series, installments of interest on 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 Regular Record Dates therefor according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid, or funds set aside for payment, on the Redemption Date, the principal and any premium, until paid, shall bear interest from the Redemption Date at the rate prescribed therefor in the Security or, if no rate is prescribed therefor in the Security, at the rate of interest, if any, borne by such Security.
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Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at any Office or Agency for such Security (with, if the Issuer or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the Holder thereof or their attorney duly authorized in writing) and the Issuer shall execute and the Trustee shall authenticate and deliver, upon Issuer Order, to the Holder of such Security without service charge, a new Security or Securities of the same series, containing identical terms and provisions, of any authorized denomination as requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. If a Security in global form is so surrendered, the Issuer shall execute, and the Trustee shall authenticate and deliver, upon Issuer Order, to the Depository for such Security in global form as shall be specified in the Issuer Order with respect thereto to the Trustee, without service charge, a new Security in global form in a denomination equal to and in exchange for the unredeemed portion of the principal of the Security in global form so surrendered.
ARTICLE 12
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise permitted or required in or pursuant to this Indenture or any Security of such series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any 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 such series is herein referred to as an “optional sinking fund payment.” If provided for by the terms of Securities of any 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 series as provided for by the terms of Securities of such series and this Indenture.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Issuer may, in satisfaction of all or any part of any sinking fund payment with respect to the Securities of any series to be made pursuant to the terms of such Securities (1) deliver Outstanding Securities of such series (other than any of such Securities previously called for redemption or any of such Securities in respect of which cash shall have been released to the Issuer), and (2) apply as a credit Securities of such series which have been redeemed either at the election of the Issuer pursuant to the terms of such series of Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities; provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities of any series in lieu of cash payments pursuant to this Section 1202, the principal amount of Securities of such series to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such series for redemption, except upon Issuer Request, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment; provided, however, that the Trustee or such Paying Agent shall, upon Issuer Request, from time to time, pay over and deliver to the Issuer any cash payment so being held by the Trustee or such Paying Agent upon delivery by the Issuer to the Trustee of Securities of that series purchased by the Issuer having an unpaid principal amount equal to the cash payment requested to be released to the Issuer.
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Section 1203. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date for any series of Securities, the Issuer shall deliver to the Trustee 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 and the portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that series pursuant to Section 1202, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and will also deliver to the Trustee any Securities to be so credited and not theretofore delivered. If such Officers’ Certificate shall specify an optional amount to be added in cash to the next ensuing mandatory sinking fund payment, the Issuer shall thereupon be obligated to pay the amount therein specified. Not less than 60 days before each such sinking fund payment date the 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 Issuer 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
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.
Securities of any series which are repayable at the option of the Holders thereof before their Stated Maturity shall be repaid in accordance with the terms of the Securities of such series. The repayment of any principal amount of Securities pursuant to such option of the Holder to require repayment of Securities before their Stated Maturity, for purposes of Section 309, shall not operate as a payment, redemption or satisfaction of the indebtedness represented by such Securities unless and until the Issuer, at its option, shall deliver or surrender the same to the Trustee with a directive that such Securities be cancelled. If specified with respect to the Securities of a series as contemplated by Section 301, in connection with any repayment of Securities, the Issuer may arrange for the purchase of any Securities by an agreement with one or more investment bankers or other purchasers to purchase such Securities by paying to the Holders of such Securities on or before the applicable repayment date an amount not less than the repayment price payable by the Issuer on repayment of such Securities, and the obligation of the Issuer to pay the repayment price of such Securities shall be satisfied and discharged to the extent such payment is so paid by such purchasers.
Unless otherwise expressly stated in this Indenture or pursuant to Section 301 with respect to the Securities of any series or unless the context otherwise requires, all references in this Indenture to the repayment of Securities at the option of the Holders thereof (and all references of like import) shall be deemed to include a reference to the repurchase of Securities at the option of the Holders thereof.
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ARTICLE 14
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the determination of any of the rights of, Holders of Securities of any series in which not all of such Securities are denominated in the same Currency or (ii) any distribution to Holders of Securities of any series in which not all of such Securities are denominated in the same Currency, in the absence of any provision to the contrary in or pursuant to this Indenture or the Securities of such series and in accordance with the Depository’s procedures, any amount in respect of any Security denominated in a Currency other than Dollars shall be treated for any such action, determination or distribution as that amount of Dollars that could be obtained for such amount on such reasonable basis of exchange and as of the record date with respect to Securities of such series (if any) for such action, determination or distribution (or, if there shall be no applicable record date, such other date reasonably proximate to the date of such distribution) as the Issuer may specify in a written notice to the Trustee or, in the absence of such written notice, as the Trustee may determine. Monies of Different Currencies to be Segregated.
