EXHIBIT 4.5
[Face of Note]
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CUSIP/CINS ____________
8-3/4% Senior Subordinated Note due 2014
No. ___ $____________
IASIS Healthcare LLC
IASIS Capital Corporation
promises to pay to ____________________ or registered assigns,
the principal sum of ___________________________________________ DOLLARS on
June 15, 2014.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
Dated: _______________, 200_
IASIS Healthcare LLC
By:
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Name:
Title:
IASIS Capital Corporation
By:
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Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Trustee
By:
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Authorized Signatory
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[Back of Note]
8-3/4% Senior Subordinated Notes due 2014
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.01 AND SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE
MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
ISSUERS.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (00 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Capitalized terms used herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
(1) INTEREST. IASIS Healthcare LLC, a Delaware limited
liability company (the "Company"), and IASIS Capital Corporation, a
Delaware corporation ("IASIS Capital" and together with the Company,
the "Issuers"), promise to pay interest on the principal amount of this
Note at 8-3/4% per annum from ____________, 20__ until maturity. The
Issuers shall pay interest semi-annually in arrears on June 15 and
December 15 of each year, or if any such day is not a Business Day, on
the next succeeding Business Day (each, an "Interest Payment Date").
Interest on the Notes shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date
of issuance; provided that if there is no existing Default in the
payment of interest, and if this Note is authenticated between a record
date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding
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Interest Payment Date; provided further that the first Interest Payment
Date shall be ____________, 20__. The Issuers shall pay interest
(including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to
time on demand at a rate that is 1% per annum in excess of the rate
then in effect; it shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace periods) from time to
time on demand at the same rate to the extent lawful. Interest shall be
computed on the basis of a 360-day year of twelve 30-day months.
(2) METHOD OF PAYMENT. The Issuers shall pay interest on the
Notes (except defaulted interest) to the Persons who are registered
Holders at the close of business on the June 1 or December 1 next
preceding the Interest Payment Date, even if such Notes are canceled
after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. The Notes shall be payable as to principal,
interest and premium at the office or agency of the Paying Agent within
the City and State of New York, or, at the option of the Issuers,
payment of interest may be made by check mailed to the Holders at their
addresses set forth in the register of Holders; provided that payment
by wire transfer of immediately available funds shall be required with
respect to principal of and interest and premium, if any, on, all
Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Issuers or the Paying Agent.
Such payment shall be in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public
and private debts.
(3) PAYING AGENT AND REGISTRAR. Initially, The Bank of New
York Trust Company, N.A., the Trustee under the Indenture, shall act as
Paying Agent and Registrar. The Issuers may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.
(4) INDENTURE. The Issuers issued the Notes under an Indenture
dated as of June 22, 2004 (the "Indenture"), among the Issuers, the
Guarantors and the Trustee. The terms of the Notes include those stated
in the Indenture and those made part of the Indenture by reference to
the TIA (15 U.S. Code xx.xx. 77aaa-77bbbb). The Notes are subject to
all such terms, and Holders are referred to the Indenture and such Act
for a statement of such terms. To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions
of the Indenture shall govern and be controlling. The Notes are general
unsecured obligations of the Issuers. Subject to the conditions set
forth in the Indenture, the Issuers may issue Additional Notes.
(5) OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this Paragraph
5, the Issuers shall not have the option to redeem the Notes prior to
June 15, 2009. On or after June 15, 2009, the Issuers may redeem all or
part of the Notes upon not less than 30 nor more than 60 days' notice,
at the redemption prices (expressed as percentages of principal amount)
set forth below plus accrued and unpaid interest thereon to the
applicable redemption date, if redeemed during the twelve-month period
beginning on June 15 of the years
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indicated below, subject to the rights of Holders on the relevant
record date to receive interest on the relevant interest payment date:
Year Percentage
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2009.................................................. 104.375%
2010.................................................. 102.917%
2011.................................................. 101.458%
2012 and thereafter................................... 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, at any time prior to June 15, 2007, the Issuers may, on
any one or more occasions, redeem up to 35% of the aggregate principal
amount of Notes issued under the Indenture at a redemption price of
108.750% of the principal amount thereof, plus accrued and unpaid
interest to the redemption date with the net cash proceeds of one or
more Equity Offerings by the Issuers or a contribution to the common
equity capital of the Company from the net proceeds of one or more
Equity Offerings by a direct or indirect parent of the Company (in each
case, other than Excluded Contributions and the net proceeds of a sale
of Designated Preferred Stock); provided that (i) at least 65% in
aggregate principal amount of the Notes originally issued under the
Indenture (excluding Notes held by the Company and its Subsidiaries)
remains outstanding immediately after the occurrence of such
redemption; and (ii) the redemption occurs within 90 days of the date
of the closing of such Equity Offering or equity contribution.
(6) MANDATORY REDEMPTION. The Issuers shall not be required to
make mandatory redemption payments with respect to the Notes.
(7) REPURCHASE AT THE OPTION OF HOLDER.
