1
EXHIBIT 4.1
FRONTIER CORPORATION, AS OBLIGOR
AND
[BANK]
AS TRUSTEE
________________________
INDENTURE
DATED AS OF ________________, 1995
__________________________________________________________
SENIOR DEBT SECURITIES
__________________________________________________________
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TABLE OF CONTENTS
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RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION . . . . . . . . . . . . . . . . . . . . . . 1
Section 101 Definitions . . . . . . . . . . . . . . . . . . . . . . 1
"Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Additional Amounts" . . . . . . . . . . . . . . . . . . . . . . . 2
"Affiliate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Authenticating Agent" . . . . . . . . . . . . . . . . . . . . . . 2
"Authorized Newspaper" . . . . . . . . . . . . . . . . . . . . . . 2
"Bankruptcy Law" . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Bearer Security" . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Board of Directors" . . . . . . . . . . . . . . . . . . . . . . . 3
"Board Resolution" . . . . . . . . . . . . . . . . . . . . . . . . 3
"Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"CEDEL" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Commission" . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Company" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Company Request" and "Company Order" . . . . . . . . . . . . . . . 3
"Consolidated Income Available for Debt Service" . . . . . . . . . 3
"Consolidated Net Income" . . . . . . . . . . . . . . . . . . . . . 4
"Conversion Event" . . . . . . . . . . . . . . . . . . . . . . . . 4
"Corporate Trust Office" . . . . . . . . . . . . . . . . . . . . . 4
"Corporation" . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Coupon" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Custodian" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Debt". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Defaulted Interest". . . . . . . . . . . . . . . . . . . . . . . . 4
"DTC". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Dollar". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"ECU". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Euroclear" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"European Communities" . . . . . . . . . . . . . . . . . . . . . . 5
"European Monetary System" . . . . . . . . . . . . . . . . . . . . 5
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . 5
"Exchange Act" . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Foreign Currency" . . . . . . . . . . . . . . . . . . . . . . . . 5
"GAAP". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Government Obligations". . . . . . . . . . . . . . . . . . . . . . 5
"Holder". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Indenture" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Indexed Security" . . . . . . . . . . . . . . . . . . . . . . . . 6
"Interest" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Interest Payment Date" . . . . . . . . . . . . . . . . . . . . . . 6
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"Make-Whole Amount". . . . . . . . . . . . . . . . . . . . 6
"Maturity" . . . . . . . . . . . . . . . . . . . . . . . . 7
"Maximum Annual Service Charge". . . . . . . . . . . . . . 7
"Officers' Certificate". . . . . . . . . . . . . . . . . . 7
"Opinion of Counsel" . . . . . . . . . . . . . . . . . . . 7
"Original Issue Discount Security" . . . . . . . . . . . . 7
"Outstanding". . . . . . . . . . . . . . . . . . . . . . . 7
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . 8
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Place of Payment" . . . . . . . . . . . . . . . . . . . . 8
"Predecessor Security" . . . . . . . . . . . . . . . . . . 9
"Redemption Date". . . . . . . . . . . . . . . . . . . . . 9
"Redemption Price" . . . . . . . . . . . . . . . . . . . . 9
"Registered Security". . . . . . . . . . . . . . . . . . . 9
"Regular Record Date". . . . . . . . . . . . . . . . . . . 9
"Reinvestment Rate". . . . . . . . . . . . . . . . . . . . 9
"Repayment Date" . . . . . . . . . . . . . . . . . . . . . 9
"Repayment Price". . . . . . . . . . . . . . . . . . . . . 9
"Responsible Officer". . . . . . . . . . . . . . . . . . . 9
"Securities Act" . . . . . . . . . . . . . . . . . . . . . 10
"Security" . . . . . . . . . . . . . . . . . . . . . . . . 10
"Security Register" and "Security Registrar" . . . . . . . 10
"Significant Subsidiary" . . . . . . . . . . . . . . . . . 10
"Special Record Date". . . . . . . . . . . . . . . . . . . 10
"Stated Maturity". . . . . . . . . . . . . . . . . . . . . 10
"Statistical Release". . . . . . . . . . . . . . . . . . . 10
"Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . 10
"Total Assets" . . . . . . . . . . . . . . . . . . . . . . 11
"Trust Indenture Act" or "TIA" . . . . . . . . . . . . . . 11
"Trustee". . . . . . . . . . . . . . . . . . . . . . . . . 11
"United States". . . . . . . . . . . . . . . . . . . . . . 11
"United States Person" . . . . . . . . . . . . . . . . . . 11
"Yield to Maturity". . . . . . . . . . . . . . . . . . . . 11
Section 102 Compliance Certificates and Opinions . . . . 11
Section 103 Form of Documents Delivered to Trustee . . . 12
Section 104 Acts of Holders . . . . . . . . . . . . . . . 12
Section 105 Notices, etc. to Trustee and Company . . . . 14
Section 106 Notice to Holders; Waiver . . . . . . . . . . 15
Section 107 Effect of Headings and Table of Contents. . . 16
Section 108 Successors and Assigns . . . . . . . . . . . 16
Section 109 Separability Clause . . . . . . . . . . . . . 16
Section 110 Benefits of Indenture . . . . . . . . . . . . 16
Section 111 No Personal Liability . . . . . . . . . . . . 16
Section 112 Governing Law . . . . . . . . . . . . . . . . 16
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Section 113 Legal Holidays . . . . . . . . . . . . . . . . . . 16
ARTICLE II SECURITIES FORMS . . . . . . . . . . . . . . . . . 17
Section 201 Forms of Securities . . . . . . . . . . . . . . . . 17
Section 202 Form of Trustee's Certificate of Authentication . . 17
Section 203 Securities Issuable in Global Form . . . . . . . . 18
ARTICLE III THE SECURITIES . . . . . . . . . . . . . . . . . . 19
Section 301 Amount Unlimited: Issuable in Series . . . . . . . 19
Section 302 Denominations . . . . . . . . . . . . . . . . . . . 22
Section 303 Execution, Authentication, Delivery and Dating . . 22
Section 304 Temporary Securities . . . . . . . . . . . . . . . 25
Section 305 Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . . . . 27
Section 306 Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . . . 30
Section 307 Payment of Interest; Interest Rights Preserved . . 32
Section 308 Persons Deemed Owners . . . . . . . . . . . . . . . 34
Section 309 Cancellation . . . . . . . . . . . . . . . . . . . 34
Section 310 Computation of Interest . . . . . . . . . . . . . . 35
ARTICLE IV SATISFACTION AND DISCHARGE . . . . . . . . . . . . 35
Section 401 Satisfaction and Discharge of Indenture . . . . . . 35
Section 402 Application of Trust Funds . . . . . . . . . . . . 36
ARTICLE V REMEDIES . . . . . . . . . . . . . . . . . . . . . 37
Section 501 Events of Default . . . . . . . . . . . . . . . . . 37
Section 502 Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . 38
Section 503 Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . 40
Section 504 Trustee May File Proofs of Claim . . . . . . . . . 40
Section 505 Trustee May Enforce Claims Without Possession
of Securities or Coupons . . . . . . . . . . . . . 41
Section 506 Application of Money Collected . . . . . . . . . . 41
Section 507 Limitation on Suits . . . . . . . . . . . . . . . . 42
Section 508 Unconditional Right of Holders to Receive
Principal, Premium or Make-Whole Amount, if
any, Interest and Additional Amounts . . . . . . . 42
Section 509 Restoration of Rights and Remedies . . . . . . . . 43
Section 510 Rights and Remedies Cumulative . . . . . . . . . . 43
Section 511 Delay or Omission Not Waiver . . . . . . . . . . . 43
Section 512 Control by Holders of Securities . . . . . . . . . 43
Section 513 Waiver of Past Defaults . . . . . . . . . . . . . . 44
Section 514 Waiver of Usury, Stay or Extension Laws . . . . . . 44
Section 515 Undertaking for Costs . . . . . . . . . . . . . . . 44
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ARTICLE VI THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . 45
Section 601 Notice of Defaults . . . . . . . . . . . . . . . . . 45
Section 602 Certain Rights of Trustee . . . . . . . . . . . . . . 45
Section 603 Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . . . . 46
Section 604 May Hold Securities . . . . . . . . . . . . . . . . . 47
Section 605 Money Held in Trust . . . . . . . . . . . . . . . . . 47
Section 606 Compensation and Reimbursement . . . . . . . . . . . 47
Section 607 Corporate Trustee Required; Eligibility; Conflicting
Interests . . . . . . . . . . . . . . . . . . . . . 48
Section 608 Resignation and Removal; Appointment of Successor . . 48
Section 609 Acceptance of Appointment by Successor . . . . . . . 49
Section 610 Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . 50
Section 611 Appointment of Authenticating Agent . . . . . . . . . 51
ARTICLE VII HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY . . 52
Section 701 Disclosure of Names and Addresses of Holders . . . . 52
Section 702 Reports by Trustee . . . . . . . . . . . . . . . . . 53
Section 703 Reports by Company . . . . . . . . . . . . . . . . . 53
Section 704 The Company to Furnish Trustee Names and Addresses of
Holders. . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE VIII CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE . . 54
Section 801 Consolidation and Mergers of Company and Sales,
Leases and Conveyances Permitted Subject to Certain
Conditions . . . . . . . . . . . . . . . . . . . . . 54
Section 802 Rights and Duties of Successor Entity . . . . . . . . 54
Section 803 Officers' Certificate and Opinion of Counsel . . . . 55
ARTICLE IX SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . 55
Section 901 Supplemental Indentures Without Consent of Holders . 55
Section 902 Supplemental Indentures with Consent of Holders . . . 56
Section 903 Execution of Supplemental Indentures . . . . . . . . 57
Section 904 Effect or Supplemental Indentures . . . . . . . . . . 58
Section 905 Conformity with Trust Indenture Act . . . . . . . . . 58
Section 906 Reference in Securities to Supplemental Indentures . 58
Section 907 Notice of Supplemental Indentures . . . . . . . . . . 58
ARTICLE X COVENANTS . . . . . . . . . . . . . . . . . . . . . . 58
Section 1001 Payment of Principal, Premium or Make-Whole Amount,
if any, Interest and Additional Amounts. . . . . . . 58
Section 1002 Maintenance of Office or Agency . . . . . . . . . . . 59
Section 1003 Money for Securities Payments to Be Held in Trust . . 60
Section 1004 [Omitted] . . . . . . . . . . . . . . . . . . . . . . 62
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Section 1005 [Omitted] . . . . . . . . . . . . . . . . . . . . 62
Section 1006 Existence . . . . . . . . . . . . . . . . . . . . 62
Section 1007 Maintenance of Properties . . . . . . . . . . . . 62
Section 1008 Insurance . . . . . . . . . . . . . . . . . . . . 62
Section 1009 Payment of Taxes and Other Claims . . . . . . . . 62
Section 1010 Provision of Financial Information . . . . . . . 63
Section 1011 Statement as to Compliance . . . . . . . . . . . 63
Section 1012 Additional Amounts . . . . . . . . . . . . . . . 63
Section 1013 Waiver of Certain Covenants . . . . . . . . . . . 64
ARTICLE XI REDEMPTION OF SECURITIES . . . . . . . . . . . . 65
Section 1101 Applicability of Article . . . . . . . . . . . . 65
Section 1102 Election to Redeem; Notice to Trustee . . . . . . 65
Section 1103 Selection by Trustee of Securities to Be
Redeemed. . . . . . . . . . . . . . . . . . . . . 65
Section 1104 Notice of Redemption . . . . . . . . . . . . . . 65
Section 1105 Deposit of Redemption Price . . . . . . . . . . . 67
Section 1106 Securities Payable on Redemption Date . . . . . . 67
Section 1107 Securities Redeemed in Part . . . . . . . . . . . 68
ARTICLE XII [INTENTIONALLY OMITTED] . . . . . . . . . . . . . 68
ARTICLE XIII REPAYMENT AT THE OPTION OF HOLDERS . . . . . . . 68
Section 1301 Applicability of Article . . . . . . . . . . . . 68
Section 1302 Repayment of Securities . . . . . . . . . . . . . 68
Section 1303 Exercise of Option . . . . . . . . . . . . . . . 69
Section 1304 When Securities Presented for Repayment Become
Due and Payable . . . . . . . . . . . . . . . . . 70
Section 1305 Securities Repaid in Part . . . . . . . . . . . . 70
ARTICLE XIV DEFEASANCE AND COVENANT DEFEASANCE . . . . . . . 71
Section 1401 Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance . . . . 71
Section 1402 Defeasance and Discharge . . . . . . . . . . . . 71
Section 1403 Covenant Defeasance . . . . . . . . . . . . . . . 72
Section 1404 Conditions to Defeasance or Covenant Defeasance . 72
Section 1405 Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions . . 74
ARTICLE XV MEETINGS OF HOLDERS OF SECURITIES . . . . . . . . 75
Section 1501 Purposes for Which Meetings May Be Called . . . . 75
Section 1502 Call, Notice and Place of Meetings . . . . . . . 75
Section 1503 Persons Entitled to Vote at Meetings . . . . . . 76
Section 1504 Quorum; Action . . . . . . . . . . . . . . . . . 76
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Section 1505 Determination of Voting Rights; Conduct and
Adjournment of Meetings . . . . . . . . . . . . . 77
Section 1506 Counting Votes and Recording Action of Meetings . 78
Section 1507 Evidence of Action Taken by Holders . . . . . . . 78
Section 1508 Proof of Execution of Instruments . . . . . . . . 78
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FRONTIER CORPORATION, AS OBLIGOR
Reconciliation and tie between Trust Indenture Act of 1939 (the "1939
Act") and this Indenture, dated as of ________________, 1995.
Trust Indenture Act Section Indenture Section
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 607
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 607
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .607, 608
Section 312 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
Section 316 (a)(last sentence) . . . . . . . . . . . . . 101 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
__________________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of this Indenture.
Attention should also be directed to Section 318(c) of the 1939 Act,
which provides that the provisions of Sections 310 to and including 317 of the
1939 Act are a part of and govern every qualified indenture, whether or not
physically contained therein.
