XXXX-XXXX REALTY, L.P.,
ISSUER
XXXX-XXXX REALTY CORPORATION,
GUARANTOR
TO
--------------------------------------,
TRUSTEE
INDENTURE
DATED AS OF ______, 1998
DEBT SECURITIES
REFERENCE SHEET (*)
-------------------
Reference is made to the following provisions of the Trust Indenture
Act of 1939, as amended, which establish certain duties and responsibilities of
the Issuer and the Trustee which may not be set forth in this Indenture:
SECTIONS SUBJECT SECTION SUBJECT
-------- ------- ------- -------
310(b) Disqualification of the 315(b) Notice of default from the
Trustee for conflicting Trustee to Securityholders
interest
311 Preferential collection of 315(c) Duties of the Trustee in
claims of the Trustee as case of default
creditor of the Issuer
312(a) Periodic filing of 315(d) Provisions relating to
information by the Issuer responsibility of the
with Trustee Trustee
312(b) Access of Securityholders 315(e) Assessment of costs
to information against litigating
Securityholders in certain
circumstances
313(a) Annual report of the 316(a) Directions and waivers by
Trustee to Securityholders Securityholders in certain
circumstances
313(b) Additional reports of the 316(b) Prohibition of impairment
Trustee to Securityholders of right of
Securityholders to payment
314(a) Reports by the Issuer, 316(c) Right of the Issuer to set
including annual record date for certain
compliance certificate purposes
314(b) Evidence of compliance 317(a) Special powers of the
with conditions precedent Trustee
315(a) Duties of the Trustee 318(a) Provisions of Trust
prior to default Indenture Act of 1939 to
control in case of
conflict.
-----------------------------------
(*) This reference sheet is not a part of the Indenture.
TABLE OF CONTENTS
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION. . . . . . . . . . 2
SECTION 101. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. . . . . . . . . . .10
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. . . . . . . . . .11
SECTION 104. ACTS OF HOLDERS . . . . . . . . . . . . . . . . . . . . .11
SECTION 105. NOTICES, ETC., TO TRUSTE, ISSUER AND GUARANTOR. . . . . .13
SECTION 106. NOTICE TO HOLDERS; WAIVER. . . . . . . . . . . . . . . .14
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS. . . . . . . . .14
SECTION 108. SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . .14
SECTION 109. SEPARABILITY CLAUSE . . . . . . . . . . . . . . . . . . .14
SECTION 110. BENEFIT OF INDENTURE. . . . . . . . . . . . . . . . . . .15
SECTION 111. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . .15
SECTION 112. LEGAL HOLIDAYS. . . . . . . . . . . . . . . . . . . . . .15
ARTICLE TWO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
SECURITIES FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
SECTION 201. FORMS OF SECURITIES . . . . . . . . . . . . . . . . . . .15
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION . . . . .16
SECTION 203. IF SECURITIES OF A SERIES ARE ISSUABLE IN GLOBAL FORM . .16
ARTICLE THREE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. . . . . . . . . . .17
SECTION 302. DENOMINATIONS . . . . . . . . . . . . . . . . . . . . . .21
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. . . . . .21
SECTION 304. TEMPORARY SECURITIES. . . . . . . . . . . . . . . . . . .23
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE . . .24
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. . . . .27
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHT PRESERVED . . . . . .28
SECTION 308. PERSONS DEEMED OWNERS . . . . . . . . . . . . . . . . . .30
SECTION 309. CANCELLATION. . . . . . . . . . . . . . . . . . . . . . .31
SECTION 310. COMPUTATION OF INTEREST . . . . . . . . . . . . . . . . .31
3
ARTICLE FOUR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . . . .32
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE . . . . . . . . .32
SECTION 402. APPLICATION OF TRUST FUNDS. . . . . . . . . . . . . . . .33
ARTICLE FIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
SECTION 501. EVENT DEFAULT . . . . . . . . . . . . . . . . . . . . . .34
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. . . .36
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . .37
SECTION 504. TRUSTEE MAY FILE PROOF OF CLAIM . . . . . . . . . . . . .38
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS . . . . . . . . . . . . . . . . .39
SECTION 506. APPLICATION OF MONEY COLLECTED. . . . . . . . . . . . . .39
SECTION 507. LIMITATION ON SUITS . . . . . . . . . . . . . . . . . . .39
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM, IF ANY, INTEREST AND ADDITIONAL AMOUNTS. . . .40
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. . . . . . . . . . . .40
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. . . . . . . . . . . . . .40
SECTION 511. DELAY OR OMISSION NOT WAIVER. . . . . . . . . . . . . . .41
SECTION 512. CONTROL BY HOLDERS OF SECURITIES. . . . . . . . . . . . .41
SECTION 513. WAIVER OF PAST DEFAULTS . . . . . . . . . . . . . . . . .41
SECTION 514. WAIVER OF USURY, STAY OR EXTENSION LAWS . . . . . . . . .42
SECTION 515. UNDERTAKING FOR COSTS . . . . . . . . . . . . . . . . . .42
ARTICLE SIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
SECTION 601. NOTICE OF DEFAULTS. . . . . . . . . . . . . . . . . . . .42
SECTION 602. CERTAIN RIGHTS OF TRUSTEE . . . . . . . . . . . . . . . .43
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. .44
SECTION 604. MAY HOLD SECURITIES . . . . . . . . . . . . . . . . . . .44
SECTION 605. MONEY HELD IN TRUST . . . . . . . . . . . . . . . . . . .44
SECTION 606. COMPENSATION AND REIMBURSEMENT. . . . . . . . . . . . . .45
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTERESTS . . . . . . . . . . . . . . . . . . . . . . .45
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR . . . .46
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. . . . . . . . . .47
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. . . . . . . . . . . . . . . . . . . . . . . .48
SECTION 611. APPOINTMENT OF AUTHENTICATION AGENT . . . . . . . . . . .49
4
ARTICLE SEVEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER . . . . . . . . . . . . .50
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS. . . . . . .50
SECTION 702. REPORTS BY TRUSTEE. . . . . . . . . . . . . . . . . . . .51
SECTION 703. REPORTS BY ISSUER AND XXXXXXXXX . . . . . . . . . . . . .51
SECTION 704. ISSUER AND THE GUARANTOR TO FURNISH TO TRUSTEE
NAMES AND ADDRESSES OF HOLDERS. . . . . . . . . . . . .51
ARTICLE EIGHT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52
CONSOLIDATION, MERGER AND SALES. . . . . . . . . . . . . . . . . . . . . .52
SECTION 801. ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS . . .52
SECTION 802. SUCCESSOR PERSON SUBSTITUTED FOR ISSUER . . . . . . . . .53
SECTION 803. GUARANTOR MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. .53
SECTION 804. SUCCESSOR PERSON SUBSTITUTED FOR GUARANTOR. . . . . . . .54
SECTION 805. ASSUMPTION BY GUARANTOR . . . . . . . . . . . . . . . . .54
ARTICLE NINE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55
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 SUPPLEMENT INDENTURES. . . . . . . . . . . .58
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES . . . . . . . . . . . .58
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT . . . . . . . . . . .58
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES. . . .58
ARTICLE TEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, 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. . . .61
SECTION 1004. EXISTENCE. . . . . . . . . . . . . . . . . . . . . . . .62
SECTION 1005. STATEMENT AS TO COMPLIANCE . . . . . . . . . . . . . . .62
SECTION 1006. MAINTENANCE OF PROPERTIES. . . . . . . . . . . . . . . .62
SECTION 1007. INSURANCE. . . . . . . . . . . . . . . . . . . . . . . .63
SECTION 1008. PAYMENT OF TAXES AND OTHER CLAIMS. . . . . . . . . . . .63
5
SECTION 1009. ADDITIONAL AMOUNTS . . . . . . . . . . . . . . . . . . .63
SECTION 1010. WAIVER OF CERTAIN COVENANTS. . . . . . . . . . . . . . .64
ARTICLE ELEVEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64
REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . .64
SECTION 1101. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . . .64
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. . . . . . . . . .64
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. . . .65
SECTION 1104. NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . . .65
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. . . . . . . . . . . . . . .66
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. . . . . . . . . .67
SECTION 1107. SECURITIES REDEEMED IN PART. . . . . . . . . . . . . . .68
ARTICLE TWELVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68
SINKING FUNDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68
SECTION 1201. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . . .68
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENT WITH SECURITIES . .68
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND. . . . . . . .69
ARTICLE THIRTEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .69
REPAYMENT AT THE OPTION OF HOLDERS . . . . . . . . . . . . . . . . . . . .69
SECTION 1301. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . . .69
SECTION 1302. REPAYMENT OF SECURITIES. . . . . . . . . . . . . . . . .69
SECTION 1303. EXERCISE OF OPTION . . . . . . . . . . . . . . . . . . .70
SECTION 1304. WHEN SECURITIES PRESENTED FOR RECIPIENT BECOME DUE
AND PAYABLE. . . . . . . . . . . . . . . . . . . . . .70
SECTION 1305. SECURITIES REPAID IN PART. . . . . . . . . . . . . . . .71
ARTICLE FOURTEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .71
DEFEASANCE AND COVENANT DEFEASANCE . . . . . . . . . . . . . . . . . . . .71
SECTION 1401. APPLICABILITY OF ARTICLE; ISSUER'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE. . . . . . . . . . .71
SECTION 1402. DEFEASANCE AND DISCHARGE . . . . . . . . . . . . . . . .72
SECTION 1403. COVENANT DEFEASANCE. . . . . . . . . . . . . . . . . . .72
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. . . . .73
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS . . . . . . .75
6
ARTICLE FIFTEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76
MEETINGS OF HOLDERS OF SECURITIES. . . . . . . . . . . . . . . . . . . . .76
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. . . . . . . .76
SECTION 1502. XXXX, NOTICE AND PLACE OF MEETINGS . . . . . . . . . . .76
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS . . . . . . . . . .76
SECTION 1504. QUORUM; ACTION . . . . . . . . . . . . . . . . . . . . .77
SECTION 1505. DETERMINATION OF VOTING RIGHT; CONDUCT AND
ADJOURNMENT OF MEETINGS. . . . . . . . . . . . . . . .78
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETING . . . . .79
ARTICLE SIXTEEN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79
GUARANTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79
SECTION 1601. GUARANTEE. . . . . . . . . . . . . . . . . . . . . . . .79
EXHIBIT A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED TO RECEIVE
BEARER SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE
EXCHANGE DATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82
7
INDENTURE, dated as of___________ 1998, among Xxxx-Xxxx Realty, L.P., a
limited partnership organized under the laws of Delaware (hereinafter called the
"ISSUER"), having its principal office at 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx
Xxxxxx 00000, Xxxx-Xxxx Realty Corporation, a corporation organized under the
laws of Maryland (hereinafter called the "GUARANTOR"), having its principal
office at 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000, and
________________________, as Trustee hereunder (hereinafter called the
"TRUSTEE"), having a Corporate Trust Office at
____________________________________________________.
RECITALS
The Issuer deems it necessary to issue from time to time for lawful
purposes its unsecured debt securities (hereinafter called 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 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 as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Issuer, in accordance with its terms, have been done.