The Trustee shall segregate monies, funds and accounts held by the Trustee hereunder in one currency from any monies, funds or accounts in any other currencies, notwithstanding any provision herein which would otherwise permit the Trustee to commingle such accounts.
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any 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 Act provided by this Indenture to be made, given or taken by Holders of Securities of such series.
Section 1502. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 1501, to be held at such time and at such place in The City of New York. Notice of every meeting of Holders of Securities of any 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 21 nor more than 180 days prior to the date fixed for the meeting.
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(2) In case at any time the Issuer (by or pursuant to a Board Resolution) or the Holders of at least 10% in aggregate principal amount of the Outstanding Securities of any series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in Section 1501, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have provided proper notice of the meeting or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Issuer 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 City of New York, and may call such meeting for such purposes by giving notice thereof as provided in clause (1) of this Section.
Section 1503. 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 and its counsel and any representatives of the Issuer and their respective counsel.
Section 1504. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting or duly reconvened meeting of Holders of Securities of such series; provided, however, that if any action is to be taken at such meeting with respect to a consent or waiver which this Indenture expressly provides may be given by the Holders of a supermajority in aggregate principal amount of the Outstanding Securities of a series, the Persons entitled to vote the specified supermajority in aggregate principal amount of the Outstanding Securities of such series shall constitute a quorum. In the absence of a quorum within 30 minutes after 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. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 1502(1), 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 the percentage, as provided above, of the aggregate principal amount of the Outstanding Securities of such series which shall constitute a quorum.
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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 only by the affirmative vote of the Holders of a majority in aggregate 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 Act which this Indenture expressly provides may be made, given or taken by the Holders of a supermajority in aggregate principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly convened and at which a quorum is present as aforesaid only by the affirmative vote of the Holders of the specified supermajority in aggregate principal amount of the Outstanding Securities of that series; and provided, further, 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 Act 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 aggregate 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 lesser specified percentage in aggregate principal amount of the Outstanding Securities of such 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, whether or not such Holders were present or represented at the meeting.
Section 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings.
(1) Notwithstanding any other provisions of this Indenture, the Trustee 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. 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.
(2) The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Issuer or the Holders of Securities as provided in Section 1502, in which case the Issuer 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 aggregate principal amount of the Outstanding Securities of such series represented at the meeting.
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(3) 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 them; 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. If the Securities of such series are issuable in minimum denominations of less than $1,000, then a Holder of such a Security in a principal amount of less than $1,000 shall be entitled to a fraction of one vote which is equal to the fraction that the principal amount of such Security bears to $1,000. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly called pursuant to Section 1502 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in aggregate 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 1506. 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 triplicate, 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 1502 and, if applicable, Section 1504. 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 each of the Issuer, and another to the Trustee to be preserved by the 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.
[Signatures follow on next page]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
| ARDENT HEALTH, INC. as Issuer | ||
| By: |
| |
| Name: | ||
| Title: | ||
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
| [_______________], as Trustee, Registrar, Paying Agent and Transfer Agent | ||
| By: |
| |
| Name: | ||
| Title: | ||
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Exhibit 5.1
|
SIDLEY AUSTIN LLP 787 SEVENTH AVENUE +1 212 839 5300 +1 212 839 5599 FAX |
August 21, 2025
Ardent Health, Inc.
340 Seven Springs Way, Suite 100
Brentwood, Tennessee 37027
| Re: | Registration Statement on Form S-3 |
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-3 (the “Registration Statement”) being filed by Ardent Health, Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration of (A) 120,453,642 shares of the Company’s common stock, $0.01 par value per share (the “Common Stock”), that may be offered and sold from time to time by the selling stockholders named in the Registration Statement, and (B) up to an aggregate offering price of $500 million of (i) shares of Common Stock (the “Shares”), (ii) shares of the Company’s preferred stock, par value $0.01 per share (the “Preferred Stock”), and/or (iii) debt securities of the Company in one or more series (the “Debt Securities”) that may be offered and sold from time to time by the Company.
