EXHIBIT 4.02
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Corning Finance B.V.
ISSUER
and
Corning Incorporated
GUARANTOR
TO
The Chase Manhattan Bank
TRUSTEE
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INDENTURE
DATED AS OF JUNE __, 1999
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CORNING INCORPORATED
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
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Section 310(a) (1) ........................................ 609
(a) (2) ........................................ 609
(a) (3) ........................................ Not Applicable
(a) (4) ........................................ Not Applicable
(b)............................................. 608
610
Section 311(a)............................................. 613
(b)............................................. 613
Section 312(a)............................................. 701
702
(b)............................................. 702
(c)............................................. 702
Section 313(a)............................................. 703
(b)............................................. 703
(c)............................................. 703
(d)............................................. 703
Section 314(a)............................................. 704
(a) (4)......................................... 101
1004
(b)............................................. Not Applicable
(c) (1)......................................... 102
(c) (2)......................................... 102
(c) (3)......................................... Not Applicable
(d)............................................. Not Applicable
(e) ............................................ 102
Section 315(a)............................................. 601
(b)............................................. 602
(c)............................................. 601
(d)............................................. 601
(e)............................................. 514
Section 316(a)............................................. 101
(a) (1)(A) ..................................... 502
512
(a) (1)(B) ..................................... 513
(a) (2)......................................... Not Applicable
(b)............................................. 508
(c)............................................. 104
Section 317(a) (1)......................................... 503
(a) (2)......................................... 504
(b)............................................. 1003
Section 318(a)............................................. 107
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
INDENTURE, dated as of June __, 1999, among Corning Finance B.V., a
corporation duly organized and existing under the laws of The Netherlands
(herein called the "Company"), having its principal office at [address], Corning
Incorporated, a corporation duly organized and existing under the laws of the
State of New York (herein called the "Guarantor"), having its principal office
at Xxx Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000 and The Chase Manhattan Bank,
a New York banking corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
RECITALS OF THE GUARANTOR
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for the Guarantee of the Securities provided for herein.
All things necessary to make this Indenture a valid agreement of the
Guarantor, 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 agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, 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 Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture;
(5) 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; and
(6) when used with respect to any Security, the words "convert",
"converted" and "conversion" are intended to refer to the right of the
Holder or the Company to convert or exchange such Security into or for
securities or other property in accordance with such terms, if any, as may
hereafter be specified for such Security as contemplated by Section 301,
and these words are not intended to refer to any right of the Holder or
the Company to exchange such Security for other Securities of the same
series and like tenor pursuant to Section 304, 305, 306, 906 or 1107 or
another similar provision of this Indenture, unless the context otherwise
requires; and references herein to the terms of any Security that may be
converted mean such terms as may be specified for such Security as
contemplated in Section 301.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Additional Amounts" has the meaning specified in Section 1011.
"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.
"Applicable Procedures" of a Depositary means, with respect to any matter
at any time, the policies and procedures of such Depositary, if any, that are
applicable to such matter at such time.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by such Person
under such lease during the remaining term thereof, discounted from the
respective due date thereof to such date at a rate of 15% per annum compounded
semi-annually. The net amount of rent required to be paid under any such lease
for any such period shall be the amount of the rent payable by the lessee with
respect to such period, after excluding amounts required to be paid on account
of
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maintenance and repairs, insurance, taxes, assessments, water rates and similar
charges. In the case of any lease which is terminable by the lessee upon the
payment of a penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Board of Directors" means either the board of directors of the Company,
or the Guarantor, as the case may be, or any duly authorized committee of that
board.
"Board Resolution" when used with reference to the Company or the
Guarantor means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company or the Guarantor, as applicable, to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions or trust companies in that Place of Payment are authorized
or obligated by law or executive order to close; PROVIDED that, when used with
respect to any Security, "Business Day" may have such other meaning, if any, as
may be specified for such Security as contemplated by Section 301.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" 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 "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company, by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Controller, an Assistant Controller, its Secretary
or an Assistant Secretary or by any two other officers of the Company designated
in writing by or pursuant to authority of the Board of Directors and delivered
to the Trustee from time to time.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (a) all current liabilities (excluding any thereof constituting Funded
Debt by reason of being renewable or extendible) and (b) all goodwill, trade
names, trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the most recent balance sheet of the Guarantor
and its consolidated subsidiaries and computed in accordance with generally
accepted accounting principles.
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"Corporate Trust Office" means the principal office of the Trustee in New
York, New York at which at any particular time its corporate trust business
shall be administered, which at the date hereof is located at 000 Xxxx 00xx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"corporation" means a corporation, association, company (including a
limited liability company), joint-stock company, business trust or other similar
entity.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Debt" has the meaning specified in Section 1008.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
that is designated to act as Depositary for such Securities as contemplated by
Section 301.
"Domestic Subsidiary" means a Subsidiary, except a Subsidiary (a) which
neither transacts any substantial portion of its business nor regularly
maintains any substantial portion of its fixed assets within the States of the
United States, or (b) which is engaged primarily in financing the operations of
the Guarantor or its Subsidiaries, or both, outside the States of the United
States.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Funded Debt" means all indebtedness for money borrowed having a maturity
of more than 12 months from the date as of which the amount thereof is to be
determined or having a maturity of less than 12 months but by its terms being
renewable or extendible beyond 12 months from such date at the option of the
borrower.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Guarantee" means the guarantee by the Guarantor of any Security of any
series authenticated and delivered pursuant to this Indenture either (i) if
specified, as contemplated by Section 301, to be applicable to Securities of
such series and not endorsed on such Securities pursuant to Article Fourteen
hereof, or (ii) in all other cases, endorsed on such Security.
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"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.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and 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,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"Intercompany Debtor" has the meaning specified in Section 1108.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an instalment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Mortgage" has the meaning specified in Section 1008.
"Notice of Default" means a written notice of the kind specified in
Section 501(4).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President, a Sector President or a Vice
President, and by the Treasurer, an Assistant Treasurer, Controller, Assistant
Controller, the Secretary or an Assistant Secretary of the Company or the
Guarantor, as applicable, or by any two other officers of the Company or the
Guarantor, as applicable, designated in writing or pursuant to authority of the
Board of Directors and delivered to the Trustee from time to time. One of the
officers signing an Officers' Certificate given pursuant to Section 1004 shall
be the principal executive, financial or accounting officer of the Company or
the Guarantor, as applicable.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company or the Guarantor, and who shall be acceptable to the
Trustee.
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"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:
(1) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company or the Guarantor) in trust or set
aside and segregated in trust by the Company or the Guarantor (if the
Company or the Guarantor shall act as its own Paying Agent) for the
Holders of such Securities; PROVIDED that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satis factory to the Trustee has been
made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302;
(4) 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 Company; and
(5) Securities as to which any property deliverable upon conversion
thereof has been delivered (or such delivery has been duly provided for),
or as to which any other particular conditions have been satisfied, in
each case as may be provided for such Securities as contemplated in
Section 301;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original
Issue Discount Security which shall be deemed to be Outstanding shall be the
amount of the principal thereof which would be due and payable as of such
date upon acceleration of the Maturity thereof to such date pursuant to
Section 502, (B) if, as of such date, the principal amount payable at the
Stated Maturity of a Security is not determinable, the principal amount of
such Security which shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 301, (C) the principal
amount of a Security denominated in one or more foreign currencies, composite
currencies or currency units which shall be deemed to be Outstanding shall be
the U.S. dollar equivalent, determined as of such date in the manner provided
as contemplated by Section 301, of the principal amount of such Security (or,
in the case of a Security described in Clause (A) or (B) above, of the amount
determined as provided in such Clause), and (D) Securities owned by the
Company or the Guarantor or any other obligor upon the Securities or any
Affiliate of the Company or the Guarantor or of such other
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obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent, waiver or other
action, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or the
Guarantor or any other obligor upon the Securities or any Affiliate of the
Company or the Guarantor or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
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
and subject to Section 1002, means the place or places where the principal of
and any premium and interest on the Securities of that series are payable as
specified as contemplated by Section 301.
"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 shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Domestic Manufacturing Property" means any building, structure
or other facility, together with the land upon which it is erected and fixtures
comprising a part thereof, used primarily for manufacturing or warehousing and
located in the United States, owned or leased by the Guarantor or any Subsidiary
of the Guarantor, the gross book value (without deduction of any depreciation
reserves) of which on the date as of which the determination is being made
exceeds 3% of Consolidated Net Tangible Assets, other than any such building,
structure or other facility or portion thereof (i) which is an air or water
pollution control facility or an industrial revenue project financed by
obligations issued by a State or local governmental unit pursuant to Section
103(b)(4)(F), 103(b)(4)(E) or 103(b)(6) of the Internal Revenue Code, or any
successor provision thereof, or (ii) which, in the opinion of the Board of
Directors of the Guarantor, is not of material importance to the total business
conducted by the Guarantor and its Subsidiaries as an entirety.
"Redemption Date", when used with respect to any Security to be redeemed,
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.
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"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
vice president, any assistant treasurer, any trust officer or any other officer
of the Trustee, in each case, located in the Corporate Trust Office of the
Trustee, and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" means a manufacturing corporation more than 80% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
and as in force at the date as of which this instrument was executed; PROVIDED,
HOWEVER, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument 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, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Company, the Guarantor or
the Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
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SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company or the Guarantor to the
Trustee to take any action under any provision of this Indenture, the Company or
the Guarantor shall furnish to the Trustee such certificates and opinions as may
be required under the Trust Indenture Act. Each such certificate or opinion
shall be given in the form of an Officers' Certificate, if to be given by an
officer of the Company or the Guarantor, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition 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 exami nation or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the Guarantor
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of, or
representation by, counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company or the Guarantor stating that the information with
respect to such factual matters is in the possession of the Company or the
Guarantor, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company and
the Guarantor. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee, the Company and the Guarantor, if made in the manner provided in
this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved in any manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
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 or the Company or
the Guarantor in reliance thereon, whether or not notation of such action is
made upon such Security.