For value received, the execution and delivery by the Guarantor of this
Indenture to provide for the issuance of the Guarantee provided for herein has
been duly authorized. All things necessary to make this Indenture a valid
agreement of the Guarantor, in accordance with its terms, have been done.
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 by such
Act, and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Issuer, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof; it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the securities, as follows:
ARTICLE ONE
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;
(3) all account terms not otherwise defined herein have the meanings
assigned to than 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 other subdivision.
Certain terms used principally in Article Three, Article Five, Article Six
and Article Ten, are defined in those Articles.
"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 Issuer 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.
"AUTHORITY 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
2
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.
"BEARER SECURITY" means any Security established pursuant to Section 201
which is payable to bearer.
"BOARD" means the board of directors of the General Partner, the executive
committee or any committee of that board duly authorized to act hereunder.
"BOARD RESOLUTION" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the General Partner to have been duly adopted by
the Board 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.
"CAPITALIZED LEASES" means any lease of property by the Issuer or any
Subsidiary as lessee which is reflected on the Issuer's consolidated balance
sheet as a capitalized lease, or which should be so reflected, in accordance
with GAAP.
"COMMISSION" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, 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.
"CONVERSION EVENT" means the cessation of use of (i) a Foreign Currency
either by the government of the country which issued such currency or for the
settlement of transactions by a central bank or other public institution of or
within the international banking community, (ii) the ECU either within the
European Monetary System or for the settlement of transactions by public
institutions of or within the European Community, 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 office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at _________; provided, that with
respect to presentment, transfer, exchange, registration or payment of
Securities, "CORPORATE TRUST OFFICE" means c/o the corporate trust office of
__________________________________________________.
"COUPON" means any interest coupon appertaining to a Bearer Security.
3
"DEBT" of the Issuer or any Subsidiary means, without duplication, any
indebtedness of the Issuer or any Subsidiary, in respect of (i) borrowed money,
(ii) evidenced by bonds, notes, debentures or similar instruments, (iii)
indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or any
security interest existing on property owned by the Issuer or any Subsidiary,
(iv) letters of credit or 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 (iv) Capitalized Leases, and also
includes, to the extent not otherwise included, any obligation by the Issuer 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 Issuer or any Subsidiary).
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"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.
"DTC" means The Depository Trust Company, or any successor thereto.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Community.
"EUROPEAN COMMUNITY" means the European Economic Community.
"EUROPEAN MONETARY SYSTEM" means the European Monetary System established
by the Resolution of December 5, 1978 of the Council of the European Community.
"EVENT OF DEFAULT" has the meaning specified in Article Five.
"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 used in the United
States applied on a consistent basis.
"GENERAL PARTNER" means XXXX-XXXX REALTY CORPORATION, a Maryland
corporation, as general partner of the Issuer.
"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
4
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 issuer 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 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.
"GUARANTEE" means the unconditional guarantee of the payment of the
principal of or any premium or interest on or any Additional Amounts with
respect to the Guaranteed Securities by the Guarantor, as more fully set forth
in Article Sixteen.
"GUARANTEED SECURITIES" means a series of Securities made subject to a
Guarantee (as set forth in Article Sixteen) pursuant to Section 301.
"GUARANTOR" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"GUARANTOR'S BOARD OF DIRECTORS" means the board of directors of the
Guarantor or any committee of that board duly authorized to act generally or in
any particular respect for the Guarantor hereunder.
"GUARANTOR'S BOARD RESOLUTION" means a copy of one or more resolutions,
certified by the Secretary or an Assistant Secretary of the Guarantor to have
been duly adopted by the Guarantor's Board of Directors and to be in full force
and effect on the date of such certification, delivered to the Trustee.
"GUARANTOR'S OFFICERS' CERTIFICATE" means a certificate signed by the
Chairman, the President or a Vice President and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Guarantor, that
complies with the requirements of Section 314(e) of the Trust Indenture Act and
is delivered to the Trustee.
"GUARANTOR REQUEST" and "GUARANTOR ORDER" mean, respectively, a written
request or order signed in the name of the Guarantor by the Chairman, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Guarantor, and delivered to the
Trustee.
"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
5
"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 any such Person is Trustee, this
instrument as originally executed or as it may from time to time be supplemented
or amended and shall include the terms of the Security or those 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 not
Trustee.
"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, as determined by reference
to a particular index or other measure specified in a supplemental indenture
relating to such Security.
"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 1010,
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.
"ISSUER" means the Person named as the "Issuer" in the first paragraph of
this Indenture until a successor shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Issuer" shall mean such
successor.
"ISSUER REQUEST" and "ISSUER ORDER" mean, respectively, a written request
or order signed in the name of the Issuer by the General Partner by its
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the General Partner, and delivered to the
Trustee.
"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.
"OFFICERS' CERTIFICATE" means a certificate signed by the President or a
Vice President of the General Partner and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the General Partner, and
delivered to the Trustee.
6
"OPINION OF COUNSEL" means a written opinion of counsel, who may, if
permitted by the TIA, be counsel for the Issuer or the Guarantor, as the case
may be, or who may be an employee of or other counsel for the Issuer or the
Guarantor, as the case may be.
"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 Issuer or the Guarantor) in trust 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 Issuer or the Guarantor has effected
defeasance as provided in Article Fourteen; 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 by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Issuer;
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 the 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 Issuer, of the principal amount (or, in the
case of an Original Issue Discount Security, the Dollar equivalent as
7
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 Issuer, the Guarantor, or any other obligor upon the Securities or any
Affiliate of the Issuer, the Guarantor, 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 shall have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee (A) the pledgee's right so to act with respect to such Securities
and (B) that the pledgee is not the Issuer, the Guarantor or any other obligor
upon the Securities or any coupons appertaining thereto or an Affiliate of the
Issuer, the Guarantor or such other obligor.
"PAYING AGENT" means any Person authorized by the Issuer to pay the
principal of (and premium, if any) or interest on any securities or coupons on
behalf of the Issuer.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock Issuer, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PLACE OF PAYMENT", when used with respect to the Securities of any series,
means the place or places where the principal of (and premium, if any) and
interest on such Securities are payable as specified as contemplated by Sections
301 and 1002.
"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, last 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 established pursuant to
Section 201 which is registered in the Security Register.
8
"REGULAR RECORD DATE" for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 301, whether or not a Business Day.
"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.
"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 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, 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.
"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 by such Trustee (or its
predecessor as such) 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 1933, as amended) of the Issuer.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Registered Securities of 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.
"SUBSIDIARY" means a corporation, partnership or limited liability company,
a majority of the outstanding voting stock, partnership interests or membership
interests, as the case may be, of which is owned or controlled, directly or
indirectly, by the Issuer or by one or more other Subsidiaries of the Issuer.
For the purposes of this definition, "voting stock" means stock having
9
voting 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.
"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, partnership or other entity
created or organized in or under the laws of the United States or an estate
the income of which is subject to United States federal income taxation
regardless of its source or a trust if a court within the United States is
able to exercise primary supervision over the administration of the trust and
one or more United States persons have the authority to control all
substantial decisions of the trust.
"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 Issuer or the Guarantor to the Trustee to take any action
under any provision of this Indenture, the Issuer or the Guarantor, as the case
may be, shall furnish to the Trustee an Officers' Certificate or a Guarantor's
Officer's Certificate, as the case may be, 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 finished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (including certificates delivered
pursuant to Section 1006) shall include:
10
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where
several matters are required to be certified by or covered by an opinion of any
specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give an opinion
as to some matters and one or more other such Persons as to other matters, and
any such Person or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Issuer or the Guarantor 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
Issuer or the Guarantor, as the case may be, stating that the information as to
such factual matters is in the possession of the Issuer or the Guarantor, as the
case may be, 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
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
11
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 Fifteen, 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 Issuer and the Guarantor. 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 Issuer and the Guarantor and any
agent of the Trustee or the Issuer and the Guarantor, 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 so be proved in
any other reasonable manner which the Trustee deans 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 depository, by any trust
issuer, bank or other depository reasonably acceptable to the Issuer and the
Guarantor, 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 depository, 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, the Guarantor and the
Issuer 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 longer
Outstanding. The ownership of Bearer Securities may also be proved in any other
manner which the Trustee deems sufficient;
(e) If the Issuer or the Guarantor shall solicit from the Holders of
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Issuer or the Guarantor, as the case may be,
may, at its option, in or pursuant to a Board Resolution in Guarantor's Board
Resolution, as the case may be, fix in advance a record date for
12
the determination of the Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Issuer
or the Guarantor 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 the 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 seven
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, the Guarantor or the
Issuer in reliance thereon, whether or not notation of such action is made upon
such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE, ISSUER AND GUARANTOR. 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, given or furnished to, or filed with:
(1) the Trustee by any Holder, the Guarantor or the Issuer shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office, or
(2) the Issuer or the Guarantor 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 Issuer or the Guarantor, as the case may be, 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 Issuer or the Guarantor, as the case may be.
SECTION 106. NOTICE TO HOLDERS; WAIVER. Where this Indenture provides for
notice of any event to the Holders of Registered Securities by the Issuer 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 the Holders of Registered Securities is given by mail, neither the
failure to mail such notice, nor any defect in any notice so
13
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 the Holders of Bearer Securities given as provided herein. Any notice
mailed to a Registered 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.
Except as otherwise express provided herein or otherwise specified with
respect to any Securities pursuant to Section 301, where this Indenture provides
for notice to the 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 maybe 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.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under the 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
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by the Holders shall be filed with the Trustee.
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 Issuer or the Guarantor shall bind its 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. BENEFIT OF INDENTURE. Nothing in this Indenture or in
the Securities or coupon, express or implied, shall give to any Person, other
than the parties hereto, any Security Register, any Paying Agent, any
Authenticating Agent and their successors hereunder and the Holders, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. GOVERNING LAW. This Indenture and the Securities and coupons
shall be governed by and construed in accordance with the laws 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, which are incorporated herein by reference.
14
SECTION 112. LEGAL HOLIDAYS. In any case where any Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding 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, if any) or sinking fund
payment need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date, Redemption Date, Repayment
Date or sinking fund payment date, or at the Stated Maturity or Maturity,
provided that 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, to the date
of payment.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. FORMS OF SECURITIES. The Registered Securities, if any, of
each series and the Bearer Securities and related coupons, if any, of each
series shall be in substantially the form as shall be established in an
indenture supplemental hereto or approved from time to time by or pursuant to a
Board Resolution in accordance with Section 301, 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 Issuer may deem appropriate and as
are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any 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, if any) shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Issuer 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:
15
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
-------------------------,
as Trustee
By
----------------------
Authorized Officer
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM. If Securities of a
series are issuable in global form, as specified in and as contemplated by
Section 301, then, notwithstanding 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 Issuer 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 Issuer Order. If a Issuer Order pursuant to Section
303 or 304 has been, or simultaneously is, delivered, any instructions by the
Issuer with respect to endorsement or delivery or redelivery of a Security in
global form shall be in writing but need not comply with Section 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 was never
issued and sold by the Issuer and the Issuer delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise specified
as contemplated by Section 301, payment of principal of and any premium and
interest on any Security in permanent global form shall be made to the Person or
Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in the
preceding paragraph, the Issuer, the Trustee and any agent of the Issuer 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, the Person or Persons specified therein.