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Indenture (this "Indenture"), dated as of _____________, 199__, by and
between FRONTIER CORPORATION, a New York business corporation (the "Company")
having its principal office at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx
00000-0700, and [BANK], a national bank organized under the laws of the United
States of America, as Trustee hereunder (the "Trustee"), having its Corporate
Trust Office (as defined below) at __________________________.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its lawful
purposes senior debt securities (the "Securities") evidencing its unsecured
indebtedness, and has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of the Securities,
unlimited as to aggregate principal amount, to bear interest at the rates or
formulas, to mature at such times and to have such other provisions as shall be
fixed therefor as hereinafter provided.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, that are deemed to be incorporated into this Indenture and
shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, 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 thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101 Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA, either
directly or by reference therein, have the meanings assigned to them therein,
and the terms "cash transaction" and "self-liquidating paper", as used in TIA
Section 311, shall have the meanings assigned to them in the rules of the
Commission adopted under the TIA;
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(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or subdivision.
Certain terms, used principally in Article III, Article V, Article VI and
Article X, are defined in those Articles. In addition, the following terms
shall have the indicated respective meanings:
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are required
by a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes
imposed on certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any authenticating agent appointed by
the Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means any Security established pursuant to Section
201 which is payable to bearer.
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"Board of Directors" means the board of directors of the Company, the
executive committee or any committee of that board duly authorized to act
hereunder, as the case may be.
"Board Resolution" means a copy of a resolution of the Company,
certified by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions in that Place of Payment or
particular location are authorized or required by law, regulation or executive
order to close.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or
its successor.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Company shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Company.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of and on behalf of the Company by (i) its
Chairman of the Board, the President or a Vice President, and (ii) its
Treasurer, an Assistant Treasurer, Secretary, or an Assistant Secretary, and
delivered to the Trustee.
"Consolidated Income Available for Debt Service" for any period means
Consolidated Net Income of the Company and its Subsidiaries adjusted (i) to
eliminate gains and losses on property dispositions, refinancings and other
capital transactions, (ii) to reflect payment of deferred changes on a cash
rather than accrual basis, and (iii) to add back all amounts which have been
deducted for (a) interest on Debt of the Company and its Subsidiaries, (b)
provision for taxes of the Company and its Subsidiaries based on income, (c)
amortization of debt discount, (d) depreciation and amortization, and (e) any
noncash charge resulting from a change in accounting principles in determining
Consolidated Net Income for such period.
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"Consolidated Net Income" for any period means the amount of
consolidated net income (or loss) of the Company and its Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU
both within the European Monetary System and for the settlement of transactions
by public institutions of or within the European Communities or (iii) any
currency unit (or composite currency) other than the ECU 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 hereof is located at
___________________, except that for purposes of Section 1002, such term shall
mean of the office or agency of the Trustee in the ________________, which
office at the date hereof is located at ______________.
"Corporation" includes corporations, associations, and companies.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Custodian" has the meaning specified in Section 501.
"Debt" of the Company or any Subsidiary means any indebtedness of the
Company or any Subsidiary, whether or not contingent, in respect of (i)
borrowed money or evidenced by bonds, notes, debentures or similar instruments,
(ii) indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or
any security interest existing on property owned by the Company or any
Subsidiary, (iii) letters of credit, (iv) amounts representing the balance
deferred and unpaid of the purchase price of any property except any such
balance that constitutes an accrued expense or trade payable or (v) any lease
of property by the Company or any Subsidiary as lessee which is reflected on
the Company's Consolidated Balance Sheet as a capitalized lease in accordance
with GAAP, in the case of items of indebtedness under (i) through (iv) above to
the extent that any such items (other than letters of credit) would appear as a
liability on the Company's consolidated balance sheet in accordance with GAAP,
and also includes, to the extent not otherwise included, any obligation by the
Company or any Subsidiary to be liable for, or to pay, as obligor, guarantor or
otherwise (other than for purposes of collection in the ordinary course of
business), indebtedness of another person (other than the Company or any
Subsidiary).
"Defaulted Interest" has the meaning specified in Section 307.
"DTC" means The Depository Trust Company for so long as it shall be a
clearing agency registered under the Exchange Act, or such successor as the
Company shall designate from time to time in an Officer's Certificate delivered
to the Trustee.
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"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Counsel of the European Communities.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Event of Default" has the meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934 and any
successor statute thereto, in each case as amended from time to time, and the
rules and regulations of the Commission thereunder.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU, 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 governments.
"GAAP" means generally accepted accounting principles, as in effect
from time to time, as used in the United States applied on a consistent basis;
provided, that solely for purposes of any calculation required by the financial
covenants contained herein, "GAAP" shall mean generally accepted accounting
principles as used in the United States on the date hereof, applied on a
consistent basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable,
for the payment of which its full faith and credit is pledged 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 government which issued
the foreign currency in which the Securities of such series are payable, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government, 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 any such Government Obligation
held by such custodian for the account of the holder of a
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depository receipt, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Obligation or the specific payment of interest on or principal
of the Government Obligation evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case
of a Bearer Security, the bearer thereof and, when used with respect to any
coupon, shall mean the bearer thereof.
"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 shall include the terms of particular series of Securities established as
contemplated by Section 301; 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 the particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is Trustee, regardless of when such terms or provisions were
adopted and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person
had become such Trustee but to which such Person, as such Trustee, was not a
party.
"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" when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security
which provides for the payment of Additional Amounts pursuant to Section 1012,
includes such Additional Amounts.
"Interest Payment Date" when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Make-Whole Amount" means the amount, if any, in addition to
principal which is required by a Security, under the terms and conditions
specified therein or as otherwise specified as contemplated by Section 301 to
be paid by the Company to the Holder thereof in connection with any optional
redemption or accelerated payment of such Security.
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"Maturity" when used 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 therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Maximum Annual Service Charge" for any period means the amount
payable (including, if determined on a pro forma basis, the maximum amount
which may become payable) in any 12-month period for interest on Debt.
"Officers' Certificate" means a certificate complying with Section
102 signed by the Chairman of the Board of Directors, the President or a
Vice-President and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel complying
with Section 102, who may be counsel for the Company or who may be an employee
of or other counsel for the Company and who shall be reasonably satisfactory to
the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
or repayment at the option of the Holder money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities
and any coupons appertaining thereto, 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;
(iii) Securities, except to the extent provided in Sections 1402
and 1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article XII; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to
it that such Securities are held
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by a bona fide purchaser in whose hands such Securities are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for
such purpose shall be equal to the amount of principal thereof that would be
(or shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be
equal to the Dollar equivalent, determined pursuant to Section 301 as of the
date such Security is originally issued by the Company, of the principal amount
(or, in the case of an Original Issue Discount Security, the Dollar equivalent
as of such date of original issuance of the amount determined as provided in
clause (i) above) of such Security, (iii) the principal amount of any Indexed
Security that may be counted in making such determination or calculation and
that shall be deemed outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original issuance, unless
otherwise provided with respect to such Security pursuant to Section 301, and
(iv) Securities owned by the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in making such calculation or in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and Premium or Make-Whole Amount, if any) or interest on any
Securities or coupons on behalf of the Company.
"Person" means any individual, corporation, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of or
within any series, means the place or places where the principal of (and
Premium or Make-Whole Amount, if any) and interest on such Securities are
payable as specified as contemplated by Sections 301 and 1002.
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"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a
Security to which a mutilated, destroyed, lost or stolen coupon appertains
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security or the Security to which the mutilated, destroyed, lost or
stolen coupon appertains.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" shall mean any Security which is registered in
the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the
date specified for that purpose as contemplated by Section 301, whether or not
a Business Day.
"Reinvestment Rate" means 0.25% (one-fourth of one percent) plus the
yield under the heading "Week Ending" published in the most recent Statistical
Release under the caption "Treasury Constant Maturities" for the maturity
(rounded to the nearest month) corresponding to the remaining life to maturity,
as of the payment date, of the principal being redeemed or paid. If no
maturity exactly corresponds to such maturity, yields for the two published
maturities most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment Rate shall
be interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the
purposes of calculating the Reinvestment Rate, the most recent Statistical
Release published prior to the date of determination of the premium shall be
used.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether
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or not designated by a number or a word or words added before or after the
title "vice president"), the secretary, any assistant secretary, the treasurer,
any assistant treasurer, the cashier, any assistant cashier, any trust officer
or assistant trust officer, the controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of such
officer's knowledge and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933 and any successor
statute thereto, in each case as amended from time to time, and the rules and
regulations of the Commission thereunder.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities
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 the Indenture as to which such Person
is Trustee shall have the meaning stated in the first recital of this Indenture
and shall more particularly 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.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act) of the Company.
"Special Record Date" for the payment of any Defaulted Interest on
the Registered Securities of or within any series means a date fixed by the
Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded United
States government securities adjusted to constant maturities, or, if such
statistical release is not published at the time of any determination under the
Indenture, then such other reasonably comparable index which shall be
designated by the Company.
"Subsidiary" means a corporation or a partnership a majority of the
outstanding voting stock or partnership interests, as the case may be, of which
is owned, directly or indirectly, by the Company or by one or more other
Subsidiaries of the Company. For the purposes of this definition, "voting
stock" means stock having voting
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power for the election of directors, whether at all times or only so long as no
senior class of stock has such voting power by reason of any contingency.
"Total Assets" as of any date means the assets of the Company and its
Subsidiaries on a consolidated basis determined in accordance with GAAP (but
excluding intangibles and accounts receivable).
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, Company or other entity created
or organized in or under the laws of the United States or an estate or trust
the income of which is subject to United States federal income taxation
regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
Section 102 Compliance Certificates and Opinions. Upon any application
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
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Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (including certificates delivered
pursuant to Section 1011) shall include:
(1) a statement that each individual signing such certificate or opinion
has read such condition or covenant and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or she
has made such examination or investigation as is necessary to enable him or her
to express an informed opinion as to whether or not such condition or covenant
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103 Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion as to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows that the certificate or
opinion or representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104 Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders of the Outstanding Securities of all series or
one or more series, as the case may be, may be embodied in and evidenced by one
or more instruments of substantially
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similar tenor signed by such Holders in person or by agents duly appointed in
writing. If Securities of a series are issuable as Bearer Securities, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders of Securities
of such series may, alternatively, be embodied in and evidenced by the record
of Holders of Securities of such series voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the
provisions of Article XIV, or a combination of such instruments and any such
record. Except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments or so voting at any
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the Company, if made in
the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Securities; if such certificate or affidavit is
deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no
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longer Outstanding. The ownership of Bearer Securities may also be proved in
any other manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act the Company may, at its option, in or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do
so. Notwithstanding TIA Section 316(c), such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a date
not earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. 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 record at the close
of business on such record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or 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 on
such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Company
in reliance thereon, whether or not notation of such action is made upon such
Security.
Section 105 Notices, etc. to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, give or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
satisthe Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
Indenture or at any other address previously furnished in writing to the
Trustee by the Company.
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Section 106 Notice to Holders; Waiver. Where this Indenture provides
for notice of any event to Holders of Registered Securities by the Company or
the Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his 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. In any case where
notice to Holders of Registered Securities is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. Any notice mailed to a
Holder in the manner herein prescribed shall be conclusively deemed to have
been received by such Holder, whether or not such Holder actually receives such
notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Registered Securities as
shall be made satisthe approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in the City
of New York and in such other city or cities as may be specified in such
Securities on a Business Day, such publication to be not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the date of the first such
publication.
If by reason of the suspension of publication of any Authorized Newspaper
or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
satisthe approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above,
nor any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Where this Indenture provides for notice in any manner, such notice may be
xxxxxx in writing by the Person entitled to receive such notice, either before
or after the
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event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed satisthe Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
Section 107 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 108 Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall be binding on their successors and assigns,
whether so expressed or not.
Section 109 Separability Clause. In case any provision in this
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 110 Benefits of Indenture. Nothing in this Indenture, in the
Securities or coupons, express or implied, shall give to any Person, other than
the Parties hereto, any Security Registrar, any Paying Agent, any
Authenticating Agent and their respective successors hereunder, and the
Holders, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
Section 111 No Personal Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, in any Security
or coupon appertaining thereto, or because of any indebtedness evidenced
thereby, shall be had against any promoter, as such, or against any past,
present or future shareowner, officer or trustee, as such, of the Company or of
any successor, either directly or througisthe Company or any successor, either
directly or througisthe Company or any 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 xxxxxx and released by the acceptance of the Securities by the
Holders thereof and as part of the consideration for the issue of the
Securities.
Section 112 Governing Law. This Indenture and the Securities and
coupons shall be governed by and construed in accordance satisthe law of the
State of New York. This Indenture is subject to the provisions of the TIA that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions.
Section 113 Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, Repayment Date, sinking fund paying date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place
of Payment, then (notsatistanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
Interest or any Additional Amounts or principal (and Premium or Make-Whole
amount, if any) need not be made at such Place
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of Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment satisthe same force and effect as if made on the Interest
Payment Date, Redemption Date, Repayment Date or sinking fund payment date, or
at the Stated Maturity or Maturity, provided that no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or
Maturity, as the case may be.
ARTICLE II
SECURITIES FORMS
Section 201 Forms of Securities. The Registered Securities, if any, of
each series and the Bearer Securities, if any, of each series and related
coupons shall be in substantially the forms as shall be established in one or
more indentures supplemental hereto or approved from time to time by or
pursuant to a Board Resolution in accordance satisthis Indenture, shall have
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture or any indenture supplemental
hereto, and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company may
deem appropriate and as are not inconsistent satisthe provisions of this
Indenture, or as may be required to comply satisany law or satisany rule or
regulation made pursuant thereto or satisany rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced
by their execution of such Securities or coupons.
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:
This is one of the Securities of the series designated therein referred
to in the satiin-mentioned Indenture.
[BANK], as Trustee
By: ___________________________
Authorized Signatory
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Section 203 Securities Issuable in Global Form. If Securities of or
satiin a series are issuable in global form, as specified as contemplated by
Section 301, then, notsatistanding clause (8) of Section 301 and the provisions
of Section 302, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be
increased or decreased to reflect exchanges. Any endorsement of a Security in
global form to reflect the amount, or any increase or decrease in the amount,
of Outstanding Securities represented thereby shall be made by the Trustee in
such manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or 304. Subject to the provisions of Section 303 and,
if applicable, Section 304, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Company Order. If
a Company Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company satisrespect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but
need not comply satisSection 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security sas never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together satiswritten instructions (which need not
comply satisSection 102 and need not be accompanied by an Opinion of Counsel)
sati regard to the reduction in the principal amount of Securities represented
thereby, together satisthe sritten statement contemplated by the last sentence
of Section 303.
Notsatistanding the provisions of Section 307, unless otherwise specified
as contemplated by Section 301, payment of principal of any premium and
interest on any Security in permanent global form shall be made to the Person
or Persons specified therein.
Notsatistanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a
permanent global Security in bearer form, Euroclear or CEDEL.