The Company or the Guarantor may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities of any series
entitled to give, make or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided or permitted by this Indenture
to be given, made or taken by Holders of Securities of such series, PROVIDED
that the Company or the Guarantor may not set a record date for, and the
provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other
Holders, shall be entitled to take the relevant action, whether or not such
Holders remain Holders after such record date; PROVIDED that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Company or the Guarantor from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect), and
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nothing in this paragraph shall be construed to render ineffective any action
taken by Holders of the requisite principal amount of Outstanding Securities of
the relevant series on the date such action is taken. Promptly after any record
date is set pursuant to this paragraph, the Company or the Guarantor, at its own
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Trustee in writing and to
each Holder of Securities of the relevant series in the manner set forth in
Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Xxxxxxx 000, (xxx) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; PROVIDED that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's or Guarantor's
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Company or the Guarantor
in writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; PROVIDED that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
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SECTION 105. NOTICES, ETC., TO TRUSTEE, COMPANY 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 or by the Company or the Guarantor
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,
Attention: Capital Market Fiduciary Services, or
(2) the Company 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 Company or the Guarantor, as applicable, addressed to it at the
address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for Notice of any event to a Holder of a
Global Security, such notice shall be sufficiently given if given to the
Depositary for such Security (or its designee), pursuant to its Applicable
Procedures, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice.
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SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company or the
Guarantor shall bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities or any
Guarantee shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining pro visions shall not in any way be affected or
impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities or any Guarantee, express
or implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Hold ers, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture, the Securities and the Guarantee shall be governed by and
construed in accordance with the law of the State of New York.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Maturity
of any Security, or any date on which a Holder has the right to convert his
Security, shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically
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states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any), or conversion of such Security need
not be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Maturity,
or on such date for conversion, as the case may be.
SECTION 114. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE OF
PROCESS.
The Company hereby appoints [CT Corporation System acting through its
office at 1633 Broadway, New York, New York] as its authorized agent (the
"Authorized Agent") upon which process may be served in any legal action or
proceeding against it with respect to its obligations under this Indenture or
the Securities of any series, instituted in any federal or state court in the
Borough of Manhattan, The City of New York by the Holder of any Security and
agrees that service of process upon such authorized agent, together with written
notice of said service to the Company by the Person serving the same addressed
as provided in Section 105, shall be deemed in every respect effective service
of process upon the Company, in any such legal action or proceeding, and the
Company hereby irrevocably submits to the non-exclusive jurisdiction of any such
court in respect of any such legal action or proceeding and waives any objection
it may have to the laying of the venue of any such legal action or proceeding.
Such appointment shall be irrevocable until all amounts in respect of the
principal of and any premium and interest due and to become due on or in respect
of all the Securities issued under this Indenture have been paid by the Company
or the Guarantor, as the case may be, to the Trustee pursuant to the terms
hereof, the Securities and the Guarantee. Notwithstanding the foregoing, the
Company reserves the right to appoint another Person located or with an office
in the Borough of Manhattan, The City of New York, selected in its discretion,
as a successor Authorized Agent, and upon acceptance of such appointment by such
a successor the appointment of the prior Authorized Agent shall terminate. The
Company shall give notice to the Trustee and all Holders of the appointment by
it of a successor Authorized Agent. If for any reason [CT Corporation System]
ceases to be able to act as the Authorized Agent or to have an address in the
Borough of Manhattan, The City of New York, the Company will appoint a successor
Authorized Agent in accordance with the preceding sentence. The Company further
agrees to take any and all action, including the filing of any and all documents
and instruments as may be necessary to continue such designation and appointment
of such agent in full force and effect until this Indenture has been satisfied
and discharged in accordance with Article Four or Article Thirteen hereof.
Service of process upon the Authorized Agent addressed to it at the address set
forth above, as such address may be changed within the Borough of Manhattan, The
City of New York by notice given by the Authorized Agent to the Trustee,
together with written notice of such service mailed or delivered to the Company
shall be deemed, in every respect, effective service of process on the Company.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
If Article Fourteen is to be applicable to Securities of any series,
established as contemplated by Section 301, then Securities of each such series
shall bear a Guarantee in substantially the form set forth in Section 206. For
any other series of Securities, the Guarantee shall be endorsed on the
Securities and shall be substantially in the form established by or pursuant to
Board Resolutions of the Guarantor in accordance with Section 301 or one or more
indentures supplemental hereto. Notwithstanding the foregoing the Guarantee or
the Guarantees to be endorsed on the Securities of any series may have such
appropriate insertions, omissions, substitutions and other corrections from the
forms thereof referred to above as are required or permitted by this Indenture
and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with the
rules of any securities exchange or as may, consistently herewith, be determined
by the Directors or officers delivering the same, in each case as evidenced by
such delivery.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
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SECTION 202. FORM OF FACE OF SECURITY.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
Corning Finance B.V.
.....................................
No. ......... $ ........
Corning Finance B.V., a corporation duly organized and existing under the
laws of The Netherlands (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ..........................................,
or registered assigns, the principal sum of ...................................
Dollars on ........................................................ [IF THE
SECURITY IS TO BEAR INTEREST PRIOR TO MATURITY, INSERT -- , and to pay interest
thereon from ............. or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on ............
and ............ in each year, commencing ........., and at the Maturity
thereof, at the rate of ....% per annum, until the principal hereof is paid or
made available for payment [IF APPLICABLE, INSERT -- , PROVIDED that any
principal and premium, and any such instalment of interest, which is overdue
shall bear interest at the rate of ...% per annum (to the extent that the
payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand]. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the ....... or .......
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest so payable, but not punctually paid or
duly provided for, on any Interest Payment Date will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid in any other lawful manner not inconsistent
with the requirements of any securities exchange on which this Security may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture].
[IF THE SECURITY IS NOT TO BEAR INTEREST PRIOR TO MATURITY, INSERT -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ....% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand.]
-16-
Payment of the principal of (and premium, if any) and [IF APPLICABLE,
INSERT -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in New York, New York, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts, against surrender of this
Security in the case of any payment due at the Maturity of the principal thereof
(other than any payment of interest that first becomes payable on a day other
than an Interest Payment Date); PROVIDED, HOWEVER, that at the option of the
Company, payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register;
and PROVIDED, FURTHER, that if this Security is a Global Security, payment may
be made pursuant to the Applicable Procedures of the Depositary as permitted in
said Indenture.
All payments of, or in respect of, principal of and any premium and
interest on this Security, shall be made without withholding or deduction for,
or on account of, any present or future taxes, duties, assessments or
governmental charges of whatever nature imposed or levied by or on behalf of The
Netherlands or any political subdivision or taxing authority thereof or therein,
unless such taxes, duties, assessments or governmental charges are required by
The Netherlands or any such subdivision or authority to be withheld or deducted.
In that event, the Company will pay such Additional Amounts as will result
(after deduction of such taxes, duties, assessments or governmental charges and
any additional taxes, duties, assessments or governmental charges payable in
respect of such) in the payment to the Holder of this Security of the amounts
which would have been payable in respect of this Security had no such
withholding or deduction been required, subject to certain exceptions as set
forth in Article Ten of the Indenture.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
-17-
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
Corning Finance B.V.
By:
----------------------------------
Name:
Title:
Attest:
...................................
SECTION 203. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of June __, 1999 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), among the Company, the Guarantor and The Chase Manhattan Bank, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Guarantor, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [IF APPLICABLE, INSERT -- , limited in aggregate principal
amount to $...........].
[IF APPLICABLE, INSERT -- The Securities of this series are subject to
redemption upon not less than 30 days' nor more than 60 days' notice, at any
time [IF APPLICABLE, INSERT -- on or after .........., 20..], as a whole or in
part, at the election of the Company, at the following
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Redemption Prices (expressed as percentages of the principal amount): If
redeemed [IF APPLICABLE, INSERT -- on or before ..............., ...%, and if
redeemed] during the 12-month period beginning ............. of the years
indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption with accrued interest to the
Redemption Date, but interest instalments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[IF APPLICABLE, INSERT -- This Security may be redeemed by the Company on
the terms set forth, and as more fully described, in the Indenture, in certain
circumstances where the Guarantor would be required to pay Additional Amounts in
respect hereof as a result of a change or amendment of any law, regulation or
published tax ruling of The Netherlands or of the applicable jurisdiction of any
Successor Person pursuant to Article Eight of the Indenture, or any political
subdivision or taxing authority thereof or therein, affecting taxation, or
change in the official administration, interpretation or application thereof, in
each case occurring after the issue date hereof or which change in such official
administration, interpretation or application shall not have been available to
the public prior to the issue date hereof, which change shall require the
Guarantor to pay Additional Amounts.]
[IF THE SECURITY IS SUBJECT TO REDEMPTION OF ANY KIND, INSERT -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[IF APPLICABLE, INSERT -- The Indenture contains provisions for defeasance
at any time of the entire indebtedness of this Security or certain restrictive
covenants and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth in the Indenture.]
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
-19-
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- INSERT FORMULA FOR DETERMINING THE
AMOUNT. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the Guarantor and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company, the
Guarantor and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of all series to be
affected (considered together as one class for this purpose). The Indenture also
contains provisions (i) permitting the Holders of a majority in principal amount
of the Securities at the time Outstanding of all series to be affected under the
Indenture (considered together as one class for this purpose), on behalf of the
Holders of all Securities of such series, to waive compliance by the Company or
the Guarantor, or both, with certain provisions of the Indenture and (ii)
permitting the Holders of a majority in principal amount of the Securities at
the time Outstanding of any series to be affected under the Indenture (with each
such series considered separately for this purpose), on behalf of the Holders of
all Securities of such series, to waive certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture (including the Guarantee), or for the appointment of a
receiver or trustee, or for any other remedy thereunder, unless such Holder
shall have previously given the Trustee written notice of a continuing Event of
Default with respect to the Securities of this series, the Holders of not less
than 25% in principal amount of the Securities of this series at the time
Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee indemnity reasonably satisfactory to it, and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities of
this series at the time Outstanding a direction inconsistent with such request,
and shall have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof or any premium or interest hereon on or after
the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and
-20-
unconditional, to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of Securities
of this series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company or the Guarantor, as the case may be, may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company, the Guarantor or the
Trustee may treat the Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Guarantor, the Trustee nor any such agent shall be
affected by notice to the contrary.