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ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. 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, 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:
(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 will
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 will 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 months;
(5) the place or places, if any, other than or in addition to the
City of ______, where (i) the principal of (and premium, if any), interest,
if any, on, and Additional Amounts, if any, payable in respect of;
Securities of the series shall be payable, (ii) any Registered Securities
of the series may be surrendered for registration of transfer, exchange or
conversion, and (iii) notices or demands to or upon the Issuer in respect
of the Securities of the series and this Indenture may be served;
(6) the period or periods within which, or the date or 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
17
the series may be redeemed, in whole or in part, at the option of the
Issuer, if the Issuer is to have the option;
(7) the obligation, if any, of the Issuer to redeem, repay or
purchase Securities of the series, pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof upon the
occurrence of specified circumstances or otherwise, and the period or
periods within which or the date or 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, 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 for the series;
(10) the percentage of the principal amount at which Securities of
such series will be issued and, if other than the principal amount thereof,
the portion of the principal amount of Securities of the series that shall
be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or, if applicable, the portion of the principal
amount of Securities of the series that is convertible in accordance with
the 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, if any), interest, if any,
on, and 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, if
any) or Interest, if any, on the Securities of the series may be determined
with reference to an index, formula or other method (which index, formula
or method may be based, without 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, if any) or interest, if
any, on or Additional Amounts, if any, on the Securities of the series are
to he payable, at the election of the Issuer or the Guarantor 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 within which
(including the Election Date), and the terms and conditions upon which,
such election may be made, and the time and manner of, and identity of the
exchange rate between the
18
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 Issuer or the Guarantor set forth in this
Indenture with respect to Securities of the series, (whether or not such
Events of Default or covenants are consistent with the Events of default or
covenants set forth herein),
(16) whether Securities of such series will be issued in certificated
or book-entry form and, if certificated, whether Securities of the series
are to be issuable as Registered Securities, Bearer Securities (with or
without 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 with or without 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 authorized form and denomination and the circumstances under which 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 depository 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 Fourteen;
19
(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 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
authenticated and delivered;
(22) whether and under what circumstances the Issuer will pay
Additional Amounts as contemplated by Section 1010 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 Issuer will have
the option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option);
(23) the terms and conditions, if any, upon which payment of the
Securities of such series shall be subordinated to other Debt of the Issuer
(including, without limitation, the Debt which ranks senior to such
Securities, restrictions on payments to Holders of such Securities while a
default with respect to such senior Debt is continuing; restrictions, if
any, on payments to the Holders of such Securities following an Event of
Default, and any requirements for Holders of such Securities to remit
certain payments to the holders of such senior Debt);
(24) if the Securities of such series are to be Guaranteed Securities;
and
(25) any other terms of the series (which terms shall not be
inconsistent with 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 denominations and except as may otherwise be
provided in or pursuant to the Board Resolution establishing the series (subject
to Section 303) and set forth in an Officers' Certificate or in any indenture
supplemental hereto. All Securities of any one series need not be issued at the
same time and, unless otherwise provided, a series may be reopened, without 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 Issuer and delivered to the Trustee at or prior to the delivery
of the Officers' Certificate setting forth 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. With respect to Securities
20
of any series denominated in Dollars, in the absence of any such provisions, 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 denominations of $5,000
and any integral multiple $1,000. Securities not denominated in Dollars shall
be issuable in such denominations as are established with respect to such
Securities in or purusant to this Indenture.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING., The
Securities and any coupons appertaining thereto shall be executed on behalf of
the Issuer by its President or one of its Vice Presidents, under its seal
reproduced thereon, and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities and
coupons may be manual or facsimile signatures of such authorized officer and may
be imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Issuer shall bind
the Issuer, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Issuer may deliver Securities of an series, together with any
coupon appertaining thereto, executed by the Issuer to the Trustee for
authentication, together with a Issuer Order for the authentication and delivery
of such Securities, and the Trustee in accordance with the Issuer Order shall
authenticate and deliver such Securities; PROVIDED, HOWEVER, that, in connection
with its original issuance, no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and PROVIDED, FURTHER, that,
unless otherwise specified with respect to any series of Securities pursuant to
Section 301, a Bearer Security may be delivered in connection with its original
issuance only if the Person entitled to receive such Bearer Security shall have
furnished a certificate in the form set forth in EXHIBIT A to this Indenture or
such other certificate as may be specified with 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 a temporary Security first becomes exchangeable for such Bearer Security
in accordance with 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 with its original issuance of such beneficial owner's
interest in such permanent global Security. Except as permitted by Section 306,
the Trustee shall not authenticate 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 Issue Order may set forth procedures 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 authenticating such
21
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 Sections 315(a) through 315(d)) shall be fully protected in
relying upon,
(i) an Opinion of Counsel stating that:
(a) the form or forms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
(b) the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons appertaining thereto,
when completed by appropriate insertions and executed and delivered by the
Issuer or the Guarantor to the Trustee for authentication in accordance
with this Indenture, authenticated and delivered by the Trustee in
accordance with this Indenture and issued by the Issuer or the Guarantor in
the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute legal, valid and binding obligations of the
Issuer, enforceable in accordance with their terms, subject to applicable,
bankruptcy, insolvency, reorganization and other similar of general
applicability relating to or affecting the enforcement of creditors' rights
generally and to general equitable principles; and will entitle the Holders
thereof to the benefits of this Indenture, including the Guarantee; such
Opinion of Counsel need express no opinion as to the availability of
equitable remedies; and
(ii) an Officers' Certificate and a Guarantor's Officer's Certificate,
in each case stating that all conditions precedent provided for in this
Indenture relating to the issuance of the Securities have been complied
with and that, to the best of the knowledge of the signers of such
certificate, no Event of Default with 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 authenticate 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 acceptable to the Trustee.
Each Registered Security shall be dated the date of its authentication 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 any 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 certificate of authentication
substantially in the form provided for herein duly executed by the Trustee by
manual signature of an authorized officer, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
22
Notwithstanding the foregoing, if any Security still have been authenticated and
delivered hereunder but never issued and sold by the Issuer, and the Issuer
shall deliver such Security to the Trustee for cancellation as provided in
Section 309 together with a written statement (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Issuer, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. TEMPORARY SECURITIES. Pending the preparation of definitive
Securities of any series, the Issuer may execute, and upon Issuer Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, of the tenor of the definitive Securities in lieu of which they
are issued, in registered form, or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as 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 with the terms thereof or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Issuer will cause definitive Securities of that series to be
prepared without 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 Issuer in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Issuer shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
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 with the conditions set forth 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.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. The
Issuer shall cause to be kept at the Corporate Trust Office of the Trustee or in
any office or agency of the Issuer or the Guarantor in a Place of Payment a
register for each series of Registered Securities (the registers maintained in
such office or in any such office or agency of the Issuer or the Guarantor 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 Issuer shall provide for the registration of Registered
Securities and of transfers of Registered Securities. The Security Register
shall be in written form or any other form capable of being convened into
written form within a reasonable time. The Trustee, at its Corporate Trust
Office, is hereby initially appointed the "SECURITY REGISTRAR" for the purpose
of registering Registered Securities
23
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 Issuer in a Place of Payment for that series, the Issuer shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, once or more new Registered Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount, bearing a number not contemporaneously outstanding, and
containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the Holder,
Registered Securities of any series may be exchanged for other Registered
Securities of the same series, of any authorized 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. Whenever any such Registered Securities are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Register Securities which the Holder making the
exchange is entitled to receive. Unless otherwise specified with 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 or
Guarantor's Board Resolution and (subject to Section 303) set forth 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 authorized 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, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons, in default
any such permitted exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Issuer or the Guarantor (if
such Bearer Securities are Guaranteed Securities) 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 Issuer, the Guarantor (if such Bearer
Securities are Guaranteed Securities) 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. Notwithstanding 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
24
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated in Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depository 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 Issuer or to a nominee of such
successor to DTC. If at any time DTC notifies the Issuer that it is unwilling
or unable to continue as depository for the applicable global Security or
Securities or if at any time DTC ceases to be a clearing agency registered under
the Securities Exchange Act of 1934 if so required by applicable law or
regulation, the Issuer shall appoint a successor depository with respect to such
global Security or Securities. If (x) a successor depository for such global
Security or Securities is not appointed by the Issuer within 90 days after the
Issuer receives such notice or becomes aware of such unwillingness, 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 depository for such global Security or Securities, or (z)
the Issuer, in its sole discretion, determines at any time that all (but not
less than all) Outstanding Securities 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 Issuer shall execute, and the Trustee
shall authenticate and deliver, definitive Securities of like series, rank,
tenor and terms in a 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 otherwise entitled to
exchange such interest for Securities of such series and of like tenor and
principal amount of another authorized 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 without unnecessary
delay but in any event no later than the earliest date on which such interest
may be so exchanged, the Issuer shall execute, and the Trustee shall
authenticate 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 depository as shall be specified
in tile Issuer Order with respect thereto to the Trustee; 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
25
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 an portion of a permanent global Security
after the close of business at the office or agency where such exchange occurs
on (i) a Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) a Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of interest or Defaulted Interest, as the case may be,
will not be payable on such Interest Payment Date or proposed date or payment,
as the case may be, in respect of such Registered Security, but will 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 with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuer and the Guarantor,
respectively, 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, conversion or redemption shall (if so required by the
Issuer or the Security Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Issuer and the
Security Register, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Issuer 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 the mailing of the relevant notice of
redemption and (B) if such Securities are issuable as Bearer Securities, the day
of the 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 a Registered Security to
be redeemed in part, the portion thereof not selected for redemption may be
exchanged for a Registered Security of that series and of like tenor, provided
that such Registered Security shall be simultaneously surrendered for
redemption, or (iii) to issue, register the transfer of or exchange any Security
which has been surrendered for repayment at the option of the Holder, except
that portion, if any, of such Security which is not to be so repaid.
26
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. If any
mutilated Security or a Security with a mutilated coupon appertaining to it is
surrendered to the Trustee or the Issuer, together with, in proper cases, such
security or indemnity as may be required by the Issuer or the Trustee to save
each of them or any agent of either of them harmless, the Issuer shall execute
and the Trustee shall authenticate 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, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Issuer, the Guarantor (if the Security
is a Guaranteed Security) 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 either of them harmless, then, in the absence of written notice to the
Issuer, the Guarantor (if the Security is a Guaranteed Security) or the Trustee
that such Security or coupon has been acquired by a bona fide purchaser, the
Issuer shall execute and upon its request the Trustee shall authenticate 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 (with
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 with 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.
Notwithstanding 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 Issuer in its discretion may, instead of
issuing a new Security, with 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, if any),
any interest on and any Additional Amounts with 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.
Every new Security of any series with its coupons, if any, issued pursuant
to this Section in lieu of any mutilated, destroyed, lost or stolen Security, or
in exchange for a Security to which a mutilated, destroyed, lost or stolen
coupon may pertain, shall constitute an original additional contractual
obligation of the Issuer and the Guarantor (if the Security is a Guaranteed
Security), whether or not the mutilated, destroyed, lost or stolen Security and
its coupons, if and, or the mutilated, destroyed, lost or stolen coupon shall be
at any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of
that series and their coupons, if any, duly issued hereunder.