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ARTICLE III
THE SECURITIES
Section 301 Amount Unlimited: Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
tiis Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted
by one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate complying sati
Section 102, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series, any or all of the following,
as applicable (each of which (except for the matters set forth in clauses (1),
(2) and (15) below), if so provided, may be determined from time to time by the
Company satisrespect to unissued Securities of the series when issued from time
to time):
(1) the title of the Securities of the series (which shall distinguish
the Securities of such series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that 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 the series pursuant to
Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates xxxx be
determined, on which the principal of the Securities of the series shall be
payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest Payment
Dates on which such interest xxxx be payable and the Regular Record Date, if
any, for the interest payable on any Registered Security on any Interest
Payment Date, or the method by which such date shall be determined, and the
basis upon which interest shall be calculated if other than that of a 360-day
year of twelve 30-day montis;
(5) the place or places, if any, other than or in addition to the Borough
of Manhattan, the City of New York, where the principal of (and premium or
Make-Whole Amount, if any), interest, if any, on, and Additional Amounts, if
any, payable in respect of, Securities of the series shall be payable, any
Registered Securities of the series may be surrendered for registration of
transfer, exchange or conversion and notices or demands to or upon the Company
in respect of the Securities of the series and this Indenture may be served;
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(6) the period or periods satiin which, the price or prices (including
the premium or Make-Whole Amount, if any) at which, the currency or currencies,
currency unit or units or composite currency or currencies in which, and other
terms and conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company, if the Company is to have the
option;
(7) the obligation, if any, of the Company to redeem, repay or purchase
Securities of the series pursuant to any provision or at the option of a Holder
thereof, and the period or periods satiin which or the date of dates on which,
the price or prices at which, the currency or currencies; currency unit or
units or composite currency or currencies in which, and other terms and
conditions upon which Securities of the series shall be redeemed, repaid or
purchased (including satiout limitation whether, and the extent to which, the
premium shall be payable in connection theresati), in whole or in part,
pursuant to such obligation.
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of the series
shall be issuable and, if other than the denomination of $5,000, the
denomination or denominations in which any Bearer Securities of the series
shall be issuable;
(9) if other than the Trustee, the identity of each Security Registrar
and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that is convertible in accordance
watisthe provisions of this Indenture, or the method by which such portion
shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies in which
payment of the principal of (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts, if any, on the Securities of the series shall
be payable or in which the Securities of the series shall be denominated;
(12) whether the amount of payments of principal of (and premium or
Make-Whole Amount, if any) or interest, if any, on the Securities of the series
may be determined sati reference to an index, formula or other method (which
index, formula or method may be based, satiout limitation, on one or more
currencies, currency units, composite currencies, commodities, equity indices
or other indices), and the manner in which such amounts shall be determined.
(13) whether the principal of (and premium or Make-Whole Amount, if any)
or interest or Additional Amounts, if any, on the Securities of the series are
to be payable, at the election of the Company, or a Holder thereof, in a
currency or currencies, currency unit or units or composite currency or
currencies other than that in which such Securities are denominated or stated
to be payable, the period or periods satiin which, and the terms and conditions
upon which, such election may be made, and the time and manner of, and identity
of the exchange rate agent sati responsibility for, determining the
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exchange rate between the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are denominated or
stated to be payable and the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are to be so payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the Events of
Default or covenants of the Company sati respect to Securities of the series,
whether or not such Events of Default or covenants are consistent sati the
Events of Default or covenants set fortisherein;
(16) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (watisor satiout coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities and
the terms upon which Bearer Securities of the series may be exchanged for
Registered Securities of the series and vice versa (if permitted by applicable
laws and regulations), whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the series are
to be issuable in permanent global form watisor satiout coupons and, if so,
whether beneficial owners of interests in any such permanent global Security
may exchange such interests for Securities of such series and of like tenor of
any autiorized form and denomination and the circumstances under shich any such
exchanges may occur, if other than in the manner provided in Section 305, and,
if Registered Securities of the series are to be issuable as a global Security,
the identity of the depositary for such series;
(17) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, the manner in which, or the
Person to whom, any interest on any Bearer Security of the series shall be
payable, if otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to which, or the
manner in which, any interest payable on a temporary global Security on an
Interest Payment Date will be paid if other than in the manner provided in
Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of the series and any provisions in modification of, in addition to
or in lieu of any of the provisions of Article XIV;
(20) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon
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receipt of certain certificates or other documents or satisfaction of other
conditions, then the form and/or terms of such certificates, documents or
conditions;
(21) if the Securities of the series are to be issued upon the exercise of
warrants, the time, manner and place for such Securities to be autienticated
and delivered;
(22) whether and under shat circumstances the Company xxxx pay Additional
Amounts as contemplated by Section 1012 on the Securities of the series to any
Holder who is not a United States person (including any modification to the
definition of such term) in respect of any tax, assessment or governmental
charge and, if so, whether the Company xxxx have the option to redeem such
Securities rather than pay such Additional Amounts (and the terms of any such
option);
(23) any other terms of the series (which terms shall not be inconsistent
wati the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set fortisin such Officers' Certificate or in any such
indenture supplementalshereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, satiout the consent of the Holders, for issuances of additional
Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an
appropriate record of such action(s) shall be certified by the Secretary or an
Assistant Secretary of the Company on behalf of the Company and delivered to
the Trustee at or prior to the delivery of the Officers' Certificate setting
forti the terms of the Securities of such series.
Section 302 Denominations. The Securities of each series shall be
issuable in such denominations as shall be specified as contemplated by Section
301. Wati respect to Securities of any series denominated in Dollars, in the
absence of any such provisions wati respect to the Securities of any series,
the Registered Securities of such series, other than Registered Securities
issued in global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in a denomination of
$5,000.
Section 303 Execution, Autientication, Delivery and Dating. The
Securities and any coupons appertaining thereto shall be executed by (i) the
Company's Chairman of the Board, President, or one of its Executive Vice
Presidents, and (ii) its Chief Financial Officer. The signature of any of
these officers on the Securities and coupons may be manual or facsimile
signatures of the present or any future such autiorized officer and may be
imprinted or otherwise reproduced on the Securities.
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Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwatistanding that such individuals or any of them have ceased
to hold such offices prior to the autientication and delivery of such
Securities did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together wati any
coupon appertaining thereto, executed by the Company to the Trustee for
autientication, together wati a Company Order for the autientication and
delivery of such Securities, and the Trustee in accordance wati the Company
order shall autienticate and deliver such Securities; provided, however, that,
in connection wati its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided furtier
that, unless otherwise specified wati respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection wati
its original issuance only if the Person entitled to receive such Bearer
security shall have furnished a certificate to Euroclear or CEDEL, as the case
may be, in the form set fortisin Exhibit A-1 to this Indenture or such otier
certificate as may be specified wati respect to any series of Securities
pursuant to Section 301, dated no earlier than 15 days prior to the earlier of
the date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance wati the terms of such temporary Security and this Indenture. If
any Security shall be represented by a permanent global Bearer Security, then,
for purposes of this Section and Section 304, the notation of a beneficial
owner's interest therein upon original issuance of such Security or upon
exchange of a portion of a temporary global Security shall be deemed to be
delivery in connection wati its original issuance of such beneficial owner's
interest in such permanent global Security. Except as permitted by Section
306, the Trustee shall not autienticate and deliver any Bearer security unless
all appurtenant coupons for interest then matured have been detached and
canceled.
If all the Securities of any series are not to be issued at one time and
if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set fortisprocedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate or formula,
maturity date, date of issuance and date from which interest shall accrue. In
autienticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to TIA Section 315(a) through 315(d)) shall
be fully protected in relying upon.
(a) an Opinion of Counsel complying wati Section 102 and stating that
(i) the form or forms of such Securities and any coupons have
been established in conformity wati the provisions of this Indenture;
(ii) the terms of such Securities and any coupons have been
established in conformity wati the provisions of this Indenture; and
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(iii) such Securities, together wati any coupons
appertaining thereto, when completed by appropriate insertions and
executed and delivered by the Company to the Trustee for autientication in
accordance wati this Indenture, autienticated and delivered by the Trustee
in accordance wati this Indenture and issued by the Company in the manner
and subject to any conditions specified in such Opinion of Counsel, will
constitute legal, valid and binding obligations of the Company,
enforceable in accordance wati their terms, subject to applicable
bankruptcy, insolvency, reorganization and otier similar laws of general
applicability relating to or affecting the enforcement of creditors'
rights generally and to general equitable principles; and
(b) an Officers' Certificate stating that all conditions precedent
provided for in this Indenture relating to the issuance of the Securities have
been complied wati and that, to the best of the knowledge of the signers of
such certificate, that no Event of Default wati respect to any of the
Securities shall have occurred and be continuing.
If such form or terms have been so established, the Trustee shall not be
required to autienticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwatistanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one
time, it shall not be necessary to delivery an Officers' Certificate otherwise
required pursuant to Section 301 or a Company Order, or an Opinion of Counsel
or an Officers' Certificate otherwise required pursuant to the preceding
paragraph at the time of issuance of each Security of such series, but such
order, opinion and certificates, wati appropriate modifications to cover such
future issuances, shall be delivered at or before the time of issuance of the
first Security of such series.
Each Registered Security shall be dated the date of its autientication and
each Bearer Security shall be dated as of the date specified as contemplated by
Section 301.
No Security or coupon shall be entitled to my benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
or Security to which such coupon appertains a certificate of autientication
substantially in the form provided for herein duly executed by the Trustee by
manual signature of an autiorized signatory, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly autienticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwatistanding the foregoing, if any Security
shall have been autienticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together wati a written statement
(which need not comply wati Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold
by the Company, for all purposes of
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this Indenture such Security shall be deemed never to have been autienticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 304 Temporary Securities. (a) Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order, the Trustee shall autienticate and deliver, temporary Securities which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any autiorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form, or, if
autiorized, in bearer form wati one or more coupons or watiout coupons, and
wati such appropriate insertions, omissions, substitutions and otier variations
as the officers executing such Securities may determine, as conclusively
evidenced by their execution of such Securities. In the case of Securities of
any series, such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance wati Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared watiout unreasonable delay. After the preparation of definitive
securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, watiout charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any nonmatured coupons appertaining thereto), the Company shall
execute and the Trustee shall autienticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of autiorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance wati the conditions set forti in
Section 303. 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.
(b) Unless otherwise provided in or pursuant to a Board Resolution,
this Section 304(b) shall govern the exchange of temporary Securities issued in
global form otier than througi the facilities of The Depository Trust Company.
If any such temporary Security is issued in global form, then such temporary
global Security shall, unless otherwise provided therein, be delivered to the
London office of a depositary or common depositary (the "Common Depositary"),
for the benefit of Euroclear and CEDEL for credit to the respective accounts of
the beneficial owners of such Securities (or to such otier accounts as they may
direct).
Watiout unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security,
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executed by the Company. On or after the Exchange Date, such temporary global
Security shall be surrendered by the Common Depositary to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to
time in part, for definitive Securities watiout charge, and the Trustee shall
autienticate and deliver, in exchange for each portion of such temporary global
Security, an equal aggregate principal amount of definitive Securities of the
same series of autiorized denominations and of like tenor as the portion of
such temporary global Security to be exchanged. The definitive Securities to
be delivered in exchange for any such temporary global Security shall be in
bearer form, registered form, permanent global bearer form or permanent global
registered form, or any combination thereof as specified as contemplated by
Section 301, and, if any combination thereof is so specified, as requested by
the beneficial owner thereof; provided, however, that, unless otherwise
specified in such temporary global Security, upon such presentation by the
Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by
Euroclear as to the portion of such temporary global Security held for its
account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forti
in Exhibit A-2 to this Indenture or in such otier form as may be established
pursuant to Section 301; and provided furtier that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary global Security
only in compliance wati the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear
or CEDEL, as the case may be, to request such exchange on his behalf and
delivers to Euroclear or CEDEL, as the case may be, a certificate in the form
set forti in Exhibit A-1 to this Indenture (or in such otier form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to
the Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL the Trustee, any Autienticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise specified
in such temporary global Security, any such exchange shall be made free of
charge to the beneficial owners of such temporary global Security, except that
a Person receiving definitive Securities must bear the cost of insurance,
postage, transportation and the like unless such Person takes delivery of such
definitive Securities in person at the offices of Euroclear or CEDEL.
Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary global Security shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
autienticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series occurring prior to
the applicable Exchange Date shall be payable
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to Euroclear and CEDEL on such Interest Payment Date upon delivery by Euroclear
and CEDEL to the Trustee of a certificate or certificates in the form set forti
in Exhibit A-2 to this Indenture (or in such otier forms as may be established
pursuant to Section 301), for credit watiout furtier interest on or after such
Interest Payment Date to the respective accounts of Persons who are the
beneficial owners of such temporary global Security on such Interest Payment
Date and who have each delivered to Euroclear or CEDEL, as the case may be, a
certificate dated no earlier than 15 days prior to the Interest Payment Date
occurring prior to such Exchange Date in the form set forti as Exhibit A-1 to
this Indenture (or in such otier forms as may be established pursuant to
Section 301). Notwatistanding anything to the contrary herein contained, the
certifications made pursuant to this paragraph shall satisfy the certification
requirements of the preceding two paragraphs of this Section 304(b) and of the
third paragraph of Section 303 of this Indenture and the interests of the
Persons who are the beneficial owners of the temporary global Security wati
respect to which such certification was made will be exchanged for definitive
Securities of the same series and of like tenor on the Exchange Date or the
date of certification if such date occurs after the Exchange Date, watiout
furtier act or deed by such beneficial owners. Except as otherwise provided in
this paragraph, no payments of principal or interest owing wati respect to a
beneficial interest in a temporary global Security wall be made unless and
until such interest in such temporary global Security shall have been exchanged
for an interest in a definitive Security. Any interest so received by
Euroclear and CEDEL and not paid as herein provided shall be returned to the
Trustee prior to the expiration of two years after such Interest Payment Date
in order to be repaid to the Company.
Section 305 Registration, Registration of Transfer and Exchange. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee or
in any office or agency of the Company in a Place of Payment a register for
each series of Securities (the registers maintained in such office or in any
such office or agency of the Company in a Place of Payment being herein
sometimes referred to collectively as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and of transfer of
Registered Securities. The Security Register shall be in written form or any
otier form capable of being converted into written form watiin a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby initially
appointed "Security Registrar" for the purpose of registering Registered
Securities and transfers of Registered Securities on such Security Register as
herein provided. In the event that the Trustee shall cease to be Security
Registrar, it shall have the right to examine the Security Register at all
reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any office
or agency of the Company in a Place of Payment for that series, the Company
shall execute, and the Trustee shall autienticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of the same series, of any autiorized denominations and of a like aggregate
principal amount, bearing a number not contemporaneously outstanding, and
containing identical terms and provisions.