(a) If there is a Change of Control, each Holder shall have
the right to require the Issuers to make an offer (a "Change of Control
Offer") to repurchase all or any part (equal to $1,000 or an integral
multiple of $1,000) of that Xxxxxx's Notes at a purchase price equal to
101% of the aggregate principal amount thereof plus accrued and unpaid
interest on the Notes repurchased, if any, to the date of purchase,
subject to the rights of the Holders on the relevant record date to
receive interest due on the relevant Interest Payment Date (the "Change
of Control Payment"). Within 30 days following any Change of Control,
the Issuers shall mail a notice to each Holder setting forth the
procedures governing the Change of Control Offer as required by the
Indenture.
(b) If the Company or a Restricted Subsidiary of the Company
consummates any Asset Sales, within 10 Business Days of each date on
which the aggregate amount of Excess Proceeds exceeds $15.0 million,
the Company shall commence an Asset Sale Offer to all Holders and if
the Company elects (or is required by the terms of such other pari
passu indebtedness) all holders of other Indebtedness that is pari
passu with the Notes pursuant to Section 3.09 of the Indenture to
purchase the maximum principal amount of Notes and other pari passu
Indebtedness that may be purchased out of the Excess Proceeds at an
offer price in cash in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest to the Purchase Date in
accordance with
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the procedures set forth in the Indenture. To the extent that the
aggregate amount of Notes and other pari passu Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Company (or such Restricted Subsidiary) may use the remaining Excess
Proceeds for any purpose not otherwise prohibited by the Indenture. If
the aggregate principal amount of Notes and other pari passu
Indebtedness surrendered by holders thereof exceeds the amount of
Excess Proceeds, the Trustee shall select the Notes and other pari
passu Indebtedness to be purchased on a pro rata basis. Holders to whom
an Asset Sale Offer is addressed shall receive an Asset Sale Offer from
the Company prior to the related Purchase Date and may elect to have
such Notes purchased by completing the form entitled "Option of Holder
to Elect Purchase" attached to the Notes.
(8) NOTICE OF REDEMPTION. Notice of redemption shall be mailed
at least 30 days but not more than 60 days before the redemption date
to each Holder whose Notes are to be redeemed at its registered
address, except that redemption notices may be mailed more than 60 days
prior to a redemption date if the notice is issued in connection with a
defeasance of the Notes or a satisfaction and discharge of the
Indenture. Notes in denominations larger than $1,000 may be redeemed in
part but only in whole multiples of $1,000, unless all of the Notes
held by a Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof called for
redemption.
(9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes
may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Issuers may
require a Holder to pay any taxes and fees required by law or permitted
by the Indenture. The Issuers need not exchange or register the
transfer of any Note or portion of a Note selected for redemption,
except for the unredeemed portion of any Note being redeemed in part.
Also, the Issuers need not exchange or register the transfer of any
Notes for a period of 15 days before a selection of Notes to be
redeemed or during the period between a record date and the
corresponding Interest Payment Date.
(10) PERSONS DEEMED OWNERS. The registered Holder of a Note
may be treated as its owner for all purposes.
(11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture, the Subsidiary Guarantees or the Notes may
be amended or supplemented with the consent of the Holders of at least
a majority in aggregate principal amount of the then outstanding Notes,
including without limitation, consents obtained in connection with a
purchase of, or tender offer or exchange offer for, Notes, and any
existing Default or Event of Default or compliance with any provision
of the Indenture, the Subsidiary Guarantees or the Notes may be waived
with the consent of the Holders of a majority in aggregate principal
amount of the then outstanding Notes, including without limitation,
consents obtained in connection with a purchase of, or tender offer or
exchange offer for, Notes. Without the consent of any Holder, the
Indenture, the Subsidiary Guarantees or
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the Notes may be amended or supplemented (i) to cure any ambiguity,
defect or inconsistency, (ii) to provide for uncertificated Notes in
addition to or in place of certificated Notes, (iii) to provide for the
assumption of the Company's or any Guarantor's obligations to Holders
of the Notes in case of a merger or consolidation, (iv) to make any
change that would provide any additional rights or benefits to the
Holders or that does not adversely affect the legal rights under the
Indenture of any such Holder, (v) to comply with the requirements of
the SEC in order to effect or maintain the qualification of the
Indenture under the TIA, (vi) to conform the text of the Indenture, the
Subsidiary Guarantees or the Notes to any provision of the "Description
of Notes" section of the Offering Memorandum to the extent that such
provision in that "Description of Notes" was intended to be a verbatim
recitation of a provision of the Indenture, the Subsidiary Guarantees
or the Notes, (vii) to provide for the issuance of Additional Notes in
accordance with the limitations set forth in the Indenture as of the
Issue Date, (viii) to allow any Guarantor to execute a supplemental
indenture and/or a Subsidiary Guarantee with respect to the Notes, or
(ix) to issue the Exchange Notes. In addition, (a) any amendment to the
provisions of Article 10 of the Indenture (including the definitions of
"Senior Debt" and "Designated Senior Debt") that adversely affects the
rights of any holder of Senior Debt of the Company then outstanding
requires the consent of the holders of such Senior Debt (or any group
or representative thereof authorized to give a consent), and (b) any
amendment or waiver of the provisions of Article 10 of the Indenture
that adversely affects the rights of the Holders requires the consent
of the Holders of at least 66 2/3% in aggregate principal amount of
Notes then outstanding.