27
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to The replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHT PRESERVED. Except as
otherwise specified with respect to a series of Securities in accordance with
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 Issuer maintained
for such purpose pursuant to Section 1002; PROVIDED, HOWEVER, that each
installment of interest on any Registered Security may at the Holders 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 303, 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 with 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 with 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, with respect to that portion of such permanent
global Security held for its account by Cede & Co, 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 without 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 with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with 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 forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest shall be paid by the Issuer or the Guarantor (if the
Registered Security is a Guaranteed Security), as provided in clause (1) or (2)
below:
(1) The Issuer or the Guarantor (if the Registered Security is a
Guaranteed Security) may elect to make payment of any Defaulted Interest to
the Persons in whose
28
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 Issuer or the Guarantor (if the
Registered Security is a Guaranteed Security) 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 Issuer or the Guarantor (if the
Registered Security is a Guaranteed Security), as the case may be, shall
deposit with 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
not be more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Issuer or the Guarantor, as the case may be, of such Special Record
Date and, in the name and at the expense of the Issuer or the Guarantor, as
the case may be, 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 Issuer or the Guarantor,
as the case may be, cause a similar notice to be published at least once in
an Authorized 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 for transfer or
exchange at the office or agency in a Place of Payment for 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 without 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 with the provisions of this Indenture.
(2) The Issuer or the Guarantor (if the Security is a Guaranteed
Security) may make payment of any Defaulted Interest on the Registered
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on
29
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Issuer or the
Guarantor, as the case may be, 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 Issuer, the Guarantor (if
the Registered Security is a Guaranteed Security), the Trustee and any agent of
the Issuer, the Guarantor (if the Registered Security is Guaranteed Security) 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, 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 is overdue, and neither the Issuer nor
the Guarantor, the Trustee nor any agent, the Guarantor (if the Bearer Security
is a Guaranteed Security), of the Issuer, the Guarantor 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 Issuer the Guarantor (if the Bearer Security is a
Guaranteed Security), the Trustee and any agent of the Issuer, 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 is overdue, and neither the Issuer the Guarantor,
the Trustee nor any agent of the Issuer the Guarantor or, the Trustee shall be
affected by notice to the contrary.
None of the Issuer, 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.
Notwithstanding the foregoing, with respect to any global Security, nothing
herein shall prevent the Issuer, the Guarantor (if the Bearer Security is a
Guaranteed Security), the Trustee, or any agent of the Issuer, the Guarantor (if
the Bearer Security is a Guaranteed Security), or the Trustee, from giving
effect to any written certification, proxy or other authorization furnished by
any depository, as a Holder, with respect to such global Security or impair, as
between such depository and owners of beneficial interests in such global
Security, the operation of customary practices governing the exercise of the
rights of such depository (or its nominee) as 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 for credit
30
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
and Securities and coupons surrendered directly to the Trustee for any such
purpose shall be promptly canceled by it. The Issuer or the Guarantor (if the
Security is a Guaranteed Security) may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Issuer or the Guarantor (if the Security is a Guaranteed Security) 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 authenticated hereunder which the Issuer has not issued and sold,,
and all Securities so delivered shall be promptly canceled by the Trustee. If
the Issuer 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 authenticated in lieu of or in
exchange for any Securities canceled 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 Issuer and the Guarantor, unless by a
Issuer Order or Guarantor Order the Issuer or the Guarantor, as the case may be,
directs their return to it.
SECTION 310. COMPUTATION OF INTEREST. Except as otherwise specified as
contemplated by Section 301 with 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 FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture shall
upon an Issuer Request or a Guarantor Request (if the applicable series of
Securities is a series of Guaranteed Securities) cease to be of further effect
with respect to any series of Securities specified in such Issuer Request or
Guarantors 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 1010), and
the Trustee, upon receipt of a Issuer Order or Guarantor Order, and at the
expense of the Issuer and the Guarantor, shall execute proper instruments
acknowledging satisfaction and discharge of its Indenture as to such series when
(1) either:
(A) all Securities of such series theretofore authenticated 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
31
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 been deposited in trust or segregated and
held in trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any coupons pertaining 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 within one
year, or
(iii) if redeemable at the option of the Issuer, are to be called
for redemption within 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 Issuer and the Guarantor (if the Securities of
such series are Guaranteed Securities),
and the Issuer or the Guarantor (if the Securirties of such series are
Guaranteed Securities), in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as funds
in trust for such 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, if any) and
interest, and any Additional Amounts with 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; and
(2) the Issuer or the Guarantor (if the Securities of such series are
Guaranteed Securities) has paid or caused to be paid all other sums payable
hereunder by the Issuer and the Guarantor; and
(3) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel and the Guarantor has delivered to the Trustee a
Guarantor's Officers' Certificate (if the Securities of such series are
Guaranteed Securities), each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
as to such series have been complied with.
32
The obligations of the Issuer to the Trustee and any predecessor
Trustee under Section 606, the obligations of the Issuer to any
Authenticating Agent under Section 611 and, if money shall have been
deposited with 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 the satisfaction and
discharge of this Indenture.
SECTION 402. APPLICATION OF TRUST FUNDS. Subject to the provisions of the
last paragraph of Section 1003, all monies deposited with the Trustee pursuant
to Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons and this Indenture, to the payment,
either directly or through any Paying Agent but not in any event including the
Issuer acting as its own Paying Agent, as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any), and any
interest and Additional Amounts for whose payment such money has been deposited
with or received by the Trustee. Such money shall he segregated from other funds
of the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENT DEFAULT. "Event of Default," wherever used herein with
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, if any,
on) any Security of that series when it becomes due and payable at its
Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of any Security of that series; or
(4) default in the performance of, or breach of, any covenant or
warranty of the Issuer or the Guarantor (if the Securities of such series
are Guaranteed Securities) in
33
this Indenture with 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 501 specifically dealt with), 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 Issuer and the Guarantor (if the
Securities of such series are Guaranteed Securities) by the Trustee or to
the Issuer, the Guarantor (if the Securities of such series are Guaranteed
Securities) and the Trustee by the Holders of at least a majority in
principal amount of the Outstanding Securities of that series a written
notice specified such default or breach and requiring it to be remedied and
stating that such notice is a "NOTICE OF DEFAULT" hereunder; or
(5) a default under any bond, debenture, note or other evidence of
indebtedness of the Issuer, or the Guarantor (if the Securities of such
series are Guaranteed Securities) or under any mortgage, indenture or other
instrument of the Issuer or the Guarantor (if the Securities of such series
are Guaranteed Securities) (including a default with 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 Issuer or the Guarantor
(if the Securities of such series are Guaranteed Securities) (or by any
Subsidiary, the repayment of which the Issuer has Guaranteed or for which
the Issuer is directly responsible or liable as obligor or guarantor),
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 which shall
continue after the expiration of any applicable grace period with respect
thereto or shall have 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, without such indebtedness having been discharged, or such
acceleration having been rescinded or annulled, within a period of 10 days
after there shall have been given, by registered or certified mail, to the
Issuer or the Guarantor, as the case may be, by the Trustee or to the
Issuer or the Guarantor, as the case may be, and the Trustee by the Holders
of at least a majority in principal amount of the Outstanding Securities of
that series a written notice specifying such default and requiring the
Issuer or the Guarantor, as the case may be, 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
(6) the Issuer, the Guarantor (if the Securities of such series are
Guaranteed Securities) or any Significant Subsidiary pursuant to or within
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 for all or
substantially all of its property, or
34
(D) makes a general assignment for the benefit of its creditors; or
(7) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against the Issuer, the Guarantor (if the
Securities of such series are Guaranteed Securities) or any Significant
Subsidiary in an involuntary case, appoints a Custodian of the Issuer, or
the Guarantor (if the Securities of such series are Guaranteed Securities)
or any Significant Subsidiary or for all or substantially all of either of
its property, or
(B) orders the liquidation of the Issuer, the Guarantor (if the
Securities of such series are Guaranteed Securities) or any Significant
Subsidiary and the order or decree remains unstayed and in effect for 90
days; or
(8) any other Event of Default provided with 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 with 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 a majority 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 portion of the
principal as may be specified in the terms thereof) of all the Securities of
that series to be due and payable immediately, by a notice in writing to the
Issuer and the Guarantor (if the Securities are Guaranteed Securities) (and to
the Trustee if given by the Holders), and upon any such declaration such
principal or specified portion thereof shall become immediately due and payable.
At any time after such a declaration of acceleration with 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 not less than a majority in principal amount of
the Outstanding Securities of that series, by written notice to the Issuer and
the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Issuer or the Guarantor (if the Securities are Guaranteed
Securities) has paid or deposited with 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):
35
(A) all overdue installments of interest and any Additional
Amounts payable in respect of all Outstanding Securities of that
series and any related coupons,
(B) the principal of (and premium, 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 with respect to Securities of that series,
other than the nonpayment of the principal of (or premium, 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.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Issuer and the Guarantor (if the Securities are Guaranteed
Securities) covenants, in each case, that if:
(1) default is made in the payment of any installment of interest or
Additional Amounts, if any, on any Securities 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,
if any, on) any Security of any series at its Maturity,
then the Issuer or the Guarantor (if the Securities are Guaranteed Securities)
will, as the case may be, 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, if any) and interest and Additional Amounts thereon, with interest
upon any overdue principal (and premium, if any) and, to the extent that payment
of such interest shall be legally enforceable, upon any overdue installments of
interest or Additional Amounts thereon, if any, at the rate or rates borne by or
provided for in such Securities, and, in addition thereto, such further amount
shall be sufficient to cover the costs and expenses of
36
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agent and counsel.
If the Issuer or the Guarantor (if the Securities are Guaranteed
Securities) fails to pay such amounts forthwith 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 Issuer, the Guarantor (if the Securities are Guaranteed Securities) 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 Issuer or the Guarantor (if the Securities are Guaranteed
Securities) or any other obligor upon such Securities of such series, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series 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 PROOF OF CLAIM. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Issuer, the Guarantor (if the Securities are Guaranteed Securities) or any
other obligor upon the Securities or the property of the Issuer, the Guarantor
(if the Securities are Guaranteed Securities) 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 Issuer or the Guarantor (if the Securities are Guaranteed
Securities) for the payment of overdue principal of, premium, if any, or
interest on the Securities) shall be entitled and empowered, by intervention in
such proceeding or otherwise:
(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, 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 monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidation, 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 such payments are made
37
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 or 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 WITHOUT 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 without 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 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 and dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) and 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 finally paid:
FIRST: To the payment of all amounts due to the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium, 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, without preference or priority of any kind,
according to the aggregate amounts due and payable on such Securities and
coupons for principal (and premium, if any), interest and Additional Amounts,
respectively; and
THIRD: To the payment of the remainder, if any, to the Issuer.
SECTION 507. LIMITATION ON SUITS"SECTION507.LimitationonSuits""3". No
Holder of any Security of any series or any related coupon shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
38
(1) such Xxxxxx has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than a majority 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 reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal 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,
IF ANY, INTEREST AND ADDITIONAL AMOUNTS. Notwithstanding any other provision in
this Indenture, the Holder of any Security or coupon shall have the right which
is absolute and unconditional to receive payment of the principal of (and
premium, if any) and (subject to 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, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder of a Security 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 Issuer, the Guarantor (if the
Security is a Guaranteed Security), 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 position hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue as though no
such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities or coupons in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders of
Securities or coupons is intended to be exclusive of
39
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion nor 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 the
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, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series,
provided that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might expose it to
personal liability, without the receipt of reasonable indemnity from
Holders requesting such action, or be unduly prejudicial 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 with respect to such series and its
consequences, except a default
(1) 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
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of 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 waived, for every purpose
of this Indenture; but no such
40
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 Issuer and the
Guarantor, in each case, 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 anytime hereafter in force which may affect the
covenants or the performance of this Indenture, and the Issuer and the Guarantor
each (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 though no such law
had been enacted.