This Security is a Global Security and is subject to the provisions of the
Indenture relating to Global Securities, including the limitations in Section
305 thereof on transfers and exchanges of Global Securities.
This Security, the Guarantee and the Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
All terms used in this Security and the Guarantee which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
-21-
SECTION 204. FORM OF LEGEND FOR GLOBAL SECURITIES.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 205. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.
Dated:
The Chase Manhattan Bank
AS TRUSTEE
By.............................
AUTHORIZED SIGNATORY
SECTION 206. FORM OF GUARANTEE.
Corning Incorporated, a corporation duly organized and existing under the
laws of the State of New York (herein called the "Guarantor", which term
includes any successor Person under the Indenture (the "Indenture") referred to
in the Security on which this Guarantee is endorsed), has unconditionally
guaranteed, pursuant to the terms of the Guarantee contained in Article Fourteen
of the Indenture, the due and punctual payment of the principal of and any
premium and interest on such Security, when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration of acceleration, call
for redemption or otherwise, in accordance with the terms of such Security and
the Indenture.
All payments pursuant to this Guarantee shall be made without withholding
or deduction for, or on account of, any present or future taxes, duties,
assessments or governmental charges of whatever nature imposed or levied by or
on behalf of The Netherlands or the jurisdiction of organization of the
Successor Guarantor or any political
-22-
subdivision or taxing authority thereof or therein, unless such taxes, duties,
assessments or governmental charges are required by The Netherlands or such
other jurisdiction or any such subdivision or authority to be withheld or
deducted. In that event, the Guarantor will pay such Additional Amounts as will
result (after deduction of such taxes, duties, assessments or governmental
charges and any additional taxes, duties, assessments or governmental charges
payable in respect of such) in the payment to the Holder of the Security on
which this Guarantee is endorsed of the amounts which would have been payable in
respect of the Guarantee thereof had no such withholding or deduction been
required, subject to certain exceptions as set forth in Article 10 of the
Indenture.
Subject to certain limitations in the Indenture, at any time when the
Guarantor is not subject to Section 13 or 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), nor exempt from reporting requirements
pursuant to Rule 12g3-2(b) under the Exchange Act, upon the request of a Holder
of a Security or of a beneficial owner of an interest in a Global Security, the
Guarantor will promptly furnish or cause to be furnished Rule 144A Information
(as defined below) to such Holder or beneficial owner, or to a prospective
purchaser of a Security or a beneficial interest in a Global Security designated
by such Holder or beneficial owner of such interest in order to permit
compliance by such Holder or beneficial owner with Rule 144A under the
Securities Act of 1933 (the "Securities Act"). "Rule 144A Information" shall be
such information as is specified pursuant to Rule 144A(d)(4) under the
Securities Act (or any successor provision thereto).
The obligations of the Guarantor to the Holders of the Securities and to
the Trustee pursuant to the Guarantee and the Indenture are expressly set forth
in Article Fourteen of the Indenture, and reference is hereby made to such
Article and Indenture for the precise terms of the Guarantee.
The Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Security upon which this Guarantee is
endorsed shall have been executed by the Trustee under the Indenture by the
manual signature of one of its authorized signatories.
IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly
executed under its corporate seal.
Dated:
CORNING INCORPORATED
By:_____________________________________
Name:
Title:
Attest:
...................................
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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 or pursuant to a Board Resolution of the Company and the
Guarantor 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,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are deemed
never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a 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;
(4) the date or dates on which the principal of any Securities of
the series is payable;
(5) the rate or rates at which any Securities of the series shall
bear interest, if any, the date or dates from which any such interest
shall accrue, the Interest Payment Dates on which any such interest shall
be payable and the Regular Record Date for any such interest payable on
any Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable and the manner
in which any payment may be made;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which any Securities of the series may
be redeemed, in whole or in part, at the option of the Company and, if
other than by a Board Resolution, the manner in which any election by the
Company to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder
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thereof and the period or periods within which, the price or prices at
which and the terms and conditions upon which any Securities of the series
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any multiple thereof,
the denominations in which any Securities of the series shall be issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be
determined;
(11) if other than the currency of the United States of America, the
currency, currencies, composite currency, composite currencies or currency
units in which the principal of or any premium or interest on any
Securities of the series shall be payable and the manner of determining
the equivalent thereof in the currency of the United States of America for
any purpose, including for the purposes of making payment in the currency
of the United States of America and applying the definition of
"Outstanding" in Section 101;
(12) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company,
the Guarantor or the Holder thereof, in one or more currencies, composite
currencies or currency units other than that or those in which such
Securities are stated to be payable, the currency, currencies, composite
currency, composite currencies or currency units in which the principal of
or any premium or interest on such Securities as to which such election is
made shall be payable, the periods within which and the terms and
conditions upon which such election is to be made and the amount so
payable (or the manner in which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion
of the principal amount of any Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof pursuant
to Section 502;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any
purpose thereunder or hereunder, including the principal amount thereof
which shall be due and payable upon any Maturity other than the Stated
Maturity or which shall be deemed to be Outstanding as of any date prior
to the Stated Maturity (or, in any such case, the manner in which such
amount deemed to be the principal amount shall be determined);
(15) if the Securities will be entitled to the benefits of the
Guarantee afforded by Article Fourteen of the Indenture or, if not, the
form of the Guarantee to be endorsed on the Securities;
(16) if applicable, that the Securities of the series, in whole or
any specified part, shall be defeasible pursuant to Section 1302 or
Section 1303 or both such Sections, any
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provisions to permit a pledge of obligations other than U.S. Government
Obligations (or the establishment of other arrangements) to satisfy the
requirements of Section 1304(1) for defeasance of such Securities and, if
other than by a Board Resolution, the manner in which any election by the
Company to defease such Securities shall be evidenced;
(17) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities,
the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 204, any
addition to, elimination of or other change in the circumstances set forth
in Clause (2) of the last paragraph of Section 305 in which any such
Global Security may be exchanged in whole or in part for Securities
registered, and any transfer of such Global Security in whole or in part
may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof and any other
provisions governing exchanges or transfers of any such Global Security;
(18) any addition to, elimination of or other change in the Events
of Default which applies to any Securities of the series and any change in
the right of the Trustee or the requisite Holders of such Securities to
declare the principal amount thereof due and payable pursuant to Section
502;
(19) any addition to, elimination of or other change in the
covenants set forth in Article Ten which applies to Securities of the
series;
(20) any provisions necessary to permit or facilitate the issuance,
payment or conversion of any Securities of the series that may be
converted into securities or other property other than Securities of the
same series and of like tenor, whether in addition to, or in lieu of, any
payment of principal or other amount and whether at the option of the
Company or otherwise; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
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SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities and any Guarantee to be endorsed on the Securities shall be
executed on behalf of the Company by its [name of officers] and on behalf of the
Guarantor by its Chairman of the Board, one of its Vice Chairmen of the Board,
its President or one of its Sector Presidents or Vice President, in either case
under its corporate seal reproduced thereon attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the
Securities or any Guarantee, as the case may be, may be manual or facsimile. If
Article Fourteen is to be applicable to the Securities of any series,
established as contemplated by Section 301, then the Guarantee endorsed on the
Securities of such series shall be executed as provided in Section 1402.
Securities or any Guarantee bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company or the
Guarantor, as the case may be, shall bind the Company or the Guarantor, as the
case may be, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
Guarantee or did not hold such offices at the date of such Securities or the
Guarantee.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company bearing the Guarantee pursuant to Article Fourteen or having Guarantees
endorsed thereon, as applicable, in each case executed by the Guarantor, to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities. If the form or terms of
the Securities of the series have been established by or pursuant to one or more
Board Resolutions as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(1) if the form of such Securities or Guarantee has been established
by or pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities or Guarantees have been
established by or pursuant to Board Resolution as permitted by Section
301, that such terms have been established in conformity with the
provisions of this Indenture; and
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(3) that such Securities and the Guarantee(s) thereof, when such
Securities have been authenticated and delivered by the Trustee and issued
by the Company and the Guarantor in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company and the Guarantor,
respectively, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
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 or
immunities under the Securities, the Guarantees and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security or Guarantee shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security or Guarantee has been duly authenticated and delivered hereunder.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as provided in
Section 309, for all purposes of this Indenture such Security and any Guarantee
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture (including, if
applicable, the Guarantee pursuant to Article Fourteen).
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute delivery of the Guarantee endorsed or noted
thereon on behalf of the Guarantor. The Guarantor by its execution of this
Indenture hereby authorizes the Company, in the name and on behalf of the
Guarantor, to confirm the applicable Guarantee to the Holder of each Security
authenticated and delivered hereunder by its execution and delivery of each such
Security, with such Guarantee noted or endorsed thereon, authenticated and
delivered by the Trustee. When delivered pursuant to the provisions of Section
303 hereof, only Guarantees endorsed or noted on the Securities shall bind the
Guarantor notwithstanding the fact that the Guarantee does not bear the
signature of the Guarantor.
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SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute and the Guarantor may execute, as applicable, the Guarantee
pursuant to Article Fourteen or the Guarantee endorsed on, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities or Guarantees or notations of the Guarantee pursuant to Article
Fourteen as applicable, may determine, as evidenced by their execution of such
Securities or Guarantees or notations, as the case may be.