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Subject to the provisions of this Section 305, at the option of the
Holder, Registered Securities of any series may be exchanged for otier
Registered Securities of the same series, of any autiorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Wienever any such Registered
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall autienticate and deliver, the Registered Securities which the
Holder making the exchange is entitled to receive. Unless otherwise specified
wati respect to any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution and (subject
to Section 303) set forti in the applicable Officers' Certificate, or in any
indenture supplemental hereto, delivered as contemplated by Section 301, at the
option of the Holder, Bearer Securities of any series may be exchanged for
Registered Securities of the same series of any autiorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, wati all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount of such missing
coupon or coupons, or the surrender of such missing coupon or coupons may be
waived by the Company and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
any Paying Agent any such missing coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
1002, interest represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located outside the
United States. Notwatistanding the foregoing, in case a Bearer Security of any
series is surrendered at any such office or agency in a permitted exchange for
a Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered watiout the coupon relating
to such Interest Payment Date or proposed date for payment, as the case may be,
and interest or Defaulted Interest, as the case may be, wall not be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
wall not be payable on such Interest Payment Date or proposed date for payment,
as the case may be, in respect of the Registered Security issued in exchange
for such Bearer Security, but wall be payable only to the Holder of such coupon
wien due in accordance wati the provisions of this Indenture. Wienever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall autienticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
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Notwatistanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the depositary for any
permanent global Security is "DTC", then, unless the terms of such global
Security expressly permit such global Security to be exchanged in whole or in
part for definitive Securities, a global Security may be transferred, in whole
but not in part, only to a nominee of DTC, or by a nominee of DTC to DTC, or to
a successor to DTC for such global Security selected or approved by the Company
or to a nominee of such successor to DTC. If at any time DTC notifies the
Company that it is unwalling or unable to continue as depositary for the
applicable global Security or Securities or if at any time DTC ceases to be a
clearing agency registered under the Exchange Act if so required by applicable
law or regulation, the Company shall appoint a successor depositary wati
respect to such global Security or Securities. If (x) a successor depositary
for such global Security or Securities is not appointed by the Company watiin
90 days after the Company receives such notice or becomes aware of such
unwallingness, inability or ineligibility, (y) an Event of Default has occurred
and is continuing and the beneficial owners representing a majority in
principal amount of the applicable series of Securities represented by such
global Security or Securities advise DTC to cease acting as depositary for such
global Security or Securities or (z) the Company, in its sole discretion,
determines at any time that all Outstanding Securities (but not less than all)
of any series issued or issuable in the form of one or more global Securities
shall no longer be represented by such global Security or Securities, then the
Company shall execute, and the Trustee shall autienticate and deliver
definitive Securities of like series, rank, tenor and terms in definitive form
in an aggregate principal amount equal to the principal amount of such global
Security or Securities. If any beneficial owner of an interest in a permanent
global Security is otherwise entitled to exchange such interest for Securities
of such series and of like tenor and principal amount of another autiorized
form and denomination, as specified as contemplated by Section 301 and provided
that any applicable notice provided in the permanent global Security shall have
been given, then watiout unnecessary delay but in any event not later than the
earliest date on which such interest may be so exchanged, the Company shall
execute, and the Trustee shall autienticate and deliver definitive Securities
in aggregate principal amount equal to the principal amount of such beneficial
owner's interest in such permanent global Security. On or after the earliest
date on which such interests may be so exchanged, such permanent global
Security shall be surrendered for exchange by DTC or such other depositary as
shall be specified in the Company Order wati respect thereto to the Trustee, as
the Company's agent for such purpose; provided, however, that no such exchanges
may occur during a period beginning at the opening of business 15 days before
any selection of Securities to be redeemed and ending on the relevant
Redemption Date if the Security for which exchange is requested may be among
those selected for redemption; and provided further that no Bearer Security
delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any location in the United States. If a
Registered Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such
exchange occurs on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and the opening of business at such office or
agency on
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the related proposed date for payment of Defaulted Interest, interest or
Defaulted Interest, as the case may be, wall not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
such Registered Security, but wall 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 permanent global Security is
payable in accordance wati the provisions of tiis Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of tie Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or iis attorney duly autiorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
wati any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
Tie Company, or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Security if such Security may
be among those selected for redemption during a period beginning at the opening
of business 15 days before selection of the Securities to be redeemed under
Section 1103 and ending at the close of business on (A) if such Securities are
issuable only as Registered Securities, the day of tie mailing of the relevant
notice of redemption and (B) if such Securities are issuable as Bearer
Securities, the day of tie first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities
and there is no publication, the mailing of the relevant notice of redemption,
or (ii) to register the transfer of or exchange any Registered Security so
selected for redemption in whole or in part, except, in the case of any
Registered Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a Registered Security
of tiat series and like tenor, provided that such Registered Security shall be
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment
at the option of the Holder, 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 or a Security wati a mutilated coupon appertaining to it is
surrendered to the Trustee or the Company, together wati, in proper cases, such
security or indemnity as may be required by the Company or the Trustee to save
each of them or any agent of
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eatier of them harmless, the Company shall execute and the Trustee shall
autienticate and deliver in exchange therefor a new Security of the same series
and principal amount, containing identical terms and provisions and bearing a
number not contemporaneously outstanding, wati coupons corresponding to the
coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon, and (ii) such security or indemnity as may be required by them to save
each of them and any agent of eatier of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall autienticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (wati all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, wati coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwatistanding the provisions of the previous two paragraphs, in case any
such mutilated, destroyed, lost or stolen Security or coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, wati coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of principal of (and premium or
Make-Whole Amount, if any), any interest on and any Additional Amounts wati
respect to, Bearer Securities shall, except as otherwise provided in Section
1002, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewati.
Every new Security of any series wati its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of tiis Indenture equally and
proportionately wati any and all other Securities of that series and their
coupons, if any, duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies wati respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
Section 307 Payment of Interest; Interest Rights Preserved. Except as
otherwise specified wati respect to a series of Securities in accordance wati
the provisions of Section 301, interest on any Registered Security that is
payable and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose pursuant to Section 1002; provided, however, that each
installment of interest on any Registered Security may at the Company's option
be paid by (i) mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Section 308, to the
address of such Person as it appears on the Security Register or (ii) transfer
to an account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 wati respect to
the Securities of any series, payment of interest may be made, in the case of a
Bearer Security, by transfer to an account maintained by the payee wati a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every permanent
global Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case may be,
wati respect to that portion of such permanent global Security held for its
account by Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next
succeeding Interest Payment Date, such Bearer Security shall be surrendered
watiout the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance wati the provisions of this
Indenture.
Except as otherwise specified wati respect to a series of Securities in
accordance wati the provisions of Section 301, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwati cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been
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such Holder, and such Defaulted Interest may be paid by the Company at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on a
special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Registered
Security of such series and the date of the proposed payment (which shall not
be less than 20 days after such notice is received by the Trustee), and at the
same time the Company shall deposit wati the Trustee an amount of money in the
currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
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
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first- class postage
prepaid, to each Holder of Registered Securities of such series at his address
as it appears in the Security Register not less than 10 days prior to such
Special Record Date. The Trustee may, in its discretion, in the name and at
the expense of the Company, cause a similar notice to be published at least
once in an Autiorized Newspaper in each place of payment, but such publications
shall not be a condition precedent to the establishment of such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names the Registered Securities
of such series (or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2). In case a Bearer Security of any
series is surrendered at the office or agency in a Place of Payment for such
series in exchange for a Registered Security of such series after the close of
business at such office or agency on any Special Record Date and before the
opening of business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be surrendered
watiout the coupon relating to such proposed date of payment and Defaulted
Interest will not be payable on such proposed date of payment in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance wati the
provisions of this Indenture.
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(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not inconsistent
wati the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 308 Persons Deemed Owners. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium or Make-Whole Amount, if any)
and (subject to Sections 305 and 307) interest on, such Registered Security and
for all other purposes whatsoever, whether or not such Registered Security be
overdue, and none of the Company, the Trustee or any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the Holder of any Bearer Security and the Holder of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwatistanding the foregoing, wati respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other autiorization furnished by any depositary, as a Holder, wati respect
to such global Security or impair, as between such depositary and owners of
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
Section 309 Cancellation. All Securities and coupons surrendered for
payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange
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or for credit against any sinking fund payment shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee, and any such
Securities and coupons surrendered directly to the Trustee for any such purpose
shall be promptly cancelled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously autienticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously autienticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be
promptly cancelled by the Trustee. If the Company shall so acquire any of the
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and
until the same are surrendered to the Trustee for cancellation. No Securities
shall be autienticated in lieu of or in exchange for any Securities cancelled
as provided in this Section, except as expressly permitted by this Indenture.
Canceled Securities and coupons held by the Trustee shall be destroyed by the
Trustee and the Trustee shall deliver a certificate of such destruction to the
Company, unless by the Company Order, the Company directs their return to it.
Section 310 Computation of Interest. Except as otherwise specified as
contemplated by Section 301 wati respect to Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 401 Satisfaction and Discharge of Indenture. This Indenture
shall upon Company Request cease to be of further effect wati respect to any
series of Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1012), and the Trustee, upon receipt of a
Company Order, and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when,
(1) eatier
(a) all Securities of such series theretofore autienticated and
delivered and all coupons, if any, appertaining thereto (other than (i) coupons
appertaining to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender is not required or
has been waived as provided in Section 305, (ii) Securities and coupons of such
series which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date, whose
surrender has been waived as provided in Section 1106, and (iv) Securities and
coupons of such series for whose payment money has theretofore
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been deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(b) all Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto 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
watiin one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption watiin one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited wati the Trustee as trust funds in trust
for the purpose an amount in the currency or currencies, currency unit or units
or composite currency or currencies in which the Securities of such series are
payable, sufficient to pay and discharge the entire indebtedness on such
Securities and such coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium or Make-Whole Amount, if any) and
interest, and any Additional Amounts wati respect thereto, to the date of such
deposit (in the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each complying wati Section 102 and stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied wati.
Notwatistanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Autienticating Agent under
Section 611 and, if money shall have been deposited wati and held by the
Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
Section 402 Application of Trust Funds. Subject to the provisions of
the last paragraph of Section 1003, all money deposited wati the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in accordance
wati the provisions of the Securities, the coupons and this Indenture, to the
payment, eatier directly or througi any Paying
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Agent (including the Company acting as its own Paying-Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium or
Make-Whole Amount, if any), and any interest and Additional Amounts for whose
payment such money has deposited wati or received by the Trustee, but such
money need not be segregated from other funds except to the extent required by
law.
ARTICLE V
REMEDIES
Section 501 Events of Default. "Event of Default," wherever used
herein wati respect to any particular series of Securities, means any one of
the following events (whatever the reason for such Event of Default and whether
or not it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon or any Additional Amounts
payable in respect of any Security of that series or of any coupon appertaining
thereto, when such interest, Additional Amounts or coupon becomes due and
payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium or Make-Whole
Amount, if any, on) any Security of that series when it becomes due and payable
at its Maturity; or
(3) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture wati respect to any Security of that series
(other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt wati), and continuance
of such default or breach for a period of 60 days after there has been given,
by registered or certified mail to the Company, by the Trustee or to the
Company, and the Trustee by the Holders of at least 25% in principal amount of
the Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(4) a default under any bond, debenture, note or other evidence of
indebtedness of the Company, or under any mortgage, indenture or other
instrument of the Company (including a default wati respect to Securities of
any series other than that series) under which there may be issued or by which
there may be secured any indebtedness of the Company (or by any Subsidiary, the
repayment of which the Company has guaranteed or for which the Company is
directly responsible or liable as obligor or guarantor on a full recourse
basis) whether such indebtedness now exists or shall hereafter be created,
which default shall constitute a failure to pay an aggregate principal amount
exceeding $10,000,000 of such indebtedness when due and payable after the
expiration of any applicable grace period wati respect thereto and shall have
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resulted in such indebtedness in an aggregate principal amount exceeding
$10,000,000 becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, watiout such indebtedness
having been discharged, or such acceleration having been rescinded or annulled,
watiin a period of 10 days after there shall have been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 10% in principal amount of the Outstanding
Securities of that series a written notice specifying such default and
requiring the Company to cause such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; or
(5) the Company or any Significant Subsidiary pursuant to or watiin the
meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in an
involuntary case,
(c) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(d) makes a general assignment for the benefit of its creditors, or
(6) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(a) is for relief against the Company or any Significant Subsidiary
in an involuntary case,
(b) appoints a Custodian of the Company or any Significant
Subsidiary,
and the order or decree remains unstayed and in effect for 90 days; or
(7) any other Event of Default provided wati respect to Securities of
that series.
As used in this Section 501, the term "Bankruptcy Law" means Title 11,
U.S. Code or any similar Federal or State law for the relief of debtors and the
term "Custodian" means any receiver, trustee, assignee, liquidator or other
similar official under any Bankruptcy Law.
Section 502 Acceleration of Maturity; Rescission and Annulment. If an
event of Default wati respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such
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portion of the principal as may be specified in the terms thereof) and premium
(if any) of all the Securities of that series to be due and payable
immediately, by a notice in writing to the Company, (and to the Trustee if
given by the Holders), and upon any such declaration such principal and premium
(if any) or specified portion thereof shall become immediately due and payable.
At any time after such a declaration of acceleration wati respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited wati the Trustee a sum sufficient
to pay in the currency, currency unit or composite currency in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of such series):
(a) all overdue installments of interest on and any Additional
Amounts payable in respect of all Outstanding Securities of that
series and any related coupons,
(b) the principal of (and premium or Make-Whole Amount, if any, on)
any Outstanding Securities of that series which have become due
otherwise than by such declaration of acceleration and interest
thereon at the rate or rates borne by or provided for in such
Securities,
(c) to the extent that payment of such interest is lawful, interest
upon overdue installments of interest and any Additional Amounts
at the rate or rates borne by or provided for in such
Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel; and
(2) all Events of Default wati respect to Securities of that series,
other than the nonpayment of the principal of (or premium or Make- Whole
Amount, if any) or interest on Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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Section 503 Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of interest or
Additional Amounts, if any, on any Security of any series and any related
coupon when such interest or Additional Amount becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of any series at its Maturity, then
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium or Make-Whole Amount, if any) and interest and Additional Amount, wati
interest upon any overdue principal (and premium or Make-Whole Amount, if any)
and, to the extent that payment of such interest shall be legally enforceable,
upon any overdue installments of interest or Additional Amounts, if any, at the
rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwati upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company, or any other obligor upon such Securities of such series
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities of such series, wherever situated.