SECTION 515. UNDERTAKING FOR COSTS. All parties to this Indenture
acknowledge, and each Holder of any Security by his acceptance thereof shall be
deemed to have acknowledged, 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 an 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 faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than a majority 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 if any) or interest
on any Security on or after the respective Maturities expressed in such Security
(or, in the case of redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS. Within 90 days after the occurrence of
any default hereunder with 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 if any) or interest on or
any Additional Amounts or sinking fund installment with respect to the
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest 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(4) with
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 thereon. For the
purpose of this Section, the term "default" means any event
41
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to the Securities of such series.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of TIA
Sections 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
parities;
(2) any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by a Issuer Request or Issuer Order or of the
Guarantor mentioned herein shall be sufficiently evidenced by a Guarantor
Request or Guarantor Order (in each case, other than delivery of any
Security, together with any coupons appertaining thereto, to the Trustee
for authentication and delivery pursuant to Section 303 which shall be
sufficiently evidenced as provided therein) and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution or by the
Guarantor's Board of Directors may be sufficiently evidenced by a
Guarantor's Board Resolution or, if such matter pertains to the Guarantor,
a Guarantor's Officer's Certificate;
(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 to take any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with 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 faith and in reliance thereon,
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by 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 reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction,
42
(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 document, 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, it shall be entitled to examine
the books, records and premises of the Issuer and the Guarantor, personally
or by agent or attorney,
(7) the Trustee may execute any of the trusts of powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture.
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.
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. The
recitals contained herein and in the Securities, except the Trustee's
certificate of authorization, and in any coupons shall be taken as the
statements of the Issuer or the Guarantor (if the Securities are Guaranteed
Securities), as the case may be, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligation hereunder. Neither the Trustee nor the
Authenticating Agent shall be accountable for the use or application by the
Issuer of Securities or the proceeds thereof.
SECTION 604. MAY HOLD SECURITIES. The Trustee, any Paying Agent, Security
Registrar, Authenticating Agent or any other agent of the Issuer or the
Guarantor, 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 with the Issuer or the Guarantor with the same rights it
would have if it were not 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 with the Issuer.
43
SECTION 606. COMPENSATION AND REIMBURSEMENTT. The Issuer and the
Guarantor jointly and severally agree;
(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 with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to Trustee's negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its own part, arising out of or in
connection with 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 with the exercise or performance of any of
its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 505(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 Issuer and the
Guarantor 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 coupons.
The provisions of this Section shall survive the termination of this
Indenture.
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)(1) 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 a
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 forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
44
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Issuer and the
Guarantor (if the Securities are Guaranteed Securities). If an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Trustee and to the Issuer
and the Guarantor (if the Securities are Guaranteed Securities).
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Issuer, the Guarantor
(if the Securities are Guaranteed Securities) or by any Holder of a
Security who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 607(a) and
shall fail to resign after written request therefor by the Issuer, the
Guarantor (if the Securities are Guaranteed Securities) or by any Holder of
a Security who has been a bona fide Holder of a Security for at least six
months, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer by or pursuant to a Board Resolution or
the Guarantor (if the Securities are Guaranteed Securities), by or pursuant to a
Guarantor's Board Resolution, may remove the Trustee and appoint a successor
Trustee with 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 others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
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 reason with respect
to the Securities of one or more
45
series, the Issuer, by or pursuant to a Board Resolution, and the Guarantor (if
the Securities are Guaranteed Securities), by or pursuant to a Guarantor's Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series). If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Issuer, the Guarantor (if
the Securities are Guaranteed Securities) and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the
Issuer and the Guarantor (if the Securities are Guaranteed Securities). If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Issuer and the Guarantor (if the Securities are Guaranteed
Securities) 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 with respect to Securities of such
series.
(f) The Issuer shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series in the manner
provided for notices to the Holders of Securities in Section 106. Each notice
shall include the name of the successor Trustee with 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 with
respect to all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Issuer, the Guarantor and to the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, upon
request of the Issuer, the Guarantor 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.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Issuer, the
Guarantor (if any of such series of Securities is a series of Guaranteed
Securities) the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto, pursuant to Article Nine hereof, wherein each successor
Trustee shall
46
accept such appointment and which (i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (ii) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (iii) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the execution and
delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the right, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Issuer,
the Guarantor, if applicable, or any successor Trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the Issuer and the
Guarantor shall execute any and all instruments for a 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 ease 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 with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities or coupons shall have been
authenticated, 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 or coupons so authenticated with
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 either its own
47
name or that of its predecessor Trustee, with the full force and effect which
this Indenture provides for the certificate of authentication of the Trustee.
SECTION 611. APPOINTMENT OF AUTHENTICATION AGENT. At any time when any of
the Securities remain Outstanding, the Trustee may appoint an Authenticating
Agent or Agents with 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 instruction shall be promptly furnished to the Issuer.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Issuer and the Guarantor and,
except as may otherwise be provided pursuant to Section 301, shall at all times
be a bank or trust issuer 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 forth in its most recent report of condition so published. In case at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to 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, without 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, the
Guarantor and the Issuer. 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, the Guarantor and the Issuer. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee for such series may appoint a
successor Authenticating Agent which shall be acceptable to the Issuer and the
Guarantor and shall give notice of such appointment to
48
all Holders of Securities of the series with respect to which such
Authenticating Agent will service in the manner set forth in Section 106. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent
herein. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Issuer agrees and the Guarantor 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 with 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 within-mentioned Indenture.
[ ]
-----------------------------------
as Trustee
By:
---------------------------------
as Authenticating Agent
By:
---------------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, GUARANTOR AND ISSUER
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS. Every Holder
of Securities or coupons, by receiving and holding the same, agrees with the
Issuer, the Guarantor and the Trustee that neither the Issuer, the Guarantor 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 in
accordance with TIA 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).
49
SECTION 702. REPORTS BY TRUSTEE. Within 60 days after January 1 of each
year commencing with the first January 1 after the 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
January 1, if required by TIA Section 313(a).
SECTION 703. REPORTS BY ISSUER AND XXXXXXXXX. The Issuer and the
Guarantor will:
(1) file with the Trustee, within 15 days after the Issuer or the
Guarantor, as the case may be, is required to file the same with the
Commission, copies of the annual reports and of the information documents
and other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations prescribed)
which the Issuer or the Guarantor, as the case may be, may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Issuer or Guarantor, as the
case may be, is not required to file information, documents or reports
pursuant to either of such Sections, then it will file with the Trustee and
the Commission, in accordance with the rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Issuer or Guarantor ,as the case may be, with the conditions and
covenants of this Indenture as may be required from time to time by such
rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days
after the filing hereof with 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 Issuer or the Guarantor
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. ISSUER AND THE GUARANTOR TO FURNISH TO TRUSTEE NAMES AND
ADDRESSES OF HOLDERS. The Issuer and the Guarantor (with respect to Securities
of each series that are Guaranteed Securities, will furnish or cause to be
furnished to the Trustee:
(a) semi-annually, not later than 25 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 forth in the Board Resolution or indenture
supplemental hereto authorizing such series, and
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(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Issuer or the Guarantor (with respect to
Securities of each series that are Guaranteed Securities) of any such request, a
list of similar form and content as of a date not more than 15 days prior to the
time such list is furnished; PROVIDED, HOWEVER, that so long as the Trustee is
the Security Registrar, no such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
SECTION 801. ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. Nothing
contained in this Indenture or in any of the Securities shall prevent any
consolidation or merger of the issuer with or into any other Person or Persons
(whether or not affiliated with the issuer), or successive consolidations or
mergers in which either the Issuer will he the continuing entity or the Issuer
or its successor or successors shall be a party or parties, or shall prevent any
conveyance, transfer or lease of all or substantially all of the property of the
Issuer, to any other Person (whether or not affiliated with the Issuer);
provided, however, that:
(1) in case the Issuer shall consolidate with or merge into another
Person or convey, transfer or lease all or substantially all of its
properties and assets to any Person, the entity formed by such
consolidation or into which the Issuer is merged or the Person which
acquires by conveyance or transfer, or which leases, all or substantially
all of the properties of the Issuer shall be a Person organized arid
existing under the laws of the United States of America, any state thereof
or the District of Columbia and shall expressly assume, by an indenture (or
indentures if at such time there is more than one Trustee) supplemental
hereto, executed by the successor Person and the Guarantor and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of, any premium and interest on and any Additional
Amounts with respect to all the Securities and the performance of every
obligation in this Indenture and the Outstanding Securities on the part of
the Issuer to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default or event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) either the Issuer or the successor Person shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, transfer or lease and,
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such transaction
have been complied with.
No such consolidation, merger, conveyance, transfer or lease shall be permitted
by this Section
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unless prior thereto the Guarantor shall have delivered to the Trustee a
Guarantor's Officers' Certificate and an Opinion of Counsel, each stating that
the Guarantor's obligations hereunder shall remain in full force and effect
thereafter.
SECTION 802. SUCCESSOR PERSON SUBSTITUTED FOR ISSUER. Upon any
consolidation by the Issuer with or merger of the Issuer into any other Person
or any conveyance, transfer or lease of all or substantially all of the
properties and assets of the Issuer to any Person in accordance with Section
801, the successor Person formed by such consolidation or into which the Issuer
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Issuer under this Indenture with the same effect as if such successor Person had
been named as the Issuer herein; and thereafter, except in the case of a lease,
the predecessor Person shall be released from all obligations and covenants
tinder this Indenture, the Securities and the Coupons.
SECTION 803. GUARANTOR MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
Nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of the Guarantor with or into any other Person or
Persons (whether or not affiliated with the Guarantor), or successive
consolidations or mergers in which either the Guarantor will he the continuing
entity or the Guarantor or its successor or successors shall be a party or
parties, or shall prevent any conveyance, transfer or lease of all or
substantially all of the property of the Guarantor, to any other Person (whether
or not affiliated with the Guarantor); provided, however, that:
(1) in case the Guarantor shall consolidate with or merge into
another Person or convey, transfer or lease all or substantially all of its
properties and assets to any Person, the entity formed by such
consolidation or into which the Guarantor is merged or the Person which
acquires by conveyance or transfer, or which leases, all or substantially
all of the properties and assets of the Guarantor shall be a Person
organized and existing under the laws of the United States of America, any
stale thereof or the District of Columbia and shall expressly assume, by an
indenture (or indentures, if at such time there is more than one Trustee)
supplemental hereto, executed and delivered by the Issuer and the successor
Person to the Trustee, in form satisfactory other Trustee, the obligation
of the Guarantor under the Guarantee and the performance of every other
covenant of this Indenture on the part of the Guarantor to be performed or
observed;
(2) immediately after giving effect to such transaction, no Event of
Default and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(3) each of the Guarantor arid the successor Person has delivered to
the Trustee a Guarantor's Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer or lease
and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
52
SECTION 804. SUCCESSOR PERSON SUBSTITUTED FOR XXXXXXXXX. Upon any
consolidation or merger or any conveyance, transfer or lease of all or
substantially all of the properties and assets of the Guarantor to any Person in
accordance with Section 803, the successor Person formed by such consolidation
or into which the Guarantor is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Guarantor under this Indenture with the same effect as
if. it such successor Person had been named as the Guarantor herein, and
thereafter, except in the case of a lease to another Person, the predecessor
Person shall be released from all obligations and covenants under this
indenture.