The Shares, the Preferred Stock and the Debt Securities are collectively referred to herein as the “Securities.”
Unless otherwise specified in the applicable prospectus supplement: (i) the Preferred Stock will be issued in one or more series and the relative powers, designations, preferences, privileges, rights, qualifications, limitations or restrictions of such series of Preferred Stock will be set forth in one or more certificates of designations (each, a “Certificate of Designations”); and (ii) the Debt Securities will be issued under one or more indentures (each, an “Indenture”) to be entered into between the Company and a trustee (the “Trustee”). Each Indenture (to the extent not already filed as an exhibit to the Registration Statement) and Certificate of Designations, as applicable, will be in a form to be filed as an exhibit to a post-effective amendment to the Registration Statement or a document filed under the Securities Exchange Act of 1934, as amended, and incorporated by reference as an exhibit to the Registration Statement.
This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
We have examined the Registration Statement, the exhibits thereto, the certificate of incorporation of the Company, as amended to the date hereof (the “Charter”), the bylaws of the Company, as amended to the date hereof (the “Bylaws”), and the resolutions (the “Resolutions”) adopted by the board of directors of the Company (the “Board”) relating to the Registration Statement. We have also examined originals, or copies of originals certified to our satisfaction, of such agreements, documents, certificates and statements of the Company and others, and have examined such questions of law, as we have considered relevant and necessary as a basis for this opinion letter. We have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the legal capacity of all persons and the conformity with the original documents of any copies thereof submitted to us for examination. As to facts relevant to the opinions expressed herein, we have relied without independent investigation or verification upon, and assumed the accuracy and completeness of, certificates, letters and oral and written statements and representations of public officials and officers and other representatives of the Company.
Based on and subject to the foregoing and the other limitations, qualifications and assumptions set forth herein, we are of the opinion that:
Sidley Austin (NY) LLP is a Delaware limited liability partnership doing business as Sidley Austin LLP and practicing in affiliation with other Sidley Austin partnerships.
Ardent Health, Inc.
August 21, 2025
Page 2
1. With respect to an offering of the Shares covered by the Registration Statement, such Shares will be validly issued, fully paid and nonassessable when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act; (ii) a prospectus supplement with respect to the sale of such Shares shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) the Board or a duly authorized committee thereof shall have duly adopted final resolutions in conformity with the Charter, the Bylaws and the Resolutions authorizing the issuance and sale of such Shares; and (iv) certificates representing such Shares shall have been duly executed, countersigned and registered and duly delivered in accordance with the applicable definitive purchase, underwriting or similar agreement to the purchasers thereof upon payment of the agreed consideration therefor in an amount not less than the aggregate par value thereof or, if any such Shares are to be issued in uncertificated form, the Company’s books shall reflect the issuance of such Shares in accordance with the applicable definitive purchase, underwriting or similar agreement to the purchasers thereof upon payment of the agreed consideration therefor in an amount not less than the aggregate par value thereof.
2. The issuance and sale of each series of Preferred Stock covered by the Registration Statement will be duly authorized, and each share of such series of Preferred Stock will be validly issued, fully paid and nonassessable, when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act; (ii) a prospectus supplement with respect to the sale of such series of Preferred Stock shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) the Board or a duly authorized committee thereof shall have duly adopted final resolutions in conformity with the Charter, the Bylaws and the Resolutions establishing the designations, preferences, rights, qualifications, limitations or restrictions of such series of Preferred Stock and authorizing the issuance and sale of such series of Preferred Stock; (iv) the Company shall have filed with the Secretary of State of the State of Delaware a Certificate of Designations with respect to such series of Preferred Stock in accordance with the General Corporation Law of the State of Delaware (the “DGCL”) and in conformity with the Charter and such final resolutions; and (v) certificates representing such series of Preferred Stock shall have been duly executed, countersigned and registered and duly delivered in accordance with the applicable definitive purchase, underwriting or similar agreement to the purchasers thereof against payment of the agreed consideration therefor in an amount not less than the aggregate par value thereof or, if any shares of such series of Preferred Stock are to be issued in uncertificated form, the Company’s books shall reflect the issuance of such shares in accordance with the applicable definitive purchase, underwriting or similar agreement to the purchasers thereof upon payment of the agreed consideration therefor in an amount not less than the aggregate par value thereof.