If an Event of Default wati 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 and any
related coupons 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 in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
Section 504 Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities of any 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 Company for the payment
of overdue principal, premium or Make-Whole Amount, if any, or interest) shall
be entitled and empowered, by intervention in such proceeding or otherwise:
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(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series, of
principal (and premium or Make-Whole Amount, if any) and interest and
Additional Amounts, if any, 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 and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons 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, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
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 or coupon any plan of reorganization; arrangement, adjustment or
composition affecting the Securities or coupons 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 or coupon in any such proceeding.
Section 505 Trustee May Enforce Claims Watiout Possession of Securities
or Coupons. All rights of action and claims under this Indenture or any of the
Securities or coupons may be prosecuted and enforced by the Trustee watiout the
possession of any of the Securities or coupons 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 of judgment shall after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons 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 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 premium or Make-Whole Amount, if any) or
interest and any Additional Amounts, upon presentation of the Securities or
coupons, or both, as the case may be, and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor
Trustee under Section 606;
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SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium or Make-Whole Amount, if any)
and interest and any Additional Amounts payable, in respect of which or for the
benefit of which such money has been collected, ratably, watiout preference or
priority of any kind, according to the aggregate amounts due and payable on
such Securities and coupons for principal (and premium or Make-Whole Amount, if
any), interest and Additional Amounts, respectively; and
THIRD: To the payment of the remainder, if any, to the Company.
Section 507 Limitation on Suits. No Holder of any Security of any
series or any related coupon shall have any right to institute any proceeding,
judicial or otherwise, wati respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Xxxxxx has previously given written notice to the Trustee of a
continuing Event of Default wati respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance wati 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 wati such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of that series; it being understood and
intended that no one or more of such Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other of such
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,
Premium or Make-Whole Amount, if any, Interest and Additional Amounts.
Notwatistanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right which is absolute and unconditional to
receive payment of the principal of (and premium or Make-Whole Amount, if any)
and (subject to Sections 305 and 307) interest on, and any Additional Amounts
in respect of, such Security or payment of such coupon on the respective due
dates expressed in such Security or coupon (or, in the case of redemption,
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on the Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired watiout the consent of such
Holder.
Section 509 Restoration of Rights and Remedies. If the Trustee or any
Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, the Company, the Trustee and the
Holders of Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as tiough no such proceeding had been instituted.
Section 510 Rights and Remedies Cumulative. Except as otherwise
provided wati respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders of Securities or coupons is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 511 Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities or coupons, as tie
case may be.
Section 512 Control by Holders of Securities. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, metiod and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee wati respect to the Securities of such series,
provided that
(1) such direction shall not be in conflict wati any rule of law or wati
this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent wati such direction, and
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(3) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudical to the Holders of Securities of such
series not joining therein.
Section 513 Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder wati respect to such series and its
consequences, except a default
(4) in the payment of the principal of (or premium, if any) or interest
on or Additional Amounts payable in respect of any Security of such series or
any related coupons, or
(5) in respect of a covenant or provision hereof which under Article IX
cannot be modified or amended watiout 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 Event of Default or impair any right consequent thereon.
Section 514 Waiver of Usury, Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as tiough no such law had been enacted.
Section 515 Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for 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, against any party litigant in such
suit having due regard to the merits and good faati of the claims or defenses
made by such party litigant; but the provisions of this Section shall not apply
to any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount of
the Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium or Make-Whole
Amount, if any) or interest on any Security on or after the respective Stated
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Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
ARTICLE VI
THE TRUSTEE
Section 601 Notice of Defaults. Watiin 90 days after the occurrence of
any default hereunder wati respect to the Securities of any series, the Trustee
shall transmit in the manner and to the extent provided in TIA Section 313(c),
notice of such default hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case of
a default in the payment of the principal of (or premium or Make-Whole Amount,
if any) or interest on or any Additional Amounts wati respect to any Security
of such series, or in the payment of any sinking fund installment wati respect
to the Securities of such series, the Trustee shall be protected in watiholding
such notice if and so long as Responsible Officers of the Trustee in good faati
determine that the watiholding of such notice is in the interests of the
Holders of the Securities and coupons of such series; and provided further that
in the case of any default or breach of the character specified in Section
501(3) wati respect to the Securities and coupons of such series, no such
notice to Holders shall be given until at least 60 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 wati respect to the Securities of such series.
Section 602 Certain Rights of Trustee. Subject to the provisions of
TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be 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 to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any 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
be herein specifically prescribed) may, in the absence of bad faati on its
part, rely upon an Officers' Certificate;
(4) the Trustee may consult wati counsel 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 faati and in reliance thereon;
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(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Securities of any series or any related coupons pursuant
to this Indenture, unless such Holders shall have offered to the Trustee
security or indemnity reasonably satisfactory to the Trustee against the costs,
expenses and liabilities which might be incurred by it in compliance wati such
request or direction;
(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,
note, coupon or other paper or documents, but the Trustee, in its 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 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 books, records and premises of the Company personally or
by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder eatier directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed xxxx due care by it
hereunder; and
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faati and reasonably believed by it to be authorized or
watiin the discretion or rights or powers conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forti in this
Indenture, and no implied covenants or obligations shall be read into this
indenture against the Trustee.
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, and in any coupons shall be taken as the
statements of the Company and neatier 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 or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neatier the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
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Section 604 May Hold Securities. The Trustee, any Paying Agent,
Security Registrar, Authenticating Agent or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to TIA Sections 310(b) and 311, may
otherwise deal wati the Company wati the same rights it would have if it were
not the Trustee, Paying Agent, Security Registrar, Authenticating Agent or such
other agent.
Section 605 Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed wati the Company.
Section 606 Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it 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 each of
the Trustee and any predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance wati any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faati; and
(3) to indemnify each of the Trustee and any predecessor of Trustee for,
and to hold it harmless against any loss, liability or expense incurred watiout
negligence or bad faati on its own part, arising out of or in connection wati
the acceptance or administration of the trust or trusts hereunder, including
the costs and expenses of defending itself against any claim or liability in
connection wati the exercise or performance of any of its powers or duties
hereunder.
When the Trustee incurs expenses or renders services in connection wati an
Event of Default specified in Section 501(5) or Section 501(6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities 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, if any) or interest on
particular Securities or any coupons.
The provisions of this Section shall survive the termination of this
Indenture.
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Section 607 Corporate Trustee Required; Eligibility; Conflicting
Interests. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(I) and shall have a
combined capital and surplus of at least $50,000.000. If such corporation
publishes reports of condition at least annually, pursuant to law or the
requirements of any Federal, State, Territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forti in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance wati the provisions of this Section, it shall resign immediately
in the manner and wati the effect hereinafter specified in this Article.
Section 608 Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and a appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance wati the applicable
requirements of Section 609.
(b) The Trustee may resign at any time xxxx respect to the
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee watiin 30 days after giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time wati respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee
and the Company.
(d) If at any time:
(i) the Trustee shall faal to comply wati the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months, or
(ii) the Trustee shall cease to be eligible under Section 607
and shall faal to resign after written request therefor by the Company or
by any Holder of a Security who has been a bona fide Holder of a Security
for at least six months, or
(iii) the Trustee shall become incapable of acting or shall
be adjudged a bankruptcy or insolvent or a receiver of the Trustee of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affaars for the purpose of
rehabilitation, conservation of liquidation, then, in any such case, (i)
the Company by or pursuant to a Board Resolution may remove the Trustee
and appoint a successor Trustee wati respect to all Securities, or (ii)
subject to TIA Section 315(e), any Holder of a Security who has been a
bona fide Holder of a Security for at least six months may, on behalf of
himself and all
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others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee wati respect to all Securities and the
appointment of a successor Trustee or Trustees.
(e) 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 wati
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees wati
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed wati respect to the Securities of one
or more or all of such series and that at any time there shall be only one
Trustee wati respect to the Securities of any particular series). If, watiin
one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee wati respect to the Securities of any series
shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, fortiwati upon its
acceptance or such appointment, become the successor Trustee wati respect to
the Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee wati respect to the
Securities of any series shall have been so appointed by the Company or the
Holders of Securities and accepted appointment in the manner hereinafter
provided, 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 himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee wati respect to Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee wati respect to the Securities of any series and each
appointment of a successor Trustee wati respect to the Securities of any series
in the manner provided for notices to the Holders of Securities in Section 106.
Each notice shall include the name of the successor Trustee wati respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 609 Acceptance of Appointment by Successor. (a) In case of
the appointment hereunder of a successor Trustee wati respect to all
Securities, every such successor Trustee shall execute, acknowledge and deliver
to the Company 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, watiout any further act,
deed or conveyance, shall become vested wati all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its claim, if any, provided for in
Section 606.
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(b) In case of the appointment hereunder of a successor Trustee wati
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee wati respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto,
pursuant to Article IX hereof, wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee wati 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 wati
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 wati 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 notiing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each suci
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, watiout any further act, deed or
conveyance, shall become vested wati all the rights, powers, trusts and duties
of the retiring Trustee wati respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but on, request of
the Company, or any successor Trustee , such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder xxxx respect to the Securities of that
or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee 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
wati 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 such corporation shall be otherwise qualified and eligible under this
Article, watiout the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall
have been authenticated,
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but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities of coupons so authenticated wati the
same effect as if such successor Trustee had itself authenticated such
Securities or coupons. In case any Securities or coupons shall not have been
authenticated by such predecessor Trustee, any such successor Trustee may
authenticate and deliver such Securities or coupons, in eatier its own name or
that of its predecessor Trustee, wati the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee.
Section 611 Appointment of Authenticating Agent. At any time when any
of the Securities remain Outstanding, the Trustee may appoint an Authenticating
Agent or Agents wati respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption or
repayment thereof, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to the Company.
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 Company and shall at all times
be a bank or trust company or corporation organized and doing business and in
good standing under the laws of the United States of America or of any State or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forti in its most recent report of condition so published. In case at any
time an Authenticating Agent shall cease to be eligible in accordance wati the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and wati the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or wati 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 the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, watiout the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company.
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The Trustee for any series of Securities may at any time terminate the agency
of an Authenticating Agent by giving written notice of termination to such
Authenticating Agent and the Company. 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 wati the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series wati
respect to which such Authenticating Agent will serve in the manner set forti
in Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested wati all the rights, powers and
duties of its predecessor hereunder, wati like effect as if originally named as
an Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation including reimbursement of its reasonable expenses for
its services under this Section.
If an appointment wati respect to one or more series is made 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 substantially in the following form:
This is one of the Securities of the series designated therein referred
to in the watiin-mentioned Indenture.
[BANK], as Trustee
By:
as Authenticating Agent
By:
Authorized Signatory
ARTICLE VII
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701 Disclosure of Names and Addresses of Holders. Every Holder
of Securities or coupons, by receiving and holding the same, agrees wati the
Company and the Trustee that neatier the Company nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities
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in accordance xxxx XXX Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section
312(b).
Section 702 Reports by Trustee. Watiin 60 days after October 1 of each
year commencing wati the fist October 1 after the first issuance of Securities
pursuant to this Indenture, the Trustee shall transmit by mail to all Holders
of Securities as provided in TIA Section 313(c) a brief report dated as of such
October 1 if required by TIA Section 313(a).
Section 703 Reports by Company. The Company will:
(1) file wati the Trustee, watiin 15 days after the Company is required
to file the same wati the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file wati the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or the Company is
not required to file information, documents or reports pursuant to eatier of
such Sections, then it will file wati the Trustee and the Commission, in
accordance wati rules and regulations prescribed form time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations;
(2) file wati the Trustee and the Commission, in accordance wati rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports wati respect to compliance by the Company
wati the conditions and covenants of this Indenture as may be required from
time to time by such rules and regulations; and
(3) transmit by mail to the Holders of Securities, watiin 30 days after
the filing thereof wati the Trustee, in the manner and to the extent provided
in TIA Section 313(c), such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations prescribed from time to
time by the Commission.
Section 704 The Company to Furnisi Trustee Names and Addresses of
Holders. The Company will furnisi or cause to be furnisied to the Trustee:
(a) semi-annually, not later than 15 days after the Regular Record
Date for interest for each series of Securities, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date, or if
there is no Regular Record Date for interest for such series of Securities,
semi-annually, upon such dates as are set froth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
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(b) at such otier times as the Trustee may request in writing,
watiin 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnisied; provided, however, that, so long as the Trustee is the
Security Registrar, no such list shall be required to be furnisied.
ARTICLE VIII
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
Section 801 Consolidation and Mergers of Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions. The Company may
consolidate wati, or sell, lease or convey all or substantially all of its
assets to, or merge wati or into any other entity, provided that in any such
case, (1) eatier the Company shall be the continuing entity, or the successor
entity shall be an entity organized and existing under the laws of the United
States or a State thereof and such successor entity shall expressly assume the
due and punctual payment of the principal of (and premium or Make-Whole Amount,
if any) and any interest (including all Additional Amounts, if any, payable
pursuant to Section 1012) on all of the Securities, according to their tenor,
and the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Company by supplemental
indenture, complying wati Article IX hereof, satisfactory to the Trustee,
executed and delivered to the Trustee by such entity and (2) immediately after
giving effect to such transaction and treating any indebtedness which becomes
an obligation of the Company or any Subsidiary as a result thereof as having
been incurred by the Company or such Subsidiary at the time or such
transaction, no Event of Default, and no event which, after notice or the lapse
of time, or both, would become an Event of Default, shall have occurred and be
continuing.
Section 802 Rights and Duties of Successor Entity. In case of any such
consolidation, merger, sale, lease or conveyance and upon any such assumption
by the successor entity, such successor entity shall succeed to and be
substituted for the Company, wati the same effect as if it had been named
herein as the party of the first part, and the predecessor entity, except in
the event of a lease, shall be relieved of any further obligation under this
Indenture and the Securities. Such successor entity thereupon may cause to be
signed, and may issue eatier in its own name or in the name of the Company, any
or all of the Securities issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee; and, upon the order of
such successor entity, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor entity thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance wati the terms of this Indenture as though all of such Securities
had been issued at the date of the execution hereof.