SECTION 805 ASSUMPTION BY GUARANTOR. The Guarantor, or a subsidiary
thereof that is a Corporation, may directly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of, any premium and
interest on and any Additional Amounts with respect to all the Guaranteed
Securities and the performance of every covenant of this Indenture on the part
of the Issuer to be performed or observed. Upon any such assumption, the
Guarantor or such subsidiary shall succeed to, and be substituted for and may
exercise every right and power of, the Issuer under this Indenture with the same
effect as if the Guarantor or such subsidiary had been named as the Issuer
herein and the Issuer shall be released from all obligations and covenants with
respect to the Guaranteed Securities. No such assumption shall be permitted
unless the Guarantor has delivered to the Trustee (i) a Guarantor's Officers'
Certificate and an Opinion of Counsel, each stating that such assumption and
supplemental indenture comply with this Article, and that all conditions
precedent herein provided for relating to such transaction have been complied
with and that, in the event of assumption by a subsidiary, the Guarantee and all
other covenants of the Guarantor herein remain in full force and effect and (ii)
an opinion of independent counsel that she Holders of Guaranteed Securities or
related Coupons (assuming such orders are only taxed as residents of the United
States) shall have no United States federal tax consequences as a result of such
assumption, and that, if any Securities are then listed on the New York Stock
Exchange, that such Securities shall not be delisted as a result of such
assumption.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. Without
the consent of any Holders of Securities or coupons, the Issuer (when authorized
by or pursuant to a Board Resolution), the Guarantor (when authorized by a
Guarantor's Board Resolution) and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, for any of the
following purposes;
(1) to evidence the succession of another Person to the Issuer or the
Guarantor and the assumption by any such successor of the covenants of the
Issuer or the Guarantor, as the case may be, herein and in the Securities
contained; or
53
(2) to add to the covenants of the Issuer or the Guarantor 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 power herein conferred
upon the Issuer or the Guarantor; 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 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 registerable as to principal, to
change or eliminate any 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 of 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 establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 202 and 301, including the
provisions and procedures relating to Securities convertible into Common
Stock or Preferred Stock, as the case may be; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee; or
54
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
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 of 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 Sections 401, 1402 and
1403; 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 if any material respect; or
(11) to effect the assumption by the Guarantor or a subsidiary thereof
pursuant to Section 805; or
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities of any series, by Act of said Holders delivered to the
Issuer, the Guarantor (if Securities are Guaranteed Securities) and the Trustee,
the Issuer (when authorized by or pursuant to a Board Resolution) the Guarantor
(when authorized by or pursuant to a Guarantor's Board Resolution) if
applicable, 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, as it relates
to such series or of modify in any manner the rights of the Holders of
Securities of such series and any related coupons under this Indenture;
PROVIDED, HOWEVER, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium, if
any, on) or any installment of principal of or interest on, any 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 Issuer to pay Additional Amounts pursuant to Section 1010 (except as
contemplated by Section 801(i) and permitted by Section 901(1)), or reduce
the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 or the amount 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 the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Maturity thereof (or, in the ease 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
55
(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 with respect to such series (or compliance with certain
provisions of this indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirement of
Section 1504 for quorum or voting, or
(3) modify or effect in any manner adverse to the Holders the terms
and conditions of the obligations of the Guarantor in respect of the due
and punctual payments of principal of, or any premium or interest on or any
sinking fund requirements or Additional Amounts with respect to, Guaranteed
Securities, or
(4) modify any of the provisions of this Section, Section 513 or
Section 1008, 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 without 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 with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
SECTION 903. EXECUTION OF SUPPLEMENT 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 stating that the execution of
such supplemental indenture is 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 OF SUPPLEMENTAL INDENTURES. Upon the execution of an
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
56
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of an
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 Issuer shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Issuer, to any such supplemental indenture may be prepared and
executed by the Issuer and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, INTEREST AND
ADDITIONAL AMOUNTS. The Issuer 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, if any) and interest on and any Additional Amounts
payable in respect of the Securities of that series in accordance with the terms
of such series of Securities; and coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of a 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 1010 in respect
of principal of (or premium, 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 with respect to Securities of any series pursuant to Section 301, at
the option of the Issuer, 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 Issuer or the Guarantor (if any
Guaranteed Securities are Outstanding) shall maintain in each Place of Payment
for any series of Securities (but not Bearer Securities, except as otherwise
provided in clause (B) below, unless such place of payment is located outside
the United States) 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 Issuer or the Guarantor (if any of the
Guaranteed Securities are Outstanding) 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 Issuer or the Guarantor (if any of the Guaranteed
Securities are Outstanding) 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
57
notices and demands to or upon the Issuer 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 and laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States, an
office or agency where Securities of that series and related coupons may be
presented and surrendered for payment (including payment of any Additional
Amounts payable on Securities of that series pursuant to Section 1010) or
conversion; PROVIDED, HOWEVER, that if the Securities of that series are listed
on The Stock Exchange of the United Kingdom and the Republic of Ireland or the
Luxembourg Stock Exchange or an other stock exchange located outside the United
States and such stock exchange shall so require, the Issuer or the Guarantor (if
any Guaranteed Securities are Outstanding) will maintain a Paying Agent for the
Securities of that series in London, 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 Issuer in respect of the Securities of that series and this Indenture
may be served. The Issuer and the Guarantor (if any Guaranteed Securities are
Outstanding) 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
Issuer or the Guarantor (if any Guaranteed Securities are Outstanding) shall
fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereto, such presentations, surrenders, notices and
demands 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 1022) or
conversion at the offices specified in the Security in London, England; and the
Issuer and the Guarantor (if any Guaranteed Securities are Outstanding) hereby
appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands, and the Issuer and the Guarantor (if any
Guaranteed Securities are Outstanding) hereby appoints the Trustee its agent to
receive all such presentations, surrenders, notices and demands.
58
Unless otherwise specified with 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 Issuer or the Guarantor (if any Guaranteed Securities are Outstanding) in
the United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
PROVIDED, HOWEVER, that, if the Securities of a series are payable in Dollars,
payment of principal and any premium and interest on any Bearer Security
(including any additional Amounts Payable on Securities of such series pursuant
to Section 1010) shall be made at the office of the Issuer's or the Guarantor
(if any Guaranteed Securities are Outstanding) 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, interest or Additional Amounts, as the case
may be, at all offices or agencies outside the United States maintained for such
purpose by the Issuer in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Issuer or the Guarantor (if any Guaranteed Securities are Outstanding)
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 designation; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve the
Issuer or the Guarantor (if any Guaranteed Securities are Outstanding) of its
obligation to maintain an office or agency in accordance with the requirements
set forth above for Securities of any series for such Purposes. The Issuer or
the Guarantor (if any Guaranteed Securities are Outstanding) 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 with respect to any Securities pursuant to Section 301 with respect to
a series of Securities, the Issuer and the Guarantor (if any Guaranteed
Securities are Outstanding) hereby designates as a Place of Payment for each
series of Securities the office or agency of the Issuer or the Guarantor (if any
Guaranteed Securities are Outstanding) in the Borough of Manhattan, the City of
New York, and initially appoints the Trustee at its Corporate Trust Office as
Paying Agent in such city and as its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 302, 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 this Indenture, then the Issuer will
maintain with 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
Issuer shall at any time act as its own Paying Agent with respect to any series
of any Securities and any related coupons, it will, by no later than 11:00 a.m.
Eastern Time on the day prior to each due date of the principal of (and premium,
if any), or interest on or Additional Amounts in respect of, any of the
Securities of that series, segregate and holder 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
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premium, if any) or interest or Additional Amounts so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided,
and will promptly notify the Trustee of its action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents for any series of
Securities and any related coupons, it will, on or before each due date of the
principal of (and premium, if any), or interest on or Additional Amounts in
respect of any Securities of that Series, deposit with 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, if any) or interest or Additional Amount, 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 Issuer will promptly notify the Trustee of its action
or failure so to act.
The Issuer 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
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of principal or (and
premium, if any) or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Issuer or the
Guarantor (or any other obligor upon the Securities) in the making of any
such payment of principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Issuer or the Guarantor (with Securities that are Guaranteed
Securities) may at any time, for the purpose of obtaining the satisfaction and
discharge of this indenture or for any other purpose, pay, or by Issuer Order or
Guarantor Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuer or such Paying Agent, such sums to be held by the Trustee
upon the same terms as those upon which such sums were held by the Issuer or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Issuer in
trust for the payment of the principal of (and premium, 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, if any),
interest or Additional Amounts has become due and payable shall be paid to the
Issuer upon Issuer Request (or if deposited by the Guarantor, paid to the
Guarantor or Guarantor Request), or (if then held by the Issuer) shall be
discharged from such trust; and the Holder of
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such Security shall thereafter, as an unsecured general creditor, look only to
the Issuer and the Guarantor (if the Securities are Guaranteed Securities) for
payment of such principal of (and premium, it any) or interest on, or any
Additional Amounts in respect of such Security, without interest thereon, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Issuer 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 Issuer 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 such money
then remaining will be repaid to the Issuer or the Guarantor, as the case may
be.
SECTION 1004. EXISTENCE. Subject to Article Eight, the Issuer and the
Guarantor will do or cause to be done all things necessary to preserve and keep
in full force and effect its existence, rights (declaration and statutory) and
franchises; PROVIDED, HOWEVER, that the Issuer or the Guarantor shall not be
required to preserve any right or franchise if the Board or the Guarantor's
Board of Directors, respectively, shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the issuer and that the
loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. STATEMENT AS TO COMPLIANCE. The Issuer and the Guarantor
will each deliver to the Trustee, within 120 days after the end of each of their
respective fiscal year, a brief certificate from the principal executive
officer, principal financial officer or principal accounting officer of the
General Partner or the Guarantor, respectively, as to his or her knowledge of
the Issuer's or the Guarantor's compliance with 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
1006, such compliance shall be determined without regard to any period of grace
or requirement of notice under this Indenture.
SECTION 1006. MAINTENANCE OF PROPERTIES. The Issuer shall cause all of
its material 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, all as in the judgment of the Issuer may be necessary so that
the business carried on in connection therewith may be properly and
advantageously conducted at all times; PROVIDED, HOWEVER, notwithstanding
anything herein to the contrary, the Issuer and its Subsidiaries may sell or
otherwise dispose of any of their properties for value in the ordinary course of
business.
SECTION 1007. INSURANCE. The Issuer shall cause each of its properties
and each of the properties of its Subsidiaries to be insured against loss of
damage with insurers of recognized responsibility, in commercially reasonable
amounts and types and with insurers having a specified rating from a recognized
insurance rating service as may be specified as contemplated by Section 301.