3. The Debt Securities of each series covered by the Registration Statement will constitute valid and binding obligations of the Company when: (i) the Registration Statement, as finally amended (including any necessary post-effective amendments), shall have become effective under the Securities Act and the Indenture under which such series of Debt Securities is being issued (including any necessary supplemental indenture) shall have been qualified under the Trust Indenture Act of 1939, as amended; (ii) a prospectus supplement with respect to such series of Debt Securities shall have been filed with the SEC in compliance with the Securities Act and the rules and regulations thereunder; (iii) an Indenture, substantially in the form filed as an exhibit to the Registration Statement, shall have been duly authorized, executed and delivered by the Company and the Trustee; (iv) all necessary corporate action shall have been taken by the Company to authorize the form, terms, execution, delivery, performance, issuance and sale of such series of Debt Securities as contemplated by the Registration Statement, the prospectus supplement relating to such series of Debt Securities and such Indenture and to authorize the execution, delivery and performance of a supplemental indenture or officers’ certificate establishing the form and terms of such series of Debt Securities as contemplated by the Indenture; (v) a supplemental indenture or officers’ certificate establishing the form and terms of such series of Debt Securities shall have been duly executed and delivered by the Company and the Trustee (in the case of such a supplemental indenture) or by duly authorized officers of the
Sidley Austin (NY) LLP is a Delaware limited liability partnership doing business as Sidley Austin LLP and practicing in affiliation with other Sidley Austin partnerships.
Ardent Health, Inc.
August 21, 2025
Page 3
Company (in the case of such an officers’ certificate), in each case in accordance with the provisions of the Charter, the Bylaws, final resolutions of the Board or a duly authorized committee thereof, and the Indenture; and (vi) the certificates evidencing the Debt Securities of such series shall have been duly executed and delivered by the Company, authenticated by the Trustee and issued, all in accordance with the Charter, the Bylaws, the Resolutions, final resolutions of the Board or a duly authorized committee thereof, the Indenture and the supplemental indenture or officers’ certificate, as the case may be, establishing the form and terms of the Debt Securities of such series, and shall have been duly delivered in accordance with the applicable definitive purchase, underwriting or similar agreement to the purchasers thereof against payment of the agreed consideration therefor.
Our opinions are subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer and other similar laws relating to or affecting creditors’ rights generally and to general equitable principles (regardless of whether considered in a proceeding in equity or at law), including concepts of commercial reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief. Our opinions are also subject to (i) provisions of law which may require that a judgment for money damages rendered by a court in the United States of America be expressed only in United States dollars, (ii) requirements that a claim with respect to any Debt Securities or other obligations that are denominated or payable other than in United States dollars (or a judgment denominated or payable other than in United States dollars in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law and (iii) governmental authority to limit, delay or prohibit the making of payments outside of the United States of America or in a foreign currency.
For the purposes of this opinion letter, we have assumed that, at the time of the issuance, sale and delivery of any of the Securities:
| (i) | the applicable Securities being offered 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 Company of the Indenture, and the issuance, sale and delivery of the applicable Securities will not (A) contravene or violate the Charter, the Bylaws, the Resolutions or any other applicable final resolutions adopted by the Board or any duly authorized committee thereof, (B) violate any law, rule or regulation applicable to the Company, (C) result in a default under or breach of any agreement or instrument binding upon the Company or any order, judgment or decree of any court or governmental authority applicable to the Company, or (D) 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) | with respect to any issuance of Shares and shares of Preferred Stock in uncertificated form, the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the DGCL; |
| (iv) | the authorization thereof by the Company will not have been modified or rescinded, and there will not have occurred any change in law affecting the validity, legally binding character or enforceability thereof; and |
| (v) | the Charter, the Bylaws and the Resolutions, each as currently in effect, will not have been modified or amended and will be in full force and effect. |
Sidley Austin (NY) LLP is a Delaware limited liability partnership doing business as Sidley Austin LLP and practicing in affiliation with other Sidley Austin partnerships.
Ardent Health, Inc.
August 21, 2025
Page 4
We have further assumed that any Indenture, supplemental indenture to the Indenture and Debt Securities will be governed by the laws of the State of New York.