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In case of any such consolidation, merger, sale, lease or conveyance, such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
Section 803 Officers' Certificate and Opinion of Counsel. Any
consolidation, merger, sale, lease or conveyance permitted under Section 801 is
also subject to the condition that the Trustee receive an Officers' Certificate
and an Opinion of Counsel, each complying wati Section 102 and stating that any
such consolidation, merger, sale, lease or conveyance, and the assumption by
any successor entity, complies wati the provisions of this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied wati.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 901 Supplemental Indentures Watiout Consent of Holders.
Watiout the consent of any Holders of Securities or coupons, the Company, 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, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Securities contained; or
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such series) or to surrender
any right or powers herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default are
to be for the benefit of less than all series of Securities, stating that such
Events of Default are expressly being included solely for the benefit of such
series); provided, however, that in respect of any such additional Events of
Default such supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee upon such
default or may limit the right of the Holders of a majority in aggregate
principal amount of that or those series of Securities to which such additional
Events of Default apply to waive such default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change or
eliminate any
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restrictions on the payment of principal of or any premium or interest on
Bearer Securities, to permit Bearer Securities to be issued in exchange for
Registered Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit or facilitate
the issuance of Securities in uncertificated form, provided that any such
action shall not adversely affect the interests of the Holders of Securities of
any series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions or this Indenture,
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution
of such supplemental indenture which is entitled to the benefit of such
provision; or
(6) to secure the Securities; or
(7) to establisi the form or terms of Securities of any series and any
related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder
by a successor Xxxxxxx xxxx 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; or
(9) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent wati any other provision herein, or to
make any other provisions wati respect to matters or questions arising under
this Indenture which shall not be inconsistent wati the provisions of this
Indenture, provided such provisions shall not adversely affect the interests of
the Holders of Securities of any series or any related coupons in any material
respect; or
(10) to supplement any of the provisions of this Indenture to such extent
as shall be necessary to permit or facilitate the defeasance and discharge of
any series of Securities pursuant to Section 401, 1302 and 1303; provided that
any such action shall not adversely affect the interests of the Holders of
Securities of such series and any related coupons or any other series of
Securities in any material respect.
Section 902 Supplemental Indentures wati Consent of Holders. Wati the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, 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 modifying in any manner the right of the Holders of
Securities and any related coupons under this Indenture; provided, however,
that no such supplemental indenture shall, watiout the consent of the Holder of
each Outstanding Security affected thereby:
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(1) change the Stated Maturity of the principal of (or premium or
Make-Whole Amount, if any, on) or any installment of principal of or interest
on, and Security; or reduce the principal amount thereof or the rate or amount
of interest thereon or any Additional Amounts payable in respect thereof, or
any premium payable upon the redemption thereof, or change any obligation of
the Company to pay Additional Amounts pursuant to Section 1012 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or reduce the
amount of the principal of an Original Issue Discount Security or Make-Whole
Amount that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502 or the amount thereof provable in
bankruptcy pursuant to Section 504, or adversely affect any right of repayment
at the option of the Holder of any Security, or change any Place of Payment
where, or the currency or currencies, currency unit or units or composite
currency or currencies in which any Security or any premium or Make-Whole
Amount or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption or repayment at the option of the
Holder, on or after the Redemption Date or the Repayment Date, as the case may
be), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver wati respect to such series (or compliance wati certain provisions of
this Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or reduce the requirements of Section 1504 for quorum or
voting, or
(3) modify any of the provisions of this Section, Section 513 or Section
1013, except to increase the required percentage to effect such action or to
provide that certain other provisions of this Indenture cannot be modified or
waived watiout the consent of the Holder of each Outstanding Security affected
thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series wati 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.
Section 903 Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modification thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel complying wati Section 102 and
stating that the execution of such supplemental indenture is
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authorized or permitted by this Indenture. 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 or Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewati, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
Section 905 Conformity wati Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements
of the Trust Indenture Act as then in effect.
Section 906 Reference in Securities to Supplemental Indentures.
Securities of any 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 in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Section 907 Notice of Supplemental Indentures. Promptly after the
execution by the Company and the Trustee of any supplemental indenture pursuant
to the provisions of Section 902, the Company shall give notice thereof to the
Holders of each Outstanding Security affected, in the manner provided for in
Section 106, setting forti in general terms the substance of such supplemental
indenture.
ARTICLE X
COVENANTS
Section 1001 Payment of Principal, Premium or Make-Whole Amount, if any,
Interest and Additional Amounts. The Company covenants and agrees for the
benefit of the Holders of each series of Securities that it will duly and
punctually pay the principal of (and premium or Make-Whole Amount, if any) and
interest on and any Additional Amounts payable in respect of the Securities of
that series in accordance wati the terms of such series of Securities, any
coupons appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 301 wati respect to any series of Securities, any
interest due on and any Additional Amounts payable in respect of Bearer
Securities on or before Maturity, other than Additional Amounts, if any,
payable as provided in Section 1012 in respect of principal of (or premium or
Make-Whole Amount, if any, on) such a Security, shall be payable only upon
presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. Unless
otherwise specified wati respect to Securities of any series pursuant to
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Section 301, at the option of the Company, all payments of principal may be
paid by check to the registered Holder of the Registered Security or other
person entitled thereto against surrender of such Security.
Section 1002 Maintenance of Office or Agency. If Securities of a series
are issuable only as Registered Securities, the Company shall maintain in each
Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment or
conversion, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain : (A) in the Borough of Manhattan, The City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment or conversion, where any Registered Securities of that
series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange, where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served and where Bearer Securities of that series and related coupons
may be presented or surrendered for payment or conversion in the circumstances
described in the following paragraph (and not otherwise); (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where
Securities or that series and related coupons may be presented and surrendered
for payment (including payment of any Additional Amounts payable on Securities
of that series pursuant to Section 1012) or conversion; provided, however, that
if the Securities of that series are listed on the Luxembourg Stock Exchange or
any other stock exchange located outside the United States and such stock
exchanges shall so require, the Company will maintain a Paying Agent for the
Securities of that series in Luxembourg or any other required city located
outside the United States, as the case may be, so long as the Securities of
that series are listed on such exchange; and (C) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series located
outside the United States an office or agency where any Registered Securities
of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of each such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnisi the Trustee wati the address
thereof, such presentations, surrenders, notices and demand may be made or
served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of that series and the related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts payable on
Bearer Securities of that series pursuant to Section 1012) or conversion at
the offices specified in the Security, in London, England, and the Company
hereby appoint the same as its agent to receive such respective presentations,
surrenders, notices and demands, and the Company hereby appoint the Trustee its
agent to receive all such presentations, surrenders, notices and demands.
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Unless otherwise specified wati respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Securities shall be made at any office or agency
of the Company in the United States or by check mailed to any address in the
United States or by transfer to an account maintained wati a bank located in
the United States; provided, however, that, if the Securities of a series are
payable in Dollars, payment of principal of and any premium and interest on any
Bearer Security (including any Additional Amounts payable on Securities of such
series pursuant to Section 1012) shall be made at the office of the Company's
Paying Agent in the Borough of Manhattan, The City of New York, if (but only
if) payment in Dollars of the full amount of such principal, premium, or Make-
Whole Amount, interest or Additional Accounts, as the case may be, at all
offices or agencies outside the United State maintained for the purpose by the
Company in accordance wati this Indenture, is illegal or effectively precluded
by exchange controls or other similar restrictions.
The Company may 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 of 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 Company of its obligation to maintain an office
or agency in accordance wati the requirements set forti above for Securities of
any series for such purposes. The Company will 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 specified wati
respect to any Securities pursuant to Section 301 wati respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the office or agency of the Company in the Borough of Manhattan,
The City of New York, and initially appoints the Trustee at its Corporate Trust
Office as Paying Agent in such city and as its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified wati respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of the Indenture, then the Company
will maintain wati respect to each such series of Securities, or as so
required, at least one exchange rate agent.
Section 1003 Money for Securities Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent wati respect to any
series of any Securities and any related coupons, it wall, on or before each
due date of the principal of (and premium or Make- Whole Amount, if any), or
interest on or Additional Amounts in respect of, any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the principal (and premium or
Make-Whole Amount, if any) or interest or Additional Amounts so becoming due
until such sums shall be paid to such Persons or
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otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities and any related coupons, it wall, on or before each due date of
the principal of (and premium or Make-Whole Amount, if any), or interest on or
Additional Amounts in respect of, any Securities of that series, deposit wati a
Paying Agent a sum (in the currency or currencies, currency unit or units or
composite currency or currencies described in the preceding paragraph)
sufficient to pay the principal (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts, so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest
or Additional Amounts and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its section or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
wati the Trustee, subject to the provisions of this Section, that such Paying
Agent wall
(1) hold all sums held by it for the payment of principal of (and premium
or Make-Whole Amount, if any) or interest on Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to suci
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in making of any such payment of principal (and
premium or Make-Whole Amount, if any) or interest; and
(3) at any time during the continuance of any such default upon the
written request of the Trustee, fortiwati pay to the Trustee all sums so held
in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all furtier liability wati respect to such
sums.
Except as otherwise provided in the Securities of any series, any money
deposited wati the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium of Make-Whole Amount, if
any) or interest on, or any Additional Amounts in respect of, any Security of
any series and remaining unclaimed for two years after such principal (and
premium or Make-Whole Amount, if any), interest or Additional Amounts has
become due and payable shall be paid to the Company upon Company Request or (if
then held by the Company) shall be discharged
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from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment of suci
principal of (and premium or Make-Whole Amount, if any) or interest on, or any
Additional Amounts in respect of, any Security, watiout interest thereon, and
all liability of the Trust or such Paying Agent wati respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of suci
money then remaining will be repaid to the Company.
Section 1004 [Omitted].
Section 1005 [Omitted].
Section 1006 Existence. Subject to Article VIII, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights and franchises; provided, however, that the
Company shall not be required to preserve any right or franchise if the Board
of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 1007 Maintenance of Properties. The Company will cause all of
its properties used or useful in the conduct of its business or the business of
any Subsidiary to be maintained and kept in good condition, repair and working
order and supplied wati all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewati may be promptly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Company or any Subsidiary from selling or otherwise disposing for
value its properties in the ordinary course of its business.
Section 1008 Insurance. The Company will, and will cause each of its
Subsidiaries to, keep all of its insurable properties insured against loss or
damage at least equal to their then full insurable value wati financially sound
and reputable insurers.
Section 1009 Payment of Taxes and Otier Claims. The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon it or any Subsidiary or upon the income, profits or property of
the Company or any Subsidiary, and (2) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a lien upon the property of
the Company or any Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or
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discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faati by appropriate
proceedings.
Section 1010 Provision of Financial Information. Whetier or not the
Company is subject to Section 13 or 15(d) of the Exchange Act, the Company
will, to the extent permitted under the Exchange Act, file wati the Commission
the annual reports, quarterly reports and other documents which the Company
would have been required to file wati the Commission pursuant to such Section
13 or 15(d) (the "Financial Statements") if the Company were so subject, suci
documents to be filed wati the Commission on or prior to the respective dates
(the "Required Filing Dates") by which the Company would have been required so
to file such documents if the Company were so subject.
The Company will also in any event (x) watiin 15 days of each Required
Filing Date (i) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, watiout cost to such Holders copies of the
annual reports and quarterly reports which the Company would have been required
to file wati the Commission pursuant to Section 13 or 15(d) of the Exchange Act
if the Company were subject to such Sections, and (ii) file wati the Trustee
copies of the annual reports, quarterly reports and other documents which the
Company would have been required to file wati the Commission pursuant to
Section 13 or 15(d) of the Exchange Act if the Company were subject to such
Sections and (y) if filing such documents by the Company witi the Commission is
not permitted under the Exchange Act, promptly upon written request and payment
of the reasonable cost of duplication and delivery, supply copies of suci
documents to any prospective Holder.
Section 1011 Statement as to Compliance. The Company will deliver to
the Trustee, watiin 120 days after the end of each fiscal year, a brief
certificate from the principal executive officer, principal financial officer
or principal accounting officer as to his or ier knowledge of the Company's
compliance wati all conditions and covenants under this Indenture and, in the
event of any noncompliance, specifying such noncompliance and the nature and
status thereof. For purposes of this Section 1011, suci compliance shall be
determined watiout regard to any period of grace or requirement of notice under
this Indenture.
Section 1012 Additional Amounts. If any Securities of a series provide
for the payment of Additional Amounts, the Company will pay to the Holder of
any Security of such series or any coupon appertaining thereto Additional
Amounts as may be specified as contemplated by Section 301. Whenever in this
Indenture there is mentioned, in any context except in the case of Section
502(1), the payment of the principal of or any premium or interest on, or in
respect of, any Security of any series or payment of any related coupon or the
net proceeds received on the sale or exchange 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 suci series established pursuant to Section
301 to the extent that, in suci context, Additional Amounts are, were or would
be payable in respect thereof pursuant to such terms and express mention of the
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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 specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at last
10 days prior to the first Interest Payment Date wati respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change wati respect to the matters
set forti in the below- mentioned Officers' Certificate, the Company will
furnish the Trustee and the Company's principal Paying Agent or Paying Agents,
if other than the Trustee, wati an Officers' Certificate instructing the
Trustee and such Paying Agent or Paying Agents whether such payment of
principal of and any premium or interest on the Securities of that series shall
be made to Holders of Securities of that series or any related coupons who are
not United States persons watiout watiholding for or on account of any tax,
assessment or other governmental charge described in the Securities of the
series. If any such watiholding shall be required, then suci Officers'
Certificate shall specify by country the amount, if any, required to be
watiheld on such payments to such Holders of Securities of that series or
related coupons and the Company will pay to the Trustee or such Paying Agent
the Additional Amounts required by the terms of such Securities. If the
Trustee or any Paying Agent, as the case may be, shall not so receive the
above-mentioned certificate, then the Trustee or such Paying Agent shall be
entitled (i) to assume that no such watiholding or deduction is required wati
respect to any payment of principal or interest wati respect to any Securities
of a series or related coupons until it shall have received a certificate
advising otherwise and (ii) to make all payments of principal and interest wati
respect to the Securities of a series or related coupons watiout watiholding or
deductions until otherwise advised. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred watiout negligence or bad faati on
their part arising out of or in connection wati actions taken or omitted by any
them or in reliance on any Officers' Certificate furnished pursuant to this
Section or in reliance on the Company's not furnishing such an Officers'
Certificate.