SECTION 1008. PAYMENT OF TAXES AND OTHER CLAIMS. The Issuer and the
Guarantor shall pay or discharge or cause to be paid or discharged, before the
same shall become delinquent (i) all taxes, assessments and governmental charges
levied or imposed upon the Issuer, the Guarantor or any Subsidiary or upon the
income, profits or property of the Issuer, the
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Guarantor or any Subsidiary, and (ii) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon property of the
Issuer, the Guarantor or any Subsidiary; PROVIDED, HOWEVER, notwithstanding
anything herein to the contrary that neither, the Issuer nor the Guarantor shall
not be required to pay or discharge or cause to be paid or discharged any tax,
assessment, charge or claim whose amount or applicability is being contested in
good faith.
SECTION 1009. ADDITIONAL AMOUNTS. If any Securities of a series provide
for the payment of Additional Amounts, the Issuer and the Guarantor (if the
Securities are Guaranteed Securities) will pay to the Holder of any Security of
such series or any upon 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 statement 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 such series established pursuant to Section 301 to the extent that, in
such context, Additional Amounts are, were or would be payable in respect
thereof pursuant to such terms and express mention of the payment of Additional
Amounts (if applicable) in any provisions 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 least
20 days prior to the first Interest Payment Date with 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 with respect to the matters set forth
in the below-mentioned Officers' Certificate, the Issuer or the Guarantor, as
the case may be, will furnish the Trustee and the Issuer's principal Paying
Agent or Paying Agents, if other than the Trustee, with 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 without withholding for or on account
of any tax, assessment or other governmental charge described in the Securities
of the series. If any such withholding shall be required, then such Officers
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities of that series or related coupons
and the Issuer and the Guarantor (if the Securities are Guaranteed Securities)
will pay to the Trustee or such Paying Agent the Additional Amounts required by
the terms of such Securities. In the event that the Trustee or any Paying
Agent, as the case may be, shall not so receive the above-mentioned certificate
then the Trustee or such Paving Agent shall be entitled (i) to assume that no
such withholding or deduction is required with respect to any payment of
principal or interest with 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 with respect to the Securities of
a series or related coupons without withholding or deductions until otherwise
advised. The Issuer and the Guarantor each covenant to indemnify the Trustee
and any Paying
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Agent for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them or in reliance on
any officers, Certificate finished pursuant to this Section or in reliance on
the Issuer or the Guarantor not furnishing such an Officers' Certificate.
SECTION 1010. WAIVER OF CERTAIN COVENANTS. The Issuer or the Guarantor,
as the case may be, may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1004 or 1005, before or after the
time for such compliance the Holders of at least a majority in principal amount
of all Outstanding Securities of each series, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Issuer and the Guarantor
and the duties of the Trustee in respect of an such term, provision or condition
shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE. Securities of any series which
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section
301 for Securities of any series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of the
Issuer to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Issuer of less than
all of the Securities of any series, the Issuer 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 in its sole discretion), 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 Issuer shall furnish the Trustee
with an Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. If less
than all the Securities of any series 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
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series or a denomination larger than the minimum authorized denomination
for Securities or that series. The Trustee shall promptly notify the Issuer and
the Security Registrar (if other than itself) in writing of the
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Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be reviewed 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 and may be further specified in an
indenture supplemental hereto, 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 failure to give such notice in the manner herein provided to
the Holder any Security designated for redemption as a whole or in part, or any
defect in the notice to any such Holder, shall not affect the validity of the
proceedings for the redemption of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not a 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, without
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price 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
thereof, to be redeemed and, if applicable, that interest thereon 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 with all coupons appertaining thereto, if
any, maturing after the
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Redemption Date, are to be surrendered for payment of the Redemption Price
and accrued interest, if any, or for conversion,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be accompanied by
all coupons maturing subsequent to the Redemption Date or the amount of any
such missing coupon or coupons will be deducted from the Redemption Price,
unless security or indemnity satisfactory to the Issuer, the Trustee for
such series and any Paying Agent is finished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of any such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on this Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Issuer, on which such
exchanges may be made,
(10) the CUSIP number of such Security, if any, and
(11) 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
Issuer or, at the Issuer's request, by the Trustee in the name and at the
expense of the Issuer.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. On or prior to 11:00 a.m.
Eastern Time on the date prior to any Redemption Date, the Issuer shall deposit
with the Trustee or with a Paying Agent (or, if the Issuer is acting as its own
Paying Agent, which it may not do in the case of a sinking fund payment under
Article Twelve, 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 pa on the Redemption Date the
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 far the Securities of
such series) (together with accrued interest, if any, to the Redemption Date),
and from and after such date (unless the Issuer shall default in the payment of
the Redemption Price and accrued interest) such
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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 with said notice, together with
all coupons if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Issuer at the Redemption Price, together with
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
representation and surrender of coupons for such interest; and PROVIDED,
FURTHER, that except as otherwise provided with respect to Securities
convertible into Common Stock or Preferred Stock, installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
predecessor Securities registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section 307
if any Bearer Security surrendered for redemption shall not be accompanied by
all 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 mining coupons, or the surrender of such missing coupon or
coupons may be waived by the Issuer 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 thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent ally 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 an Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, 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 or of
Article Twelve) shall be surrendered at a Place of Payment therefor (with, if
the Issuer or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuer and the Trustee duly
executed by the Holder thereof or his attorney duly authorized in writing) and
the Issuer shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without 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.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 301 for
Securities of such series. The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of such Securities of any series is herein
referred to as an "optional sinking fund payment". If provided for by the terms
of any Securities of any series, the cash amount of any mandatory sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENT WITH SECURITIES. The
Issuer may, in satisfaction of all or any part of any mandatory sinking fund
payment with respect to the Securities of a series, (1) deliver Outstanding
Securities of such series (other than any previously called for redemption)
together in the case of any Bearer Securities of such series with any unmatured
coupons appertaining thereto and (2) apply as a credit Securities of such series
which have been redeemed either at the election of the Issuer pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, as provided for
by the terms of such Securities, or which have otherwise been acquired by the
Issuer; provided that such Securities so delivered or applied as a credit have
not been previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the applicable Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than 60
days prior to each sinking and payment date for Securities of any series, the
Issuer will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, or portion thereof; if any, which is to be
Satisfied by payment of cash 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) and the portion thereof; if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuring mandatory
sinking fund payment, the Issuer shall thereupon be obligated to pay the amount
therein specified. Not less than 30 days before each such Sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereto to be given in the name of and at the expense of the
Issuer in the manner provided in Section
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1104. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
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 with 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 with 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 provided in the terms of such Securities, be repaid at a price
equal to the principal amount thereof; together with interest, if any, thereon
accrued to The Repayment Date specified in or pursuant to the terms of such
Securities. The Issuer covenants that on or the day prior to the Repayment Date
it will deposit with the Trustee or with a Paying Agent (or, if the Issuer 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 case 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 therefor specified in the terms of such Security (or at such other place
or places of which the Issuer 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 any such repayment together
with 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 Issuer in the United States setting
forth 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 with 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 fifth 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
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duly completed are received by the Trustee by such fifth Business Day. If less
than the entire principal amount of such Security is to be repaid in accordance
with 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,
shall be stated in a writing issuing such Security. 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 Issuer.
SECTION 1304. WHEN SECURITIES PRESENTED FOR RECIPIENT BECOME DUE AND
PAYABLE. If Securities of any series providing for 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 portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Issuer on the Repayment Date therein specified,
and on and after such Repayment Date (unless the Issuer 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 with such provisions, together with all coupons, if any,
appertaining thereto maturing after the Repayment Date, the principal amount of
such Security so to be repaid shall be paid by the Issuer, together with accrued
interest, if any, to the Repayment Date; PROVIDED, HOWEVER, that coupons whose
Stated Maturity is on or prior to the Repayment 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 pursuant to Section 301, only
upon presentation and surrender of such coupons; and PROVIDED, FURTHER, 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
without interest thereon, unless the Issuer shall default in the payment
thereof) to the Holders of such Securities, or one or more predecessor
Securities, registered as such as the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for 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 issuer 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 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 upon 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 with
interest, if any, thereon accrued to
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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 PARTT. Upon surrender of any
Registered Security which is to be repaid in part only, the Issuer shall execute
and the Trustee shall authenticate and deliver to the Holder of such Security,
without charge and at the expense of the Issuer9 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 FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. APPLICABILITY OF ARTICLE; ISSUER'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE. If; pursuant to Section 301, provision is
made for either or both of (a) defeasance of the Securities of a series under
Section 1402 or (b) covenant defeasance of the Securities of a series under
Section 1403, then the provisions of such Section or Sections, as the case may
be, together with the other provisions of this Article (with such modifications
thereto as may be specified pursuant to Section 301 with respect to any
Securities), shall be applicable to such Securities and any coupons appertaining
thereto, and the Issuer may at its option by Board Resolution, at any time, with
respect to such Securities and any coupons appertaining thereto, elect to have
Section 1402 (if applicable) or Section 1403 (if applicable) be applied to such
Outstanding Securities and any coupons appertaining thereto upon compliance with
the conditions set forth below in this Article.
SECTION 1402. DEFEASANCE AND DISCHARGE. Upon the Issuer's exercise of the
above option applicable to this Section with respect to any Securities of a
series, the Issuer shall be deemed to have been discharged from its obligations
with respect to such Outstanding Securities and any coupons appertaining thereto
on the date the conditions set forth in Section 1404 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Issuer shall be
deemed to have paid and discharged the entire indebtedness represented by such
Outstanding Securities and any coupons appertaining thereto, which shall
thereafter be deemed to be "Outstanding" only for the purposes of Section 1405
and the other Sections of this Indenture referred to in clauses (A) and (B)
below, and to have satisfied all of its other obligations under such Securities
and coupons appertaining thereto and this Indenture insofar as such Securities
and any coupons appertaining thereto are concerned (and the Trustee, at the
expense of the Issuer, shall execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of such Outstanding Securities
and any coupons appertaining thereto 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, if any) and interest, if any, on
such Securities and any coupons appertaining thereto when such payments are due,
(B) the Issuer' s
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obligations with respect to such Securities under Sections 305, 306, 1002 and
1003 and with respect to the payment of Additional Amounts. if any, on such
Securities as contemplated by Section 1010, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article Fourteen.
Subject to compliance with this Article Fourteen, the Issuer may exercise its
option under this Section notwithstanding the prior exercise of its option under
Section 1403 with respect to such Securities and any coupons appertaining
thereto.