If temporary Securities of any series are issued, the Company 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 Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute, and the Guarantor
shall execute, as applicable, the Guarantee pursuant to Article Fourteen or the
Guarantee endorsed on, and the Trustee shall authenticate and deliver in
exchange therefor one or more definitive Securities of the same series, of any
authorized denominations and of like tenor and aggregate principal amount. 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 and tenor.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Guarantor shall execute, as applicable, the
Guarantee pursuant to Article Fourteen or the Guarantee endorsed on, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount and with the
Guarantee pursuant to Article Fourteen or the Guarantee endorsed thereon.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate
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principal amount and with the Guarantee pursuant to Article Fourteen or the
Guarantee endorsed thereon, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Guarantor shall execute the Guarantee on, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities and the Guarantee shall be the valid obligations of the Company 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 and the Guarantee thereof.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company or the Guarantor, as the case may be,
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 304, 906 or
1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, and
subject to such applicable provisions, if any, as may be specified as
contemplated by Section 301, no Global Security may be exchanged in whole
or in part for Securities registered, and no transfer of a Global Security
in whole or in part may be registered, in the name of any Person other
than the Depositary for such Global Security or a nominee thereof unless
(A) such Depositary has notified the Company that it (i) is unwilling or
unable to continue as Depositary for such Global Security or (ii) has
ceased to be a clearing agency registered under the Exchange Act, (B)
there shall have occurred and be continuing an
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Event of Default with respect to such Global Security or (C) the Company
has executed and delivered to the Trustee a Company Order stating that
such Global Security shall be exchanged in whole for Securities that are
not Global Securities (in which case such exchange shall promptly be
effected by the Trustee). If the Company receives a notice of the kind
specified in Clause (A) above or has delivered a Company Order of the kind
specified in Clause (C) above, it may, in its sole discretion, designate a
successor Depositary for such Global Security within 60 days after
receiving such notice or delivery of such order, as the case may be. If
the Company designates a successor Depositary as aforesaid, such Global
Security shall promptly be exchanged in whole for one or more other Global
Securities registered in the name of the successor Depositary, whereupon
such designated successor shall be the Depositary for such successor
Global Security or Global Securities and the provisions of Clauses (1),
(2), (3) and (4) of this Section shall continue to apply thereto.
(3) Subject to Clause (2) above and to such applicable provisions,
if any, as may be specified as contemplated by Section 301, any exchange
of a Global Security for other Securities may be made in whole or in part,
and all Securities issued in exchange for a Global Security or any portion
thereof shall be registered in such names as the Depositary for such
Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906
or 1107 or otherwise, shall be authenticated and delivered in the form of,
and shall be, a Global Security, unless such Security is registered in the
name of a Person other than the Depositary for such Global Security or a
nominee thereof.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Guarantor shall execute, as applicable, the Guarantee pursuant
to Article Fourteen or the Guarantee endorsed on, and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series
and of like tenor and principal amount, having the Guarantee pursuant to Article
Fourteen or the Guarantee endorsed thereon, as applicable, and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company, the Guarantor and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company, the Guarantor or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and the Guarantor
shall execute, as applicable, the Guarantee pursuant to Article Fourteen or the
Guarantee endorsed on, and the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount, having the Guarantee pursuant to
Article Fourteen or the Guarantee endorsed thereon, as applicable, and bearing a
number not contemporaneously outstanding.
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In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security, and the Guarantee thereof, shall
constitute an original additional contractual obligation of the Company or the
Guarantor, as the case may be, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Securities and Guarantees of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Except as otherwise provided as contemplated by Section 301 with respect
to any Securities of a series, interest on any Security which 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 (or, if no business is conducted by the Trustee at its
Corporate Trust Office on such date, at 5:00 P.M. New York City time on such
date).
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company or the Guarantor, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company or the Guarantor may elect to make payment of any
Defaulted Interest payable on any Securities of a series to the Persons in
whose names such Securities (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company or the Guarantor shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each of such
Securities and the date of the proposed payment, and at the same time the
Company or the Guarantor shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit 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
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the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company or the Guarantor of
such Special Record Date and, in the name and at the expense of the
Company or the Guarantor, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be given
to each Holder of such Securities in the manner set forth in Section 106,
not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names such Securities (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).
(2) The Company or the Guarantor may make payment of any Defaulted
Interest on any Securities of a series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company or the Guarantor to
the Trustee of the proposed payment pursuant to this Clause, such manner
of payment shall be deemed practicable by the Trustee.
Except as may otherwise be provided in this Section 307 or as contemplated
in Section 301 with respect to any Securities of a series, the Person to whom
interest shall be payable on any Security that first becomes payable on a day
that is not an Interest Payment Date shall be the Holder of such Security on the
day such interest is paid.
Subject to the foregoing provisions of this Section, 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.
In the case of any Security which is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior to such Interest Payment Date), interest
whose Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) 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 such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security which is converted, interest whose Stated Maturity is after the
date of conversion of such Security shall not be payable. Notwithstanding the
foregoing, the terms of any Security that may be converted may provide that the
provisions of this paragraph do not apply, or apply with such additions, changes
or omissions as may be provided thereby, to such Security.
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SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer, the
Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor
or the Trustee may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of principal of
and any premium and (subject to Section 307) any interest on such Security and
for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Guarantor, the Trustee nor any agent of the Company,
the Guarantor or the Trustee shall be affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or conversion or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly canceled by it. The Company or the
Guarantor may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company or the
Guarantor 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 Company has not
issued and sold, and all Securities so delivered shall be promptly canceled by
the Trustee. 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. All canceled Securities held by the Trustee shall
be dis posed of as directed by a Company Order.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. CUSIP NUMBERS.
The Company in issuing the Securities may use CUSIP numbers (if then
generally in use) and, if so, the Trustee shall use CUSIP numbers in notices of
redemption as a convenience to Holders, PROVIDED that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities. Any such redemption shall not be affected by any defect in or
omission of such numbers.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of conversion, registration of transfer or
exchange of any Security expressly provided for herein or in the terms of such
Security), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii) Securities
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company or the Guarantor and
thereafter repaid to the Company or the Guarantor, as the case may be, or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities 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) 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
Company,
and the Company or the Guarantor, in the case of (i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose money in an amount sufficient to
pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal
and any premium and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company or the Guarantor has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company and the Guarantor to the Trustee under Section 607,
the obligations of the Company to any Authenticating Agent under Section 614,
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of Clause (1) of this Section, the obligations of the Trustee under Section
402, any rights to Additional Amounts pursuant to Section 1011 and the last
paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all money
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 and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company or the Guarantor acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and any
premium and interest for whose payment such money has been deposited with the
Trustee. All moneys deposited with the Trustee pursuant to Section 401 (and held
by it or any Paying Agent) for the payment of Securities subsequently converted
shall be returned to the Company upon Company Request.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether 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 (including any Additional
Amount) upon any Security of that series when it becomes due and payable,
and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company or the Guarantor in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of series of
Securities
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other than that series), or, as the case may require, the Guarantee, and
continuance of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the Company and the
Guarantor by the Trustee or to the Company, the Guarantor and the Trustee
by the Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company or the Guarantor in
an involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company or the Guarantor a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or the Guarantor under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or the Guarantor or
of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect
for a period of 60 consecutive days; or
(6) the commencement by the Company or the Guarantor of a voluntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by it
to the entry of a decree or order for relief in respect of the Company or
the Guarantor in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company
or the Guarantor or of any substantial part of its property, or the making
by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company or the Guarantor in
furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities
of that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in
Section 501(5) or 501(6)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount of all the Securities
of that series (or, in the case of any Security of that series which specifies
an amount to be due and payable thereon upon acceleration of the Maturity
thereof, such amount as may be specified by the terms thereof) to be due and
payable immediately,
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by a notice in writing to the Company and the Guarantor (and to the Trustee if
given by Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable. If an Event of
Default specified in Section 501(5) or 501(6) with respect to Securities of any
series at the time Outstanding occurs, the principal amount of all the
Securities of that series (or, in the case of any Security of that series which
specifies an amount to be due and payable thereon upon acceleration of the
Maturity thereof, such amount as may be specified by the terms thereof) shall
automatically, and without any declaration or other action on the part of the
Trustee or any Holder, 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 a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company, the
Guarantor and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities
of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or
rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor 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 non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company and the Guarantor covenant that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for
a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Company and the Guarantor will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal and any premium and interest and, to
the extent that payment of such interest shall be legally enforceable, interest
on any overdue principal and premium and on any overdue interest, at the rate or
rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of col-
lection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company or the
Guarantor (or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such
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proceeding; PROVIDED, HOWEVER, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors' or other similar committee.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities or
the Guarantee may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the Guarantee thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of
and any premium and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal and any premium and interest, respectively; and
THIRD: The balance, if any, to the Company.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
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(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to it 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 of such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST AND TO CONVERT.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security pursuant to the terms thereof or the Guarantee thereof
(and any Additional Amounts) on the respective Stated Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date), and, if
the terms of such Security so provide, to convert such Security in accordance
with its terms, and to institute suit for the enforcement of any such payment
and, if applicable, any such right to convert, 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 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, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as 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 in the last paragraph of Section
306, no right or remedy
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herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Securities 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, as the case may
be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of 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, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
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 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 any premium or interest on
any Security of such series, 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 cured, for every purpose
of this Indenture;
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but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
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, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs,
including reasonable attorneys' fees and expenses, against any such party
litigant, in the manner and to the extent provided in the Trust Indenture Act;
PROVIDED that neither this Section nor the Trust Indenture Act shall be deemed
to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company or, if applicable, in any suit
for the enforcement of the right to convert any Security in accordance with its
terms.
SECTION 515. WAIVER OF USURY, STAY OR EXTENSION LAWS.
Each of the Company and the Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and each of the
Company and the Guarantor (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.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
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SECTION 602. NOTICE OF DEFAULTS.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by Section 315 of the Trust Indenture Act;
PROVIDED, HOWEVER, that in the case of any default of the character specified in
Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(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, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and the
written 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 pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness 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
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books, records and premises of the Company or the Guarantor, personally or
by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company
or the Guarantor, and neither the Trustee nor any Authenticating Agent assume
any responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities or the
Guarantees. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Trustee, the Company or the Guarantor, in
its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 608 and 613, may otherwise deal with the
Company and the Guarantor with the same rights it would have if it were not
Trustee, Paying Agent, Authenticating Agent, Security Registrar or such other
agent.
SECTION 606. 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 in writing with the Company or the Guarantor, as the case may be.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the
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Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its 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.
In the event the Company fails to make any such payments, the Guarantor
agrees to make such payments on its behalf which agreement shall survive the
resignation or removal of any Trustee and the satisfaction and discharge of this
Indenture.