Section 1013 Waiver of Certain Covenants. The Company may omit in any
particular instance to comply witi any term, provision or condition set forti
in Sections 1004 to 1010, inclusive, if before or after the time for suci
compliance the Holders of at least a majority in principal amount of all
outstanding Securities of such series, by Act of such Holders, eatier waive
such compliance in suci instance or generally waive compliance wati suci
covenant or condition, but no such waiver shall extend to or affect suci
covenant or condition except to the extent so expressly waived, and, until suci
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or conditional shall remain
in full force and effect.
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ARTICLE XI
REDEMPTION OF SECURITIES
Section 1101 Applicability of Article. Securities of any series which
are redeemable before their Stated Maturity shall be redeemable in accordance
wati their terms and (except as otherwise specified as contemplated by Section
301 for Securities of any series) in accordance wati this Article.
Section 1102 Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Company of less
than all of the Securities of any series, the Company shall, at least 45 days
prior to the giving of the notice of redemption in Section 1104 (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series
to be redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee wati an Officers' Certificate evidencing compliance wati suci
restriction.
Section 1103 Selection by Trustee of Securities to Be Redeemed. If less
than all the Securities of any series issued on the same day wati the same
terms are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series issued on such date wati the
same terms not previously called for redemption, by such metiod as the Trustee
shall deem faar and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum autiorized denomination for
Securities of that series or any integral multiple tiereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
autiorized denomination for Securities of that series.
The Trustee shall promptly notify the Company 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 tiereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security which has been or is to be redeemed.
Section 1104 Notice of Redemption. Notice of redemption shall be given
in the manner provided in Section 106, not less than 30 days nor more than 60
days prior to the Redemption Date, unless a shorter period is specified by the
terms of such series established pursuant to Section 301 to each Holder of
Securities to be redeemed, but faalure to give such notice in the manner ierein
provided to the Holder of any Security designated for redemption as a whole or
in part, or any defect in the notice to any such
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Holder, shall not affect the validity of the proceedings for the redemption of
any otier such Security or portion tiereof.
Any notice that is mailed to the Holders of Registered Securities in the
manner ierein provided shall be conclusively presumed to have been duly given
whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption date,
(2) the Redemption Price, accrued interest to the Redemption Date payable
as provided in Section 1106, if any, and Additional Amounts, if any,
(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) in case any Security is to be redeemed in part only, the notice which
relates to such Security shall state that on and after the Redemption Date,
upon surrender of such Security, the holder will receive, watiout a charge, a
new Security or Securities of autiorized denominations for the principal amount
thereof remaining unredeemed,
(5) that on the Redemption Date tie Redemption Price and accrued interest
to the Redemption Date payable as provided in Section 1106, if any, will become
due and payable upon each such Security, or the portion tiereof, to be redeemed
and, if applicable, that interest tiereon shall cease to accrue on and after
said date.
(6) the Place or Places of Payment where such Securities, together in the
case of Bearer Securities wati all coupons appertaining tiereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any, or for conversion.
(7) that, unless otherwise specified in such notice, Bearer Securities of
any series, if any, surrendered for redemption must be accompanied by all
coupons maturing subsequent to the date fixed for redemption or the amount of
any such missing coupon or coupons will be deducted from the Redemption Price,
unless security or indemnity satisfactory to the Company and the Trustee for
such series and any Paying Agent is furnished.
(8) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on tiis Redemption Date pursuant to Section 305 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made.
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(9) the CUSIP number of such Security, if any, and
(10) if applicable, that a Holder of Securities who desires to convert
Securities for redemption must satisfy the requirements for conversion
contained in such Securities, the then existing conversion price or rate, and
the date and time when the option to convert shall expire.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
Section 1105 Deposit of Redemption Price. At least one Business Day
prior to any Redemption Date tie Company shall deposit wati the Trustee or wati
a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money in the
currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
sufficient to pay on the Redemption Date tie Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Securities or portions thereof which are to be redeemed on that date.
Section 1106 Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) (together wati accrued interest, if any, to the
Redemption Date), and from and after such date (unless tie Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender
of any such Security for redemption in accordance wati said notice, together
wati all coupons, if any, appertaining tiereto maturing after the Redemption
Date, such Security shall be paid by the Company at the Redemption Price,
together wati accrued interest, if any, to the Redemption Date; provided,
however, that installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of coupons for such interest;
and provided further that, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
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If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security
may be paid after deducting from the Redemption Price an amount equal to the
face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If tiereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium or Make-Whole Amount, if
any) shall, until paid, bear interest from the Redemption Date at the rate
borne by the Security.
Section 1107 Securities Redeemed in Part. Any Registered Security which
is to be redeemed only in part (pursuant to the provisions of this Article)
shall be surrendered at a Place of Payment tierefor (wati, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing) and tie Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security watiout service charge a new Security or Securities of the same
series, 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.
ARTICLE XII
[INTENTIONALLY OMITTED]
ARTICLE XIII
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301 Applicability of Article. Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance wati the terms of such Securities, if any, and (except as
otherwise specified by the terms of such series established pursuant to Section
301) in accordance wati this Article.
Section 1302 Repayment of Securities. Securities of any series subject
to repayment in whole or in part at the option of the Holders thereof will,
unless otherwise
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provided in the terms of such Securities, be repaid at a price equal to the
principal amount thereof, together wati interest, if any, thereon accrued to
the Repayment Date specified in or pursuant to the terms of such Securities.
The Companies covenants that at least one Business Day prior to the Repayment
Date it will deposit witi the Trustee or wati a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of such series) sufficient to pay the
principal (or, if so provided by the terms of the Securities of any series, a
percentage of the principal) of, and (except if the Repayment Date shall be an
Interest Payment Date) accrued interest on, all the Securities or portions
thereof, as the cash may be, to be repaid on such date.
Section 1303 Exercise of Option. Securities of any series subject to
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. In order for any Security
to be repaid at the option of the Holder, the Trustee must receive at the Place
of Payment tieretofore specified in the terms of such Security (or at such
other place or places of which the Company shall from time to time notify the
Holders of such Securities) not earlier than 60 days nor later than 30 days
prior to the Repayment Date (1) the Security so providing for such repayment
together wati the "Option to Elect Repayment" form on the reverse thereof duly
completed by the Holder (or by the Holder's attorney duly authorized in
writing) or (2) a telegram, telex, facsimile transmission or a letter from a
member of a national securities exchange, or the National Association of
Securities Dealers, Inc. ("NASD"), or a commercial bank or trust company in the
United States setting forti the name of the Holder of the Security, the
principal amount of the Security, the principal amount of the Security to be
repaid, the CUSIP number, if any, or a description of the tenor and terms of
the Security, a statement that the option to elect repayment is being exercised
thereby and a guarantee that the Security to be repaid, together wati the duly
completed form entitled "Option to Elect Repayment" on the reverse of the
Security, will be received by the Trustee not later than the fifti Business Day
after the date of such telegram, telex, facsimile transmission or letter;
provided, however, that such telegram, telex, facsimile transmission or letter
shall only be effective if such Security and form duly completed are received
by the Trustee by such fifti Business Day. If less than the entire principal
amount of such Security is to be repaid in accordance wati the terms of such
Security, the principal amount of such Security to be repaid, in increments of
the minimum denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be
provided by the terms of any Security providing for repayment at the option of
the Holder thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company.
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Section 1304 When Securities Presented for Repayment Become Due and
Payable. If Securities of any series provide repayment at the option of the
Holders thereof shall have been surrendered as provided in this Article and as
provided by or pursuant to the terms of such Securities, such Securities or the
portion thereof, as the case may be, to be repaid shall become due and payable
and shall be paid by the Company on the Repayment Date therein specified, and
on and after such Repayment Date (unless the Company shall default in the
payment of such Securities on such Repayment Date) such Securities shall, if
the same were interest-bearing, cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be repaid, except to the
extent provided below, shall be void. Upon surrender of any such Security for
repayment in accordance wati such provisions, together wati coupons, if any,
appertaining tiereto maturing after the Repayment Date, the principal amount of
such Security so to be repaid shall be paid by the Company, together wati
accrued interest, if any, on the Repayment Date; provided, however, that
coupons whose Stated Maturity is on or prior to the Repayment Date shall be
payable at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified pursuant to
Section 301, only upon presentation and surrender of such coupons, and provided
furtier that, in the case of Registered Securities, installments of interest,
if any, whose Stated Maturity is on or prior to the Repayment Date shall be
payable (but watiout interest thereon, unless the Company shall default in the
payment thereof) to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be accompanied
by all appurtenant coupons maturing after the Repayment Date, such Security may
be paid after deducting from the amount payable therefor as provided in Section
1302 an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and
the Trustee if there be furnished to it such security or indemnity as they may
require to save it and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been made as provided
in the preceding sentence, such Holder shall be entitled to receive the amount
so deducted; provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only presentation and surrender of those coupons.
If the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount (together wati
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
Section 1305 Securities Repaid in Part. Upon surrender of any
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee
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shall authenticate and deliver to the Holder of such Security, watiout service
charge and at the expense of the Company, a new Registered Security or
Securities of the same series, of any authorized denomination specified by the
Holder, in an aggregate principal amount equal to and in exchange for the
portion of the principal of such Security so surrendered which is not to be
repaid.
ARTICLE XIV
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401 Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision is
made for eatier or both of (a) defeasance of the Securities of or watiin a
series under Section 1402 or (b) covenant defeasance of the Securities of or
watiin a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together wati the other provisions of tiis
Article (wati such modifications tiereto as may be specified pursuant to
Section 301 wati respect to any Securities), shall be applicable to such
Securities and any coupons appertaining tiereto, and the Company may at its
option by Board Resolution, at any time, wati respect to such Securities and
any coupons appertaining tiereto, elect to have Section 1402 (if applicable) or
Section 1403 (if applicable) be applied to such Outstanding Securities and any
coupons appertaining tiereto upon compliance wati the conditions set forth
below in this Article.
Section 1402 Defeasance and Discharge. Upon the Company's exercise of
the above option applicable to this Section wati respect to any Securities of
or watiin a series, the Company shall be deemed to have been discharged from
its obligations wati respect to such Outstanding Securities and any coupons
appertaining tiereto on the date the conditions set forth in Section 1404 are
satisfied (iereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any coupons
appertaining tiereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1405 and the other Sections of tiis Indenture
referred to in clauses (A) and (B) below, and to have satisfied all of its
otier obligations under such Securities and any coupons appertaining tiereto
and this Indenture insofar as such Securities and any coupons appertaining
thereto are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging tie same), except for the following
which shall survive until otherwise terminated or discharged iereunder: (A) the
rights of Holders of such Outstanding Securities and any coupons appertaining
tiereto to receive, solely from the trust fund described in Section 1404 and as
more fully set forth in such Section, payments in respect of the principal of
(and premium or Make-Whole Amount, if any) and interest, if any, on such
Securities and any coupons appertaining tiereto when such payments are due, (B)
the Company's obligations wati respect to such Securities under Sections 305,
1002 and 1003 and wati respect to the payment of Additional Amounts, if any, on
such Securities as contemplated by Section 1012, (C) the rights, powers,
trusts, duties and immunities of the Trustee iereunder and (D) this Article.
Subject to compliance wati this Article XIV, the Company
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may exercise its option under this Section notwatistanding the prior exercise
of its option under Section 1403 wati respect to such Securities and any
coupons appertaining tiereto.
Section 1403 Covenant Defeasance. Upon the Company's exercise of the
above option applicable to this Section wati respect to any Securities of or
watiin a series, the Company shall be released from its obligations under
Sections 1004 to 1010, inclusive and, if specified pursuant to Section 301, its
obligations under any other covenant, wati respect to such Outstanding
Securities and coupons appertaining tiereto on and after the date the
conditions set forth in Section 1404 are satisfied (iereinafter, "Covenant
defeasance"), and such Securities and any coupons appertaining tiereto 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 wati Sections 1004 to 1010, inclusive, or such other
covenant, but shall continue to be deemed "Outstanding" for all other purposes
iereunder. For this purpose, such covenant defeasance means that, wati respect
to such Outstanding Securities and any coupons appertaining tiereto, the
Company may omit to comply wati and shall have no liability in respect of any
term, condition or limitation set forth in any such Section or such other
covenant, whetier directly or indirectly, by reason of any reference elsewhere
ierein to any such Section or such other covenant or by reason of reference in
any Section or such other covenant to any other provision ierein or in any
otier document and such omission to comply shall not constitute a default or an
Event of Default under Section 501(3) or 501(7) otherwise, as the case may be,
but, except as specified above, remainder of tiis Indenture and such Securities
and any coupons appertaining tiereto shall be unaffected thereby.
Section 1404 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 1402 or Section
1403 to any Outstanding Securities of or watiin a series and any coupons
appertaining tiereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited wati the Trustee (or anotier trustee satisfying tie requirements of
Section 607 who shall agree to comply wati the provisions of tiis Article XIV
applicable to it) as trust funds in trust for the purposes of making tie
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities and any coupons appertaining
thereto, (1) an amount in such currency, currencies or currency unit in which
such Securities and any coupons appertaining tiereto are then specified as
payable at Stated Maturity, or (2) Government Obligations applicable to such
Securities and coupons appertaining tiereto (determined on the basis of the
currency, currencies or currency unit in which such Securities and coupons
appertaining tiereto are then specified as payable at Stated Maturity) which
througi the scheduled payment of principal and interest in respect thereof in
accordance wati the terms wall provide, not later than one day before the due
date of any payment of principal of (and premium or Make-Whole Amount, if any)
and interest, if any, on such Securities and any coupons appertaining tiereto,
money in an amount, or (3) a combination thereof, in any case, in an amount,
sufficient, watiout consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of independent public
accountants expressed in
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a written certification thereof delivered the Trustee, to pay and discharge,
and discharge, the principal of (and premium or Make-Whole Amount, if any) and
interest, if any, on such Outstanding Securities and any coupons, appertaining
thereto on the Stated Maturity of such principal or installment of principal or
interest or analogous payments applicable to such Outstanding Securities and
any coupons appertaining tiereto on the day on which such payments are due and
payable in accordance wati the terms of tiis Indenture and of such Securities
and any coupons appertaining tiereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
otier material agreement or instrument to which tie Company is a party or by
which it is bound.