(12) DEFAULTS AND REMEDIES. Events of Default include: (i)
default for 30 days in the payment when due of interest on the Notes,
whether or not prohibited by the subordination provisions of the
Indenture; (ii) default in payment when due (at maturity, upon
redemption or otherwise) of the principal of, or premium, if any, on
the Notes whether or not prohibited by the subordination provisions of
the Indenture; (iii) failure by the Company to comply with Section 5.01
of the Indenture; (iv) failure by the Company or any of its Restricted
Subsidiaries for 60 days after notice to the Company by the Trustee or
the Holders of at least 25% in aggregate principal amount of Notes then
outstanding voting as a single class to comply with any of the other
agreements in the Indenture; (v) default under any mortgage, indenture
or instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company
or any of its Significant Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Significant Subsidiaries),
whether such Indebtedness or Guarantee now exists, or is created after
the date of the Indenture, if that default: (a) is caused by a failure
to pay principal at the final Stated Maturity of such Indebtedness (a
"Payment Default") or (b) results in the acceleration of such
Indebtedness prior to its express maturity, and, in each case, the
principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated,
aggregates $15.0 million or more; (vi) certain final judgments and
decrees for the payment of money that remain undischarged for a period
of 60 days after such judgment has become final and nonappealable;
(vii) except as permitted by the Indenture, any Subsidiary Guarantee of
any Significant Subsidiary is declared to be unenforceable or invalid
by any final and nonappealable judgment or decree or ceases for any
reason to be
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in full force and effect, or any Guarantor, that is a Significant
Subsidiary or any Person acting on behalf of any Guarantor that is a
Significant Subsidiary denies or disaffirms its obligations in writing
under its Subsidiary Guarantee and such Default continues for 10 days
after receipt of the notice specified in the Indenture and (viii)
certain events of bankruptcy or insolvency with respect to the Issuers
or any of the Company's Restricted Subsidiaries that is a Significant
Subsidiary. If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of
the then outstanding Notes may declare all the Notes to be due and
payable; provided that so long as any Indebtedness permitted to be
incurred pursuant to the Credit Facilities is outstanding, such
acceleration will not be effective until the earlier of (1) the
acceleration of such Indebtedness under the Credit Facilities or (2)
five Business Days after receipt by the Company of written notice of
such acceleration. Notwithstanding the foregoing, in the case of an
Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes shall become due and payable without
further action or notice. Holders may not enforce the Indenture or the
Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders notice of any
continuing Default or Event of Default (except a Default or Event of
Default relating to the payment of principal or interest) if it
determines that withholding notice is in their interest. The Holders of
a majority in aggregate principal amount of the Notes then outstanding
by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event
of Default in the payment of the principal of, premium or interest on,
the Notes (including in connection with an offer to purchase). The
Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required
upon becoming aware of any Default or Event of Default, to deliver to
the Trustee a statement specifying such Default or Event of Default.
(13) SUBORDINATION. All Obligations in respect of the Notes
are subordinated to the prior payment in full in cash of all Senior
Debt of the Issuers (whether outstanding on the Issue Date or created,
incurred, assumed or guaranteed thereafter) on the terms provided in
the Indenture.
(14) TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not
the Trustee.
(15) NO RECOURSE AGAINST OTHERS. A director, officer,
employee, incorporator, stockholder or member of the Issuers or any of
the Guarantors, as such, shall not have any liability for any
obligations of the Issuers or such Guarantor under the Notes, the
Subsidiary Guarantees or the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each
Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of
the Notes.
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(16) AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
(17) ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants
with right of survivorship and not as tenants in common), CUST
(= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(18) CUSIP NUMBERS. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Notes and the
Trustee may use CUSIP numbers in notices of redemption as a convenience
to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification
numbers placed thereon.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
IASIS Healthcare LLC
IASIS Capital Corporation
000 Xxxxxxxx Xxxx, Xxxxxxxx X
Xxxxxxxx, Xxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
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(Insert assignee's legal name)
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(Insert assignee's soc. sec. or tax I.D. no.)
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(Print or type assignee's name, address and zip code)
and irrevocably appoint
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to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date: _______________
Your Signature:
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(Sign exactly as your name appears on the
face of this Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box
below:
[ ] Section 4.10 [ ] Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:
$---------------
Date: _______________
Your Signature:
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(Sign exactly as your name appears on the
face of this Note)
Tax Identification No.:
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Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Principal Xxxxxx
Xxxxxx of decrease Amount of increase in of this Global Note Signature of
in Principal Amount Principal Amount following such authorized officer
of of decrease of Trustee or
Date of Exchange this Global Note this Global Note (or increase) Custodian
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* This schedule should be included only if the Note is issued in global form
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