SECTION 608. CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $50,000,000 and has its Corporate Trust Office
in the Borough of Manhattan, The City of New York. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person 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 with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
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 611.
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The Trustee may resign at any time with respect to the Securities of one
or more series by giving written notice thereof to the Company and the
Guarantor. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 60 days after
the giving of such notice of resignation, the resigning Trustee may petition, at
the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
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
Company and the Guarantor.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or the Guarantor or by any Holder 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 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, 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, (A) the Company or the Guarantor by a Board Resolution
may remove the Trustee with respect to all Securities, or (B) subject to Section
514, any Holder 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.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company and the
Guarantor, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to
the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of
Section 611. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the Guarantor and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 611, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed
by the Company and the Guarantor. If no successor Trustee with respect to the
Securities of any series shall have been so appointed
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by the Company and the Guarantor or the Holders and accepted appointment in
the manner required by Section 611, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided 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 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Trustee with respect
to all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and 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, on the
request of the Company, 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.
In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the
Guarantor, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with
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respect to the Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company, the Guarantor 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.
Upon request of any such successor Trustee, the Company and the Guarantor
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
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 612. 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 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 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 so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company or
the Guarantor (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Company or the Guarantor (or any such other obligor).
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
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 original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, 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. 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
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authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and the Guarantor and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to 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 authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said 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. If 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 any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company and the Guarantor. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company and the
Guarantor. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the
Company and the Guarantor and shall give notice of such appointment in the
manner provided in Section 106 to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
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 the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
...............................,
AS TRUSTEE
By.............................,
AS AUTHENTICATING AGENT
By..............................
AUTHORIZED OFFICER
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY AND GUARANTOR TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company and the Guarantor will furnish or cause to be furnished to the
Trustee
(1) semi-annually, not later than January 15 and July 15 in each
year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities of each series as of the
immediately preceding December 31 or June 30, as the case may be, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company, or the Guarantor, as the
case may be, of any such request, a list of similar form and content as of
a date not more than 15 days prior to the time such list is furnished;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in
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its capacity as Security Registrar. The Trustee may destroy any list furnished
to it as provided in Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities or the Guarantee, and
the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company, the Guarantor and the Trustee that none of the Company, the
Guarantor, the Trustee, or any agent of either of them shall be held accountable
by reason of any disclosure of information as to names and addresses of Holders
made pursuant to the Trust Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange and
of any delisting thereof.
SECTION 704. REPORTS BY COMPANY AND GUARANTOR.
The Company and the Guarantor shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
PROVIDED that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY OR GUARANTOR MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
Neither the Company nor the Guarantor shall consolidate with or merge into
any other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and neither the Company nor the
Guarantor shall permit any Person to
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consolidate with or merge into the Company or the Guarantor or convey, transfer
or lease its properties and assets substantially as an entirety to the Company
or the Guarantor, unless:
(1) in case the Company or the Guarantor shall consolidate with or
merge into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the Person formed by
such consolidation or into which the Company or the Guarantor is merged or
the Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company or the Guarantor substantially as an
entirety shall be a corporation, partnership or trust, shall be organized
and validly existing, in the case of the Guarantor, under the laws of the
United States, any State thereof or the District of Columbia and, in the
case of the Company, under the laws of any jurisdiction, and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, in the case
of the Company, the due and punctual payment of the principal of and any
premium and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the Company
to be performed or observed, and, in the case of the Guarantor, the due
and punctual performance of the Guarantee (including any obligation to pay
any Additional Amounts) and the performance or observance of every
covenant of this Indenture on the part of the Guarantor to be performed or
observed, and, for each Security that by its terms provides for
conversion, shall have provided for the right to convert such Security in
accordance with its terms;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or the
Guarantor or any Subsidiary as a result of such transaction as having been
incurred by the Company or the Guarantor or such Subsidiary at the time of
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;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a pledge, lien or other similar encumbrance which would
not be permitted by this Indenture, the Company or such successor Person,
as the case may be, shall take such steps as shall be necessary effec-
tively to secure the Securities equally and ratably with (or prior to) all
indebtedness secured thereby;
(4) any Person formed by the consolidation with the Company or into
which the Company is merged or which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company, substantially
as an entirety and which is not organized and validly existing under the
laws of the United States, any State thereof or the District of Columbia
shall expressly agree, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, to
indemnify the Holder of each Security against (A) any Additional Amounts
imposed on such Holder or required to be withheld or deducted from any
payment to such Holder as a consequence of such consolidation, merger,
conveyance, transfer or lease, and (B) any costs or expenses of the act of
such consolidation, merger, conveyance, transfer or lease; and
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(5) the Company has 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.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company or the Guarantor with, or merger of
the Company or the Guarantor into, any other Person or any conveyance, transfer
or lease of the properties and assets of the Company or the Guarantor
substantially as an entirety in accordance with Section 801, the successor
Person formed by such consolidation or into which the Company or 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
Company or the Guarantor under this Indenture with the same effect as if such
successor Person had been named as the Company or the Guarantor herein, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities or the Guarantees, as the case may be.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the Guarantor, when
authorized by a Board Resolution of the Company and the Guarantor, as
applicable, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the Company or
the Guarantor and the assumption by any such successor of the covenants of
the Company or the Guarantor herein and in the Securities and any
Guarantee; or
(2) to add to the covenants of the Company 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 Company 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 additional Events
of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are expressly
being included solely for the benefit of such series); or
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(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, PROVIDED that
any such addition, change or elimination (A) shall neither (i) apply to
any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor
(ii) modify the rights of the Holder of any such Security with respect to
such provision or (B) shall become effective only when there is no such
Security Outstanding; or
(6) to secure the Securities or the Guarantee pursuant to the
requirements of Section 801(3) or Section 1005 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 611; or
(9) to add to or change any of the provisions of this Indenture with
respect to any Securities that by their terms may be converted into
securities or other property other than Securities of the same series and
of like tenor, in order to permit or facilitate the issuance, payment or
conversion of such Securities; or
(10) 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, PROVIDED that such action pursuant
to this Clause (10) shall not adversely affect the interests of the
Holders of Securities of any series in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of a majority in principal amount of the
Outstanding Securities of all series affected by such supplemental indenture
(considered together as one class for this purpose), by Act of said Holders
delivered to the Company, the Guarantor and the Trustee, the Company and the
Guarantor, when authorized by a Board Resolution of the Company and the
Guarantor, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; PROVIDED, HOWEVER, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
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(1) change the Stated Maturity of the principal of, or any
instalment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or change any obligation of the
Company or the Guarantor to pay any Additional Amounts or reduce the
amount of the principal of an Original Issue Discount Security or any
other Security which would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or permit
the Company to redeem any Security if, absent such supplemental indenture,
the Company would not be permitted to do so, or change any Place of
Payment where, or the coin or currency in which, any Security or any
premium or interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) if any Security provides that the Holder may require the Company
to repurchase or convert such Security, impair such Holder's right to
require repurchase or conversion of such Security on the terms provided
therein, or
(3) reduce the percentage in principal amount of the Outstanding
Securities of any one or more series (considered separately or together as
one class, as applicable), the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or
(4) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; PROVIDED, HOWEVER, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1010, or the deletion of this proviso, in accordance with the
requirements of Sections 611 and 901(8), or
(5) change in any manner adverse to the interests of the Holders of
Securities of any series the terms and conditions of the obligations of
the Guarantor in respect of the due and punctual payment of the principal
thereof and any premium and interest thereon (and any Additional Amounts
in respect thereof) or any sinking fund payments provided in respect
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.
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.
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SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) 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 any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
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.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company and the
Guarantor shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company and the Guarantor, to any
such supplemental indenture may be prepared and executed by the Company, the
Guarantees endorsed thereon may be prepared and executed by the Guarantor and
such Securities may be authenticated and delivered by the Trustee in exchange
for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
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The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange, where Securities may be surrendered
for conversion and where notices and demands to or upon the Company in respect
of the Securities of that series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; PROVIDED, HOWEVER, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
The Guarantor will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment pursuant to any Guarantee and where notices and
demands to or upon the Guarantor in respect of any Guarantee and this Indenture
may be served. The Guarantor will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Guarantor shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Guarantor hereby appoints the Trustee as
its agent to receive all such presentations, surrenders and demands.
The Guarantor may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for such purpose or where such notices or demands may be served
and may from time to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the Guarantor of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Guarantor 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.
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With respect to any Global Security, and except as otherwise may be
specified for such Global Security as contemplated by Section 301, the Corporate
Trust Office of the Trustee shall be the Place of Payment where such Global
Security may be presented or surrendered for payment or for registration of
transfer or exchange, or where successor Securities may be delivered in exchange
therefor, PROVIDED, HOWEVER, that any such payment, presentation, surrender or
delivery effected pursuant to the Applicable Procedures of the Depositary for
such Global Security shall be deemed to have been effected at the Place of
Payment for such Global Security in accordance with the provisions of this
Indenture.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company or the Guarantor shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or before each due
date of the principal of or any premium or interest on any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest 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 Company shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit (or, if the
Company has deposited any trust funds with a trustee pursuant to Section
1304(1), cause such trustee to deposit) with a Paying Agent a sum sufficient to
pay such amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company or the Guarantor (or any other obligor
upon the Securities of that series) in the making of any payment in respect of
the Securities or any Guarantee of that series, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company or the Guarantor, in trust for the payment of the principal of or
any premium or interest on any Security of any series and remaining unclaimed
for two years after such
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principal, premium, interest or Additional Amounts has become due and payable
shall be paid to the Company or the Guarantor on Company Request, or (if then
held by the Company or the Guarantor) shall be discharged from such trust; and
the Holder of such Security shall thereafter, as an unsecured general creditor,
look only to the Company or the Guarantor for payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; PROVIDED,
HOWEVER, that the Trustee or such Paying Agent, before being required to make
any such repayment, may, at the expense of the Company or the Guarantor, cause
to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in The
City of New York, 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 Company or the Guarantor.
SECTION 1004. STATEMENT BY OFFICERS AS TO DEFAULT.