(c) No Event of Default or event which wati notice or lapse of time
or both would become an Event of Default wati respect to such Securities and
any coupons appertaining tiereto shall have occurred and be continuing on the
date of such deposit or, insofar as Sections 501(6) and 501(7) are concerned,
at any time during tie period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(d) In the case of an election under Section 1402, the Company shall
iave delivered to the Trustee an Opinion of Counsel complying wati Section 102
and stating tiat (i) tie Company has received from, or there has been published
by, tie Internal Revenue Service a ruling, or (ii) since the date of execution
of tiis Indenture, there has been a change in tie applicable Federal income tax
law, in eatier case to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Outstanding Securities and any coupons
appertaining tiereto wall not recognize income, gain or loss for Federal income
tax purposes as a result of such defeasance and wall be subject to 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.
(e) In the case of an election under Section 1403, the Company shall
iave delivered to the Trustee an Opinion of Counsel complying wati Section 102
and stating tiat the Holders of such Outstanding Securities and any coupons
appertaining tiereto wall not recognize income, gain or loss for Federal income
tax purposes as a result of such covenant defeasance and wall be subject to
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.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate complying wati Section 102 and stating tiat all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance under
Section 1403 (as the case may be) have been complied wati and an Opinion of
Counsel complying wati Section 102 and stating tiat (A) all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance under
Section 1403 (as the case may be) have been complied wati and (B) eatier (i) as
a result of a deposit pursuant to subsection (a) above and the related exercise
of tie Company's option under Section 1402 or Section 1403
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(as the case may be), registration is not required under tie Investment Company
Act of 1940, as amended, by tie Company wati respect to the trust funds
representing such deposit or by tie Trustee for such trust funds or (ii) all
necessary registrations under said Act have been effected.
(g) Notwatistanding any otier provisions of tiis Section, such
defeasance or covenant defeasance shall be effected in compliance wati any
additional or substitute terms, conditions or limitations which may be imposed
on the Company in connection therewati pursuant to Section 301.
Section 1405 Deposited Money and Government Obligations to Be Held in
Trust; Otier Miscellaneous Provisions. Subject to tie provisions of tie last
paragraph of Section 1003, all money and Government Obligations (or otier
property as may be provided pursuant to Section 301) (including tie proceeds
thereof) deposited wati the Trustee (or otier qualifying trustee, collectively
for purposes of tiis Section 1405, tie "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons
appertaining tiereto shall be held in trust and applied by tie Trustee, in
accordance wati tie provisions of such Securities and any coupons appertaining
thereto and this Indenture, to tie payment, eatier directly or througi any
Paying Agent as the Trustee may determine, to tie Holders of such Securities
and any coupons appertaining tiereto of all sums due and to become due thereon
in respect of principal (and premium or Make-Whole Amount, if any) and interest
and Additional Amounts, if any, but such money need not be segregated from
otier funds except to the extent required by law.
Unless otierwise specified wati respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been made,
(a) tie 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 or currency unit otier than that in
which the deposit pursuant to Section 1404(a) has been made in respect of such
Security, or (b) a Conversion Event occurs in respect of the currency or
currency unit in which the deposit pursuant to Section 1404(a) has been made,
tie indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and wall be, fully discharged and
satisfied througi tie payment of tie principal of (and premium or Make-Whole
amount, if any), and interest, if any, on such Security as the same becomes due
out of tie proceeds yielded by converting (from time to time as specified below
in the case of any such election) tie amount or otier property deposited in
respect of such Security into the currency or currency unit in which such
Security becomes payable as a result of such election or Conversion Event based
on the applicable market exchange rate for such currency or currency unit in
effect on the second Business Day prior to each payment date, except, wati
respect to a Conversion Event, for such currency or currency unit in effect (as
nearly as feasible) at the time of tie Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
otier charge imposed on or assessed against tie Government Obligations
deposited pursuant
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to Section 1404 or the principal and interest received in respect thereof otier
than any such tax, fee or otier charge which by law is for the account of tie
Holders of such Outstanding Securities and any coupons appertaining tiereto.
Anytiing in this case to the contrary notwatistanding; subject to Section
606, tie Trustee shall deliver or pay to tie Company from time to time upon tie
Company Request any money or Government Obligations (or otier property and any
proceeds thereon) held by it as provided in Section 1404 which, in the opinion
of a nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to tie Trustee, are in excess of tie
amount thereof which would tien be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance wati tiis
Article.
ARTICLE XV
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 tiis Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or otier action 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. (a) 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
tie Borougi of Manhattan, The City of New York, or in London as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any
series, setting forti tie time and tie 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.
(b) In case at any time tie Company pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of tie Outstanding
Securities of any series shall have requested the Trustee to call a meeting of
tie Holders of Securities of such series for any purpose specified in Section
1501, by written request setting forti in reasonable detail the action proposed
to be taken at the meeting, and tie Trustee shall not have made tie first
publication of tie notice of such meeting watiin 21 days after receipt of such
request or shall not hereafter proceed to cause the meeting to be held as
provided herein, tien tie Company or the Holders of Securities of such series
in the amount above specified, as the case may be, may determine tie time and
tie place in the Borougi of Manhattan, tie City of New York, or in London for
such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of tiis Section.
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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 tie Company and its counsel.
Section 1504 Quorum; Action. The Persons entitled to vote a majority in
principal amount of tie Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided,
however, tiat if any action is to be taken at such meeting wati respect to a
consent or waiver which this Indenture expressly provides may be given by tie
Holders of not less than a specified percentage in principal amount of tie
Outstanding Securities of a series, tie Persons entitled to vote such specified
percentage in principal amount of tie Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum watiin 30 minutes after
tie time appointed for any such meeting, the meeting shall, if convened at tie
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 tie meeting prior to tie adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be furtier adjourned for a period of not less than 10
days as determined by the chairman of tie meeting prior to tie adjournment of
such adjourned meeting. Notice of tie reconvening of any adjourned meeting
shall be given as provided in Section 1502(a), except tiat such notice need be
given only once not less than five days prior to tie date on which the meeting
is scheduled to be reconvened. Notice of tie reconvening of any adjourned
meeting shall state expressly tie percentage, as provided above, of tie
principal amount of tie Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by tie proviso to Section 902, any resolution Presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by tie affirmative vote of tie Holders of a
majority in principal amount of tie Outstanding Securities of tiat series;
provided, however, tiat, except as limited by tie proviso to Section 902, any
resolution wati respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specific percentage, which is
less than a majority, in principal amount tie 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 tie affirmative vote of tie
Holders of such specified percentage in principal amount of tie Outstanding
Securities of tiat series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance wati tiis Section shall be
binding on all the Holders
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of Securities of such series and the related coupons, whetier or not present or
represented at tie meeting.
Notwatistanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series wati
respect to any request, demand, authorization, direction, notice, consent,
waiver or other act tiat this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected tiereby, or of tie Holders of such series and
one or more additional series:
(i) tiere shall be no minimum quorum requirement for such
meeting; and
(ii) tie principal amount of tie Outstanding Securities of such
series tiat vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whetier such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or
taken under this Indenture.
Section 1505 Determination of Voting Rights; Conduct and Adjournment of
Meetings. (a) Notwatistanding any provisions of this Indenture, tie Trustee
may make such reasonable regulations as it may deem advisable for any meeting
of Holders of Securities of a series in regard to proof of tie holding of
Securities of such series and of tie appointment of proxies and in regard to
tie appointment and duties of inspectors of votes, tie submission and
examination of proxies, certificates and otier evidence of the right to vote
and such other matters concerning the conduct of tie meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall proved in the manner specified in
Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of tie Person executing tie
proxy watnessed or guaranteed by any trust company, bank or banker authorized
by Section 104 to certify to tie holding of Bearer Securities. Such
regulations may provide tiat written instruments appointing proxies, regular on
tieir fact, may be presumed valid and genuine watiout tie proof specified in
Section 104 or other proof.
(b) Tie Trustee shall, by an instrument in writing appoint a
temporary chairman of tie meeting, unless the meeting shall have been called by
tie Company or by Holders of Securities provided in Section 1502(b), in which
case tie Company or the Holders of Securities of tie series calling tie
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of tie meeting shall be elected
by vote of tie Persons entitled to vote a majority in principal amount of tie
Outstanding Securities of such series represented at tie meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of tie
Outstanding
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Securities of such series held or represented by him; 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 tie meeting to be
not Outstanding. Tie chairman of tie meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of tie
Outstanding Securities of such series represented at tie meeting, and the
meeting may be held as so adjourned watiout furtier notice.
Section 1506 Counting Votes and Recording Action of Meetings. Tie 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 tie signatures
of the Holders of Securities of such series or of tieir representatives by
proxy and the principal amounts and serial numbers of tie Outstanding
Securities of such series held or represented by tiem. Tie permanent chairman
of the meeting shall appoint two inspectors of votes who shall count all votes
cast at tie meeting for or against any resolution and who shall make and file
wati tie secretary of tie meeting tieir verified written reports in duplicate
of all votes cast at tie meeting. A record, at least in duplicate, of tie
proceedings of each meeting of Holders of Securities of any Series shall be
prepared by the secretary of tie meeting and there shall be attached to said
record tie original reports of tie inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
fact, setting forti a copy of tie notice of tie 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 tie permanent
chairman and secretary of meeting and one such copy shall be delivered to tie
Company and anotier to tie Trustee to be preserved by the Trustee, the latter
to have attached thereto tie ballots voted at tie meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
Section 1507 Evidence of Action Taken by Holders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
tiis Indenture to be given or taken by a specified percentage in principal
amount of tie Holders of any or all series may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such specified
percentage of Holders in person or by agent duly appointed in writing; and
except as herein otierwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to tie Trustee,
proof of execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of tiis Indenture and (subject to Article
VI) conclusive in favor of tie Trustee and the Trust, if made in the manner
provided in tiis Article.
Section 1508 Proof of Execution of Instruments. Subject to Article VI,
tie execution of any instrument by a Holder or his agent or proxy may be proved
in
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accordance wati such reasonable rules and regulations as may be prescribed by
tie Trustee or in such manner as shall be satisfactory to tie Trustee.
Tiis Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall togetier constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused tiis Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of tie day and year first above written.
FRONTIER CORPORATION
By:__________________________________________
Title:
[BANK], as Trustee
By:__________________________________________
Title:
ATTEST
By:___________________________
Title:
STATE OF _____________ )
) ss:
COUNTY OF ____________ )
On the ____ day of ___________, 1995, before me personally came to me
known, _________________ who, being by me duly sworn, did depose and say that
he/sie resides in _________________________________, that he/sie is the
_______________ of Frontier Corporation, one of tie parties described in and
which executed tie foregoing instrument; and that he/sie signed iis/ier name
tiereto by authority of said corporation.
[Notary Seal]
_____________________________________________
Notary Public Commission
Expires:_____________________________________
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STATE OF ___________ )
) ss:
COUNTY OF __________ )
On the ____ day of ___________, 1995, before me personally came to me
known, _________________ who, being by me duly sworn, did depose and say that
he/sie resides in _________________________________, that he/sie is the
_______________ of [Bank], one of tie parties described in and which executed
tie foregoing instrument; and that he/sie signed iis/ier name tiereto by
authority of said corporation.
[Notary Seal]
_____________________________________________
Notary Public Commission
Expires:_____________________________________
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EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
Tiis is to certify that, as of tie date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of tie United States, domestic
companies, domestic corporations or any estate or trust the income of which is
subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
2.165(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who
acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in eatier case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise Frontier Corporation or its agent that such
financial institution will comply wati the requirements of Section
165(j)(3)(A), (B) or (C) of tie United States Internal Revenue Code of 1986, as
amended, and the regulations tiereunder), or (iii) are owned by United States
or foreign financial institution(s) for purpose of resale during the restricted
period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if tie owner is a United States or
foreign financial institution described in clause (iii) above (whetier or not
also described in clause (i) or (ii)), tiis is to further certify that such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person watiin the
United States or its possessions.
As used ierein, "United States" means tie United States of America
(including the States and the District of Columbia); and "possessions" include
Puerto Rico, tie U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance wati your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of such notification it may be assumed that tiis
certification applies as of such date.
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Tiis certificate excepts and does not relate to [U.S. $] _________________
of such interest in the above-captioned Securities in respect of which we are
not able to certify and as to which we understand an exchange for an interest
in a Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until
we do so certify.
We understand that tiis certificate may be required in connection wati
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection wati which tiis
certificate is or would be relevant, we irrevocably authorize you to produce
tiis certificate or a copy thereof to any interested party in such proceedings.
Dated:______________, 19__
[To be dated no earlier than the 15ti day prior to
(i) the Exchange Date or (ii) the relevant Interest
Payment Date occurring prior to the Exchange Date,
as applicable]
[Name of Person Making Certification]
_____________________________________________
(Authorized Signatory)
Name:
Title:
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EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO OBTAIN
INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
Tiis is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of tie persons appearing in our records as persons entitled to a portion
of tie principal amount set forti below (our "Member Organizations")
substantially in the form attached iereto, as of the date hereof, [U.S. $]
_________________ principal amount of tie above-captioned Securities (i) is
owned by person(s) that are not citizens or residents of tie United States,
domestic companies, domestic corporations or any estate or trust the income of
which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) is owned by United States person(s)
tiat are (a) foreign branches of United States financial institutions
(financial institutions, as defined in United States Treasury Regulations
Section 1.165-12(c)(1)(v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in eatier case (a) or (b), each such
financial institution has agreed, on its own behalf or through its agent, tiat
we may advise Frontier Corporation, Inc. or its agent that such financial
institution wall comply wati the requirements of Section 165(j)(3)(A), (B) or
(C) of tie Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for purpose of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to
furtier effect, tiat financial institutions described in clause (iii) above
(whetier or not also described in clause (i) or (ii)) have certified that tiey
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person watiin the United States or its
possessions.
As used ierein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Nortiern Mariana Islands.
We furtier certify that (i) we are not making available herewati for
exchange (or, if relevant, collection of any interest) any portion of tie
temporary global Security representing the above captioned Securities excepted
in tie above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that tie statements made by such Member
Organizations wati respect to any portion of tie part submitted ierewati
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for exchange (or, if relevant, collection of any interest) are no longer true
and cannot be relied upon as of the date hereof.
We understand that tiis certification is required in connection wati
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection wati which tiis
certificate is or would be relevant, we irrevocably authorize you to produce
tiis certificate or a copy thereof to any interested party in such proceedings.
Dated:______________, 19__
[To be dated no earlier than tie Exchange Date
or the relevant Interest Payment Date occurring
prior to tie Exchange Date, as applicable]
[Xxxxxx Guaranty Trust Company of New York,
Brussels Office,] as Operator of tie
Euroclear System [Cedel S.A.]
By:________________________________________
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