SECTION 1403. COVENANT DEFEASANCE. Upon the Issuer's exercise of the
above option applicable to this Section with respect to any Securities of a
series, each of the Issuer and the Guarantor (if the Securities are Guaranteed
Securities) shall be released from its obligations under Sections 1004 and 1005
and, if specified pursuant to Section 301, its obligations under any other
covenant, with respect to such Outstanding Securities and any coupons
appertaining thereto and the Guarantee in respect thereof (if the Securities are
Guaranteed Securities), on and after the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "covenant defeasance"), and such
Securities and any coupons appertaining thereto shall thereafter be deemed to be
not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with Sections 1004 and 1605 or such other covenant but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding
Securities and any coupons appertaining thereto, the Issuer and the Guarantor,
if applicable, may omit to comply with and shall have no liability in respect of
any term, condition or imitation set forth in any such Section or such other
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to an such Section or such other covenant or by reason of reference in
any such Section or such other covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a default or an
Event of Default under Section 501(4) or 501(9) or otherwise, as the case may
be, but except as specified above, the remainder of this Indenture and such
Securities and any coupons appertaining thereto and the Guarantee in respect
thereof (if the Securities are Guaranteed Securities), 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 a series and any coupons appertaining thereto
and the Guarantor in respect thereof (if the Securities are Guaranteed
Securities),
(a) The Issuer or the Guarantor (if the Securities are Guaranteed
Securities) shall irrevocably have deposited or caused to be deposited with
the Trustee (or another trustee satisfying the requirements of Section 607
who shall agree to comply with the provisions of this Article Fourteen
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities and any coupons
appertaining thereto, (1) an amount in such currency, currencies or
currency unit in which such Securities and any coupons appertaining hereto
are then specified as payable at Stated Maturity) which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment of principal of (and premium, if any) and interest,
it any, on such
71
Securities and any coupons appertaining thereto, or (2) a combination of
currency, currencies or currency units in an amount, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) the principal (and premium,
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 and (ii) any mandatory sinking fund
Payments or analogous payments applicable to such Outstanding Securities
any coupons appertaining thereto on the day on which such payments are due
and payable in accordance with the terms of this Indenture and of such
Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Issuer or the
Guarantor (if the Securities are Guaranteed Securities) is a party or by
which it is bound.
(c) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to such Securities
and any coupons appertaining thereto 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 the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfies until the expiration of such period).
(d) In the case of an election under Section 1402, the Issuer or the
Guarantor (if the Securities are Guaranteed Securities) shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the Issuer
or the Guarantor (if the Securities are Guaranteed Securities) has received
from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of execution of this Indenture, there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Holders or such Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss or Federal income tax purposes as a
result of such defeasance and will 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 Issuer or the
Guarantor (if the Securities are Guaranteed Securities) shall have
delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax purposes as
a result of such covenant defeasance and will 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.
72
(f) The Issuer or the Guarantor (if the Securities are Guaranteed
Securities) shall have delivered to the Trustee an Officers' Certificate or
a Guarantor's Officer's Certificate and an Opinion of Counsel, each
stating that all conditions precedent to the defeasance under Section 1402
or the covenant defeasance under Section 1403 (as the cue may be) have been
complied with and an Opinion of Counsel to the effect that either (i) as a
result of a deposit pursuant to subsection (a) above and the related
exercise of the Issuer's option under Section 1402 or Section 1403 (as the
case may be), registration is not required under the Investment Issuer Act
of 1940, as amended, by the Issuer, with respect to the trust xxxxx
representing such deposit or by the Trustee for such trust funds or (ii)
all necessary registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Issuer or the Guarantor (if the Securities are Guaranteed
Securities) in connection therewith pursuant to Section 301.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the Proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
if any premium) and interest an Additional Amounts, if any, but such money be
not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to an Security pursuant to Section
301, if after a deposit referred to in Section 1404(a) has been made, (a) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 301 or the terms of such Security to receive
payment in a currency or currency unit other 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, the indebtedness represented
by such Security and any coupons appertaining thereto shall be deemed to have
been, and will be fully discharged and satisfied through the payment of the
principal of (and premium, if any), and interest, if any, on such Security as
the same becomes due out of the proceeds yielded by converting (from time to
time as specified below in the case of any such election) the amount or other
property deposited in respect of such Security into the currency or currency
unit in which such Security becomes payable as a result of such election 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, or,
73
with respect to a Conversion Event, in effect for such currency or currency unit
(as nearly as feasible) at the time of the Conversion Event.
The Issuer shall pay and indemnify the Trustee against any taxi fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which bylaw is for the
account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Issuer from time to time upon Issuer Request, or the
Guarantor, as the case may be, upon the Guarantor Request, any money or
Government Obligations (or other property and any proceeds therefrom) 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 the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect a defeasance or covenant
defeasance, as applicable, in accordance with this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make give or take any request, demand,
authorization, direction, notice, consent, waiver or other 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 the Borough of Manhattan, The City of New York or, if
Securities of such series have been issued in whole or in part as Bearer
Securities, in London as the Trustee shall determine. Notice of every meeting
of Holders of Securities of any series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 106, not less than 21
nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Issuer (pursuant to a Board Resolution) the
Guarantor (if the Securities are Guaranteed Securities) pursuant to a
Guarantors' Board Resolution or the Holders of at least twenty-five percent
(25%) in principal amount of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1501, by written request setting
forth in
74
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have made the first mailing of the notice of such meeting
within 21 days after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Issuer, the Guarantor,
if applicable, or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York or, if Securities of such series have
been issued in whole or in part as Bearer Securities, in London for such meeting
and may call such meeting for such purposes of waiving notice thereof as
provided in subsection (a) of this Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to vote
at any meeting of Holders of Securities of any series, a perSON shall be (1) a
Holder of one or more Outstanding Securities of such series, or (2) a Person
appointed by an instrument in writing as Proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel, any representatives of the Guarantor and its counsel and any
representatives of the Issuer and its counsel.
SECTION 1504. QUORUM; ACTION. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; PROVIDED, HOWEVER,
that if any action is to be taken at such meeting with respect to a consent or
waiver which this indenture expressly provides may be given by the Holders of
not less than a specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes after the
time appointed for any such meeting, the meeting shall, if convenes at the
request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of any adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in principal amount of the outstanding Securities of that series; PROVIDED,
HOWEVER, that, except as limited by the provisions of Section 902, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the
75
Outstanding Securities of such a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
by the affirmative vote of the Holders of such specified percentage in principal
amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting. Notwithstanding the
foregoing provisions of this Section 1504, if any action is to be taken at a
meeting of Holders of Securities of any series with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action that
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 thereby, or of the Holders of such series and one or more additional
series:
(i) there shall be no minimum quorum requirement for such meeting;
and
(ii) the principal amount of the Outstanding Securities of such series
that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made1 given or taken under this
Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHT; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) Notwithstanding any provisions of this Indenture, the 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 the holding of
Securities of such series and of the appointment of proxies and in regard
to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the Conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved
in the manner specified in Section 104 or having the nature of the Person
executing the proxy witnessed or guaranteed by any trust Issuer, bank or
banker authorized by Section 104 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid or genuine
without the proof specified in Section 104 or other proof
(b) The Trustee shall, by an instrument m writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Issuer or by Holders of Securities as provided in Section l502(b), in which
case the Issuer or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary
76
of the meeting shall be elected by vote of the Persons entitled to vote a
majority in principal amount of the Outstanding Securities of such series
represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding 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 ailed by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 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
the Outstanding Securities of such series represented at the meeting, and
the meeting may he so adjourned without further notice.
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETING The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding Securities of
such series held or re resented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of Holders of Securities of any Series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the fact, setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 1502 and, if applicable, Section 1504. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Issuer and the Guarantor
and another to the Trustee to be reserved by the Trustee the latter to have
attached thereto the Ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
This Indenture may be executed in any number of counterparts, each of which
when so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
ARTICLE SIXTEEN
GUARANTEE
77
SECTION 1601. GUARANTEE. The Guarantee set forth in this Article Sixteen
shall only be in effect with respect to Securities of a series to the extent
such Guarantee is made applicable to such series in accordance with Section 301.
The Guarantor hereby unconditionally guarantees to each Holder of a Guaranteed
Security authenticated and delivered by the Trustee the due and punctual payment
of the principal of, any premium and interest on, and any Additional Amounts
with respect to such Guaranteed Security and the due and punctual payment of the
sinking fund payments (if any) provided for pursuant to the terms of such
Guaranteed Security, when and as the same shall become due and payable, whether
at maturity, by acceleration, redemption, repayment or otherwise, in accordance
with the terms of such Security and of this Indenture. In case of the failure
of the Issuer punctually to pay any such principal, premium, interest,
Additional Amounts or sinking fund payment, the Guarantor hereby agrees to cause
any such payment to be made punctually when and as the same shall become due and
payable, whether at maturity, upon acceleration, redemption, repayment or
otherwise, and as if such payment were made by the Issuer.
The Guarantor hereby agrees that is obligations hereunder shall be as
principal and not merely as surely, and shall be absolute, irrevocable and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any Guaranteed Security or this Indenture,
any failure to enforce the provisions of any Guaranteed Security or this
Indenture, or any waiver, modification, consent or indulgence granted with
respect thereto by the Holder of such Guaranteed Security or the Trustee, the
recovery of any judgment against the Issuer or any action to enforce the same,
or any other circumstances which may otherwise constitute a legal or equitable
discharge of a surety or guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger, insolvency or bankruptcy of the Issuer, any right to require a
proceeding first against the Issuer, protest or notice with respect to any such
Guaranteed Security or the Indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be discharged except by
payment in full of the principal of, any premium and interest on, and any
Additional Amounts and sinking fund payments required with respect to, the
Guaranteed Securities and the complete performance of all other obligations
contained in the Guaranteed Securities.
This Guarantee shall continue to be effective or be reinstated, as the case
may be, if at any time payment on any Guaranteed Security, in whole or in part,
is restricted or must otherwise be restored to the Issuer or the Guarantor upon
the bankruptcy, liquidation or reorganization of the Issuer or otherwise.
The Guarantor shall be subrogated to all rights of the Holder of any
Guaranteed Security against the Issuer in respect of any amounts paid to such
Holder by the Guarantor pursuant to the provisions of this Guarantee; PROVIDED,
HOWEVER, that the Guarantor shall not be entitled to enforce, or to receive any
payments arising out of or based upon, such right of subrogation until the
principal of, any premium an interest on, and any Additional Amounts and sinking
fund payments required with respect to, all Guaranteed Securities shall have
been paid in full.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and [the corporate seal] of the Issuer to be hereunto affixed and
attested, as of the day and year first above written:
XXXX-XXXX REALTY, L.P.
By: Xxxx-Xxxx Realty Corporation
Partner
By:
-------------------------------
Name:
Title:
(Seal)
Attest:
---------------------------------
Title:
[ ]
-----------------------------------
By:
-------------------------------
Name:
Title:
Attest:
---------------------------------
Title:
79
EXHIBIT A
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED TO
RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST PAYABLE
PRIOR TO THE EXCHANGE DATE
(Insert title or sufficient description of Securities to be delivered).
This is to certify that, as of the 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 the United States,
domestic partnerships, 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 2.165-12(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
either case (a) or (b), each such United States financial institutions hereby
agrees, on its own behalf or through its agent, that you may advise the Price
REIT or its agent that such financial institutions will comply with the
requirements of Section l65(j)(3)(A),(B) or (C) of the United States Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii)
are owned by United States or foreign financial institutions) for purposes of
resale during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(l)(i)(D)(7), and, in addition, if the owner is
a United States or foreign financial institution described in clause (iii)
above (whether or not also described in clause (i) or (ii)), this 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 within the United States or its possessions.
As used herein, "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 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 with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This 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
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definitive Securities (or, if relevant, collection of any interest) cannot be
made until we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States if administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated 19__
(To be dated no earlier than the 15th 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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