Each of the Company and the Guarantor will deliver to the Trustee, within
120 days after the end of each fiscal year of the Guarantor ending after the
date hereof (which, as of the date hereof, is December 31), an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company or the Guarantor, as the case may be, is in default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company or the Guarantor shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge.
SECTION 1005. EXISTENCE.
Subject to Article Eight, each of the Company 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 (charter and statutory) and franchises; PROVIDED,
HOWEVER, that neither the Company nor the Guarantor shall be required to
preserve any such right or franchise if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Guarantor and its Subsidiaries taken as a whole, or of the
Company, as the case may be.
SECTION 1006. MAINTENANCE OF PRINCIPAL DOMESTIC MANUFACTURING PROPERTIES.
The Guarantor each will cause all Principal Domestic Manufacturing
Properties to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Guarantor, as the case may be, may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; PROVIDED, HOWEVER, that nothing in this
Section shall prevent or restrict the sale, abandonment or other disposition of
any of such properties if such action is, in the judgment of the Guarantor,
desirable in the conduct of its business.
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SECTION 1007. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company and the Guarantor each will pay or discharge or cause to be
paid or discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the Guarantor or the
Company or any Subsidiary or upon the income, profits or property of the
Guarantor or the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary; PROVIDED, HOWEVER, that the Company
or the Guarantor, as the case may be, shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 1008. LIMITATION ON LIENS.
The Guarantor will not itself, and will not permit any Domestic Subsidiary
to, incur, issue, assume or guarantee any notes, bonds, debentures or other
similar evidences of indebtedness for money borrowed (notes, bonds, debentures
or other similar evidences of indebtedness for money borrowed being hereinafter
in this article called "Debt"), secured by pledge of, or mortgage or other lien
on, any Principal Domestic Manufacturing Property of the Guarantor or any
Domestic Subsidiary or any shares of stock or Debt of any Domestic Subsidiary
(pledges, mortgages and other liens being hereinafter in this article called
"Mortgage" or "Mortgages"), without effectively providing that the Securities
(together with, if the Guarantor shall so determine, any other Debt of the
Guarantor or such Domestic Subsidiary then existing or thereafter created which
is not subordinate to the Securities) shall be secured equally and ratably with
(or prior to) such secured Debt (for the purpose of providing such equal and
ratable security the principal amount of the Securities shall mean and shall not
be less than that principal amount which could be declared to be due and payable
pursuant to Section 502 on the date of the making of such effective provision
and the extent of such equal and ratable security shall be adjusted, to the
extent permitted by law, as and when said principal amount changes over time
pursuant to Section 502 and any other provision hereof), so long as such secured
Debt shall be so secured, unless, after giving effect thereto, the aggregate
amount of all such secured Debt would not exceed 10% of Consolidated Net
Tangible Assets; PROVIDED, HOWEVER, that this Section shall not apply to, and
there shall be excluded from secured debt in any computation under this Section,
Debt secured by:
(1) Mortgages on property of, or on any shares of stock or Debt of,
any corporation existing at the time such corporation becomes a Domestic
Subsidiary or as of the date of first issuance by the Guarantor of
Securities pursuant to this Indenture;
(2) Mortgages in favor of the Guarantor or any Domestic Subsidiary;
(3) mechanic's liens, tax liens, Mortgages in favor of any
governmental body to secure progress, advance or other payments or the
acquisition of real or personal property from such governmental body
pursuant to any contract or provision of any statute, and other Mortgages
incidental to construction, to the conduct of business or to the ownership
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of property of the Guarantor or any Domestic Subsidiary which were not
incurred in connection with the borrowing of money or the obtaining of
advances or credits or the acquisition of property and do not in the
aggregate materially impair the use of any Principal Domestic
Manufacturing Property for the purposes for which it is held or which are
being contested in good faith by the Guarantor or such Domestic
Subsidiary;
(4) Mortgages on property, shares of stock or Debt existing at the
time of acquisition thereof (including acquisition through merger or
consolidation) or to secure the cost of acquiring, substantially repairing
or altering, constructing, developing or substantially improving all or
any part of such property or to secure Debt incurred to provide funds for
any such purpose or for reimbursement of funds previously expended for any
such purpose, provided the commitment of the creditor to extend the credit
secured by any such mortgage shall have been obtained not later than 180
days after the later of (a) the completion of the acquisition, substantial
repair or alteration, construction, development or substantial improvement
of such property or (b) the placing in operation of such property or of
such property as so substantially repaired or altered, constructed,
developed or substantially improved;
(5) Mortgages arising by reason of any judgment, decree or order of
any court, so long as any appropriate legal proceedings which may have
been initiated for the review of such judgment, decree or order shall not
have been finally terminated or so long as the period within which such
proceedings may be initiated shall not have expired; any deposit or pledge
with any surety company or clerk of any court, or in escrow, as collateral
in connection with, or in lieu of, any bond on appeal from any judgment or
decree against the Guarantor or any Domestic Subsidiary, or in connection
with other proceedings or actions at law or in equity by or against the
Guarantor or any Subsidiary; and
(6) any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Mortgage referred
to in the foregoing clauses (1) to (5), inclusive; PROVIDED that (i) such
extension, renewal or replacement Mortgage shall be limited to all or a
part of the same property, shares of stock or Debt that secured the
Mortgage extended, renewed or replaced (plus improvements on such
property) and (ii) the Debt secured by such Mortgage at such time is not
increased.
SECTION 1009. LIMITATION ON SALES AND LEASEBACKS.
(a) The Guarantor will not itself, and it will not permit any Domestic
Subsidiary to, enter into any arrangement with any bank, insurance company or
other lender or investor (not including the Guarantor or any Domestic
Subsidiary) or to which any such lender or investor is a party, providing for
the leasing by the Guarantor or any such Domestic Subsidiary for a period,
including renewals, in excess of three years of any Principal Domestic
Manufacturing Property which has been or is to be sold or transferred (except
for any lease of property acquired after the date of the initial issuance of
Securities pursuant to this Indenture if the rent payable by the Guarantor or
such Domestic Subsidiary thereunder is to be reimbursed under a contract with
the government of the United States or any instrumentality or agency thereof),
more than 180 days after the completion of construction and commencement of full
operation thereof, by the Guarantor or any such Domestic Subsidiary to such
lender or investor or to any Person to whom funds have been or are to be
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advanced by such lender or investor on the security of such Principal Domestic
Manufacturing Property (herein referred to as a "sale or leaseback transaction")
unless the Guarantor, within 180 days after the sale or transfer shall have been
made by the Guarantor or by any such Domestic Subsidiary, applies an amount
equal to the greater of (i) the net proceeds of the sale of the Principal
Domestic Manufacturing Property sold and leased back pursuant to such
arrangement or (ii) the fair market value of the Principal Domestic
Manufacturing Property so sold and leased back at the time of entering into such
arrangement (as determined by any two of the following: the Chairman of the
Board or any Vice Chairman of the Company, its President, any Sector President
or Vice President of the Company, its Treasurer and its Controller) to the
retirement of Funded Debt of the Guarantor; PROVIDED, that the amount to be
applied to the retirement of Funded Debt of the Guarantor shall be reduced by
(a) the principal amount at Stated Maturity of any Securities delivered within
180 days after such sale to the Trustee for retirement and cancellation, and (b)
the principal amount of Funded Debt, other than Securities, voluntarily retired
by the Guarantor within 180 days after such sale. Notwithstanding the foregoing,
no retirement referred to in this clause (2) may be effected by payment at
maturity or pursuant to any mandatory sinking fund payment or any mandatory
prepayment provision.
(b) Notwithstanding the provisions of Section 1009(a), the Guarantor or any
Domestic Subsidiary may enter into a sale and leaseback transaction which would
otherwise be subject to the restrictions set forth in the provisions of Section
1009(a) so as to create an aggregate amount of Attributable Debt which, together
with all Attributable Debt outstanding pursuant to this Section 1009(b), does
not exceed 10% of Consolidated Net Tangible Assets.
SECTION 1010. WAIVER OF CERTAIN COVENANTS.
Except as otherwise specified as contemplated by Section 301 for
Securities of a specific series, the Company and the Guarantor may, with respect
to the Securities of any one or more series, omit in any particular instance to
comply with any term, provision or condition set forth in any covenant provided
pursuant to Section 301(18), 901(2) or 901(7) for the benefit of the Holders of
such series or in any of Sections 1006 to 1009 inclusive if, before the time for
such compliance, the Holders of a majority in principal amount of the
Outstanding Securities of all series affected by such waiver (considered
together as one class for this purpose) shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
Guarantor and the duties of the Trustee in respect of any such term, provision
or condition shall remain in full force and effect.
SECTION 1011. ADDITIONAL AMOUNTS
All payments of, or in respect of, principal of and any premium and
interest on the Securities, and all payments pursuant to any Guarantee, shall be
made without withholding or deduction for, or on account of, any present or
future taxes, duties, assessments or governmental charges of whatever nature
imposed or levied by or on behalf of The Netherlands or any political
subdivision or taxing authority thereof or therein, unless such taxes, duties,
assessments or governmental charges are required by The Netherlands or any such
subdivision or authority to be withheld or deducted. In that event, the Company
or the
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Guarantor, as applicable, will pay such additional amounts of, or in respect of,
principal and any premium and interest ("Additional Amounts") as will result
(after deduction of such taxes, duties, assessments or governmental charges and
any additional taxes, duties, assessments or governmental charges payable in
respect of such) in the payment to each Holder of a Security of the amounts
which would have been payable in respect of such Security or the Guarantee
thereof, as the case may be, had no such withholding or deduction been required,
except that no Additional Amounts shall be so payable for or on account of:
(1) any tax, duty, assessment or other governmental charge imposed
by the United States or any political subdivision or taxing authority
thereof or therein;
(2) any tax, duty, assessment or other governmental charge which
would not have been imposed but for (A) the existence of any present or
former connection between such Holder (or between a fiduciary, settlor,
beneficiary, member, shareholder or possessor of a power over such Holder,
if such Holder is an estate, trust, partnership or corporation) and The
Netherlands, including, without limitation, such Holder (or such
fiduciary, settlor, beneficiary, member, shareholder or possessor) being
or having been a citizen, national or resident thereof, or being or having
been engaged in business or present therein or having or having had a
permanent establishment therein, but not including the mere holding or
ownership of a debt security, or the collection of principal of and
interest on, or the enforcement of, a debt security, or (B) the
presentation of such Security or the Guarantee thereof for payment more
than 30 days after the date on which such payment became due or was
provided for, whichever is later;
(3) any estate, inheritance, gift, sale, transfer, personal property
or similar tax, assessment or other governmental charge or any other tax,
assessment or other governmental charge which is payable otherwise than by
withholding or deduction from payments of (or in respect of) principal of
or any premium or interest on the Securities or the Guarantee(s) thereof;
(4) any tax, assessment or other governmental charge that is imposed
or withheld by reason of the failure to comply by the Holder or the
beneficial owner of a Security with a request of the Company or the
Guarantor addressed to the Holder (A) to provide information concerning
the nationality, residence or identity of the Holder or such beneficial
owner or (B) to make any declaration or other similar claim or satisfy any
information or reporting requirement, which, in the case of (A) or (B), is
required or imposed by statute, treaty, regulation or administrative
practice of the taxing jurisdiction as a precondition to exemption from
all or part of such tax, assessment or other governmental charge; or
(5) any combination of items (1), (2), (3) and (4).