With respect to each instrument or agreement referred to in or otherwise relevant to the opinions set forth herein (each, an “Instrument”), we have assumed, to the extent relevant to the opinions set forth herein, that (i) each party to such Instrument (if not a natural person) was duly organized or formed, as the case may be, and was at all relevant times and is validly existing and in good standing under the laws of its jurisdiction of organization or formation, as the case may be, and had at all relevant times and has full right, power and authority to execute, deliver and perform its obligations under such Instrument; (ii) such Instrument has been duly authorized, executed and delivered by each party thereto; and (iii) such Instrument was at all relevant times and is a valid, binding and enforceable agreement or obligation, as the case may be, of, each party thereto; provided, that we make no assumption in clause (iii) insofar as such assumption relates to the Company and is expressly covered by our opinions set forth herein.
This opinion letter is limited to the DGCL and the laws of the State of New York (excluding the securities laws of the State of New York). We express no opinion as to the laws, rules or regulations of any other jurisdiction, including, without limitation, the federal laws of the United States of America or any state securities or blue sky laws.
We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to all references to our Firm included in or made a part of the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
| Very truly yours, |
| /s/ Sidley Austin LLP |
Sidley Austin (NY) LLP is a Delaware limited liability partnership doing business as Sidley Austin LLP and practicing in affiliation with other Sidley Austin partnerships.
Exhibit 5.2
August 21, 2025
Ardent Health, Inc.
340 Seven Springs Way, Suite 100
Brentwood, Tennessee 37027
| Re: | Registration Statement on Form S-3 |
Ladies and Gentlemen:
I am the Executive Vice President and General Counsel of Ardent Health, Inc., a Delaware corporation (the “Company”). I refer to the Registration Statement on Form S-3 (the “Registration Statement”) being filed by the Company on the date hereof with the Securities and Exchange Commission (the “SEC”). The Registration Statement relates to the registration under the Securities Act of 1933, as amended (the “Securities Act”), of (A) 120,453,642 shares (the “Selling Stockholder Shares”) of the Company’s common stock, $0.01 par value per share (the “Common Stock”), that may be offered and sold from time to time by the selling stockholders named in the Registration Statement, and (B) up to an aggregate offering price of $500 million of (i) shares of Common Stock, (ii) shares of the Company’s preferred stock, par value $0.01 per share, and/or (iii) debt securities of the Company that may be offered and sold from time to time by the Company.
This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
I have examined the Registration Statement, the exhibits thereto, the certificate of incorporation of the Company, as amended to the date hereof, the bylaws of the Company, as amended to the date hereof, and the resolutions adopted by the board of directors of the Company relating to the Registration Statement and the issuance by the Company of the Selling Stockholder Shares. I have also examined originals, or copies of originals certified to my satisfaction, of such agreements, documents, certificates and statements of the Company and other corporate documents and instruments, and have examined such questions of law, as I have considered relevant and necessary as a basis for this opinion letter. I have assumed the authenticity of all documents submitted as originals, the genuineness of all signatures, the legal capacity of all persons and the conformity with the original documents of any copies thereof submitted for examination. As to facts relevant to the opinions expressed herein, I have relied without independent investigation or verification upon, and assumed the accuracy and completeness of certificates, letters and oral and written statements and representations of public officials and officers and other representatives of the Company.
Based on and subject to the foregoing and the other limitations, qualifications and assumptions set forth herein, I am of the opinion that the Selling Stockholder Shares are validly issued, fully paid and non-assessable.
Ardent Health, Inc.
August 21, 2025
Page 2
I am admitted to practice only in the States of Tennessee and Georgia. This opinion letter is limited to the General Corporation Law of the State of Delaware. I express no opinion as to the laws, rules or regulations of any other jurisdiction, including, without limitation, the federal laws of the United States of America or any state securities or blue sky laws.
I hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the use of my name under the caption “Legal Matters” in the Registration Statement. In giving such consent, I do not thereby concede that I am within the category of persons whose consent is required under Section 7 of the Securities Act.
| Very truly yours, |
| /s/ Stephen C. Petrovich
|
| Stephen C. Petrovich Executive Vice President and General Counsel |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in this Registration Statement (Form S-3) and related Prospectus of Ardent Health, Inc. for the registration of shares of its common stock, preferred stock and debt securities, and to the incorporation by reference therein of our report dated February 27, 2025, with respect to the consolidated financial statements of Ardent Health, Inc. (formerly Ardent Health Partners, Inc.), included in its Annual Report for the year ended December 31, 2024, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Nashville, Tennessee
August 21, 2025