Additionally, Additional Amounts shall not be paid with respect to any
payment in respect of any Security to any Holder who is a fiduciary or
partnership or other than the sole beneficial owner of such payment to the
extent such payment would be required by the laws of The Netherlands (or any
political subdivision or taxing authority thereof or therein) to be included in
the income for tax purposes of a beneficiary or settlor with respect to such
fiduciary or a member of such partnership or a beneficial owner who would not
have been entitled to such additional amounts had it been the Holder of such
Security.
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Whenever in this Indenture there is mentioned, in any context, the payment
of the principal of or any premium or interest on, or in respect of, any
Security of any series (or any payments pursuant to the Guarantee thereof) such
mention shall be deemed to include mention of the payment of Additional Amounts
provided for in this Section to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof pursuant to the
provisions of this Section and express mention of the payment of Additional
Amounts in any provisions hereof shall not be construed as excluding Additional
Amounts in those provisions hereof where such express mention is not made.
The provisions of this Section 1011 shall apply mutatis mutandis to any
withholding or deduction for or on account of any present or future taxes,
assessments or governmental charges of whatever nature of any jurisdiction in
which any successor Person to the Company is organized, or any political
subdivision or taxing authority thereof or therein.
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 such Securities) in accordance with
this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be established
in or pursuant to a Board Resolution or in another manner specified as
contemplated by Section 301 for such Securities. In case of any redemption at
the election of the Company of less than all the Securities of any series
(including any such redemption affecting only a single Security), the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee 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 (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), 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
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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 a portion of the principal amount of any Security of such
series, PROVIDED that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security. If less than all the
Securities of such series and of a specified tenor are to be redeemed (unless
such redemption affects only a single Security), 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 and specified tenor
not previously called for redemption in accordance with the preceding sentence.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed (so
far as may be) to be the portion selected for redemption. Securities which have
been converted during a selection of Securities to be redeemed shall be treated
by the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company and each Security Registrar
in writing of the Securities selected for redemption as aforesaid and, in case
of any Securities selected for partial redemption as aforesaid, the principal
amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 days nor more than 60 days prior to the Redemption Date,
to each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers, if any) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to
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be redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal amount
of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be
surrendered for payment of the Redemption Price,
(6) for any Securities that by their terms may be converted, the
terms of conversion, the date on which the right to convert the Security
to be redeemed will terminate and the place or places where such
Securities may be surrendered for conversion, and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date, other than any Securities called for
redemption on that date which have been converted prior to the date of such
deposit.
If any Security called for redemption is converted, any money deposited
with the Trustee or with any Paying Agent or so segregated and held in trust for
the redemption of such Security shall (subject to any right of the Holder of
such Security or any Predecessor Security to receive interest as provided in the
last paragraph of Section 307 or in the terms of such Security) be paid to the
Company upon Company Request or, if then held by the Company, shall be
discharged from such trust.
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, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; PROVIDED, HOWEVER, that, unless otherwise specified as
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contemplated by Section 301, instalments of interest whose Stated Maturity is on
or prior to the Redemption Date will 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 Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, the Guarantor shall
execute the Guarantee pursuant to Article Fourteen or the Guarantee endorsed on,
and the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series and of
like tenor, 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.
SECTION 1108. OPTIONAL REDEMPTION DUE TO CHANGES IN TAX TREATMENT.
Each series of Securities may be redeemed at the option of the Company or
the Guarantor (or their successors) in whole but not in part at any time (except
in the case of Securities that have a variable rate of interest, which may be
redeemed on any Interest Payment Date) at a Redemption Price equal to the
principal amount thereof plus accrued interest to the date fixed for redemption
(except in the case of Outstanding Original Issue Discount Securities which may
be redeemed at the Redemption Price specified by the terms of such series of
Securities) if, (i) the Company is or would be required to pay Additional
Amounts as a result of any change in or amendment to the laws or any regulations
or rulings promulgated thereunder of The Netherlands (or in the case of a
successor Person to the Company, of the jurisdiction in which such successor
Person is organized or any political subdivision or taxing authority thereof or
therein) or any change in the official application or interpretation of such
laws, regulations or rulings, or any change in the official application or
interpretation of, or any execution of or amendment to, any treaty or treaties
affecting taxation to which The Netherlands (or such other jurisdiction or
political subdivision or taxing authority) is a party,
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which change, execution or amendment becomes effective on or after the date of
issuance of such series pursuant to Section 301(7) (or in the case of a
successor Person to the Company, the date on which such successor Person became
such or in the case of an assumption by the Guarantor or its Subsidiaries of
obligations of the Company under the Securities, the date of such assumption),
or (ii) as a result of any change in the official application or interpretation
of, or any execution of or amendment to, any treaty or treaties affecting
taxation to which The Netherlands (or in the case of a successor Person to the
Company, to which the jurisdiction in which such successor Person is organized
or any political subdivision or taxing authority thereof or therein) is a party,
which change, execution or amendment becomes effective on or afer a date on
which the Guarantor or any of its Subsidiaries (an "Intercompany Debtor")
borrows money from the Company, the Intercompany Debtor is or would be required
to deduct or withhold tax on any payment to the Company to enable the Company to
make any payment of principal, premium, if any, or interest, and the payment of
such Additional Amounts, in the case of clause (i) or such deductions or
withholding, in the case of clause (ii) cannot be avoided by the use of any
reasonable measures available to the Company, the Guarantor or the Intercompany
Debtor. Prior to the giving of notice of redemption of such Securities pursuant
to this Indenture, the Company will deliver to the Trustee an Officers'
Certificate, stating that the Company is entitled to effect such redemption and
setting forth in reasonable detail a statement of circumstances showing that the
conditions precedent to the right of the Company to redeem such Securities
pursuant to this Section have been satisfied.
Further, if, pursuant to Section 801(4) of this Indenture, a Person into
which the Company is merged or to whom the Company has conveyed, transferred or
leased its properties or assets has been or would be required to pay any
Additional Amounts as therein provided, each series of Securities may be
redeemed at the option of such Person in whole, but not in part, at any time
(except in the case of Securities that have a variable rate of interest, which
may be redeemed on any Interest Payment Date), at a redemption price equal to
the principal amount thereof plus accrued interest to the date fixed for
redemption (except in the case of Outstanding Original Issue Discount Securities
which may be redeemed at the Redemption Price specified by the terms of such
series of Securities). Prior to the giving of notice of redemption of such
Securities pursuant to this Indenture, such Person shall deliver to the Trustee
an Officers' Certificate, stating that such Person is entitled to effect such
redemption and setting forth in reasonable detail a statement of circumstances
showing that the conditions precedent to the right of such Person to redeem such
Securities pursuant to this Section have been satisfied.
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 any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms
of any Securities 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 is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
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SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been converted in accordance with their terms or which
have been redeemed either at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to any Securities of
such series required to be made pursuant to the terms of such Securities as and
to the extent provided for by the terms of such Securities; PROVIDED that the
Securities to be so credited have not been previously so credited. The
Securities to be so credited shall be received and credited for such purpose by
the Trustee at the Redemption Price, as specified in the Securities so to be
redeemed (or at such other prices as may be specified for such Securities as
contemplated in Section 301), for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days prior to each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company and the Guarantor may elect, at their option at any time, to
have Section 1302 or Section 1303 applied to any Securities or any series of
Securities, as the case may be, designated pursuant to Section 301 as being
defeasible pursuant to such Section 1302 or 1303, in accordance with any
applicable requirements provided pursuant to Section 301 and upon compliance
with the conditions set forth below in this Article. Any such election shall be
evidenced by a Board Resolution or in another manner specified as contemplated
by Section 301 for such Securities.
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SECTION 1302. DEFEASANCE AND DISCHARGE.
Upon the exercise of their option (if any) to have this Section applied to
any Securities or any series of Securities, as the case may be, the Company and
the Guarantor shall be deemed to have been discharged from their respective
obligations with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 1304 are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means that
the Company and the Guarantor shall be deemed to have paid and discharged the
entire indebtedness represented by such Securities and to have satisfied all its
other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), subject to the following
which shall survive until otherwise terminated or discharged hereunder: (1) the
rights of Holders of such Securities to receive, solely from the trust fund
described in Section 1304 and as more fully set forth in such Section, payments
in respect of the principal of and any premium and interest on such Securities
when payments are due, (2) the Company's and the Guarantor's obligations with
respect to such Securities under Sections 304, 305, 306, 1002, 1003 and 1011 (to
the extent then unknown), (3) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (4) this Article. Subject to compliance with this
Article, the Company or the Guarantor may exercise its option (if any) to have
this Section applied to any Securities notwithstanding the prior exercise of its
option (if any) to have Section 1303 applied to such Securities.
SECTION 1303. COVENANT DEFEASANCE.
Upon the exercise of the option (if any) of the Company and the Guarantor
to have this Section applied to any Securities or any series of Securities, as
the case may be, (1) the Company and the Guarantor shall be released from their
respective obligations under Section 801(3) and Sections 1006 through 1009,
inclusive, and any covenants provided pursuant to Section 301(18), 901(2) or
901(7) for the benefit of the Holders of such Securities and (2) the occurrence
of any event specified in Section 501(4) (with respect to any of Section 801(3)
and Sections 1006 through 1009, inclusive , and any such covenants provided
pursuant to Section 301(18), 901(2) or 901(7)) and 501(7) shall be deemed not to
be or result in an Event of Default, in each case with respect to such
Securities as provided in this Section on and after the date the conditions set
forth in Section 1304 are satisfied (hereinafter called "Covenant Defeasance").
For this purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such specified
Section (to the extent so specified in the case of Section 501(4)), whether
directly or indirectly by reason of any reference elsewhere herein to any such
Section or by reason of any reference in any such Section to any other provision
herein or in any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
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SECTION 1304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of Section 1302
or Section 1303 to any Securities or any series of Securities, as the case may
be:
(1) The Company or the Guarantor shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee which
satisfies the requirements contemplated by Section 609 and agrees to
comply with the provisions of this Article 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
benefits of the Holders of such Securities, (A) money in an amount, or (B)
U.S. Government Obligations 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,
money in an amount, or (C) such other obligations or arrangements as may
be specified as contemplated by Section 301 with respect to such
Securities, or (D) a combination thereof, in each case 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 any such
other qualifying trustee) to pay and discharge, the principal of and any
premium and interest (and any Additional Amounts then known) on such
Securities and any Additional Amounts then known thereon on the respective
Stated Maturities, in accordance with the terms of this Indenture and such
Securities. As used herein, "U.S. Government Obligation" means (x) any
security which is (i) a direct obligation of the United States of America
for the payment of which the full faith and credit of the United States of
America is pledged or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which,
in either case (i) or (ii), is not callable or redeemable at the option of
the issuer thereof, and (y) any depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with
respect to any U.S. Government Obligation which is specified in Clause (x)
above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal
of or interest on any U.S. Government Obligation which is so specified and
held, 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 depositary receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal or interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, the Company or
the Guarantor shall have delivered to the Trustee an Opinion of Counsel
stating that (A) the Company or the Guarantor has received from, or there
has been published by, the Internal Revenue Service a ruling or (B) since
the date of this instrument, there has been a change in the applicable
Federal income tax law, in either case (A) or (B) to the effect that, and
based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for Federal income tax purposes
as a result of the deposit, Defeasance and discharge to be effected with
respect to such Securities and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be the
case if such deposit, Defeasance and discharge were not to occur.
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(3) In the event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the Company or
the Guarantor shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Securities will not recognize gain or
loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such Securities and
will be subject to Federal income tax on the same amount, in the same
manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Company or the Guarantor shall have delivered to the Trustee
an Officers' Certificate to the effect that neither such Securities nor
any other Securities of the same series, if then listed on any securities
exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to such Securities or any
other Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 501(5) and
(6), at any time on or prior to the 90th day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning
of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company or the Guarantor is a party or by which
it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be
registered under the Investment Company Act or exempt from registration
thereunder.
(9) The Company or the Guarantor shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
SECTION 1305. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section and
Section 1306, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company or the
Guarantor
-73-
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in respect of
principal and any premium and interest, but money so held in trust need not be
segregated from other funds except to the extent required by law.
The Company or the Guarantor, as the case may be, shall pay and indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against
the U.S. Government Obligations deposited pursuant to Section 1304 or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of Outstanding
Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company or the Guarantor, as the case may be, from
time to time upon Company Request any money or U.S. Government Obligations held
by it as provided in Section 1304 with respect to any Securities 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 the Defeasance or Covenant Defeasance, as the case may be, with respect
to such Securities.
SECTION 1306. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company and the Guarantor, have
been discharged or released pursuant to Section 1302 or 1303 shall be revived
and reinstated as though no deposit had occurred pursuant to this Article with
respect to such Securities, until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 1305 with respect
to such Securities in accordance with this Article; PROVIDED, HOWEVER, that if
the Company or the Guarantor makes any payment of principal of or any premium or
interest on any such Security following such reinstatement of its obligations,
the Company or the Guarantor shall be subrogated to the rights (if any) of the
Holders of such Securities to receive such payment from the money so held in
trust.
ARTICLE FOURTEEN
GUARANTEE OF SECURITIES
SECTION 1401. GUARANTEE
This Section 1401 and Section 1402 applies to the Securities of any series
to the extent that the form of the Guarantee to be endorsed on such Securities
is not otherwise established as contemplated by Section 301.
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The Guarantor hereby unconditionally guarantees to each Holder of a
Security of each series authenticated and delivered by the Trustee the due and
punctual payment of the principal (including any amount due in respect of
original issue discount) of and any premium and interest on such Security, and
the due and punctual payment of any sinking fund payments provided for pursuant
to the terms of such Security, when and as the same shall become due and
payable, whether at the Stated Maturity, by declaration of acceleration, call
for redemption or otherwise, in accordance with the terms of such Security and
of this Indenture. The Guarantor hereby agrees that its obligations hereunder
shall be as if it were a principal debtor and not merely a surety, and shall be
absolute and unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of any Security of any series or
this Indenture, any failure to enforce the provisions of any Security of any
series or this Indenture, any waiver, modification or indulgence granted to the
Company with respect thereto, by the Holder of any Security of any series or the
Trustee, or any other circumstances which may otherwise constitute a legal or
equitable discharge of a surety or guarantor; PROVIDED, HOWEVER, that,
notwithstanding the foregoing, no such waiver, modification or indulgence shall,
without the consent of the Guarantor, increase the principal amount of a
Security or the interest rate thereon or increase any premium payable upon
redemption thereof. The Guarantor hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of merger or bankruptcy
of the Company, any right to require a proceeding first against the Company, the
benefit of discussion, protest or notice with respect to any Security or the
indebtedness evidenced thereby or with respect of any sinking fund payment
required pursuant to the terms of a Security issued under this Indenture and all
demands whatsoever, and covenants that this Guarantee will not be discharged
with respect to any Security except by payment in full of the principal thereof
and any premium and interest thereon or as provided in Article Four, Section 802
or Article Thirteen. The Guarantor further agrees that, as between the
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
the Maturity of the obligations guaranteed hereby may be accelerated as provided
in Article Five hereof for the purposes of this Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby.
The Guarantor shall be subrogated to all rights of each Holder of
Securities against the Company 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
and any premium and interest on all the Securities of the same series and of
like tenor shall have been paid in full.
No past, present or future stockholder, officer, director, employee or
incorporator of the Guarantor shall have any personal liability under the
Guarantee set forth in this Section 1401 by reason of his or its status as such
stockholder, officer, director, employee or incorporator.
The Guarantee set forth in this Section 1401 shall not be valid or become
obligatory for any purpose with respect to a Security until the certificate of
authentication on such Security shall have been signed by or on behalf of the
Trustee.
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SECTION 1402. EXECUTION OF GUARANTEE
To evidence its guarantee to the Holders specified in Section 1401, the
Guarantor hereby agrees to execute the Guarantee in substantially the form set
forth in Section 206 to be endorsed on each Security authenticated and delivered
by the Trustee. The Guarantor hereby agrees that its Guarantee set forth in
Section 1401 shall remain in full force and effect notwithstanding any failure
to endorse on each Security such Guarantee. Each such Guarantee shall be signed
on behalf of the Guarantor, by its Chairman of the Board, one of its Vice
Chairmen of the Board, its President or one of its Sector Presidents or Vice
Presidents, prior to the authentication of the Security on which it is endorsed,
and the delivery of such Security by the Trustee, after the due authentication
thereof by the Trustee hereunder, shall constitute due delivery of the Guarantee
on behalf of the Guarantor. Such signatures upon the Guarantee may be manual or
facsimile signatures of any present, past or future such officers and may be
imprinted or otherwise reproduced below the Guarantee, and in case any such
officer who shall have signed the Guarantee shall cease to hold such offices
before the Security on which such Guarantee is endorsed shall have been
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed the Guarantee had not ceased to hold such office of
the Guarantor.
-----------------------------
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
CORNING FINANCE B.V.
By...................................
Attest:
...................................
CORNING INCORPORATED
By ____________________________
Attest:
...................................
THE CHASE MANHATTAN BANK
By...................................
Attest:
...................................
-00-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On the .... day of ..........., ...., before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he is .................... of Corning Finance B.V, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
.............................
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the .... day of ..........., ...., before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he is .................... of Corning Incorporated, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
.............................
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the .... day of ..........., ...., before me personally came
..........................., to me known, who, being by me duly sworn, did
depose and say that he is .................... of The Chase Manhattan Bank, one
of the corporations described in and which executed the foregoing instrument;
that he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his name thereto by
like authority.
.............................
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TABLE OF CONTENTS
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PAGE
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PARTIES ............................................................... 1
RECITALS OF THE COMPANY................................................. 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions........................................... 1
Act ............................................. 2
Additional Amounts.................................... 2
Affiliate............................................. 2
Applicable Procedures................................. 2
Attributable Debt..................................... 2
Authenticating Agent.................................. 3
Board of Directors.................................... 3
Board Resolution...................................... 3
Business Day.......................................... 3
Commission............................................ 3
Company ............................................. 3
Company Request or Company Order...................... 3
Consolidated Net Tangible Assets...................... 3
Corporate Trust Office................................ 4
corporation........................................... 4
Covenant Defeasance................................... 4
Debt ............................................. 4
Defaulted Interest.................................... 4
Defeasance............................................ 4
Depositary............................................ 4
Domestic Subsidiary................................... 4
Event of Default...................................... 4
Exchange Act.......................................... 4
Expiration Date....................................... 4
Funded Debt........................................... 4
Global Security....................................... 4
Guarantee............................................. 4
Guarantor............................................. 5
Holder ............................................. 5
Indenture............................................. 5
Intercompany Debtor................................... 5
interest ............................................. 5
Interest Payment Date................................. 5
--------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
PAGE
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Investment Company Act................................ 5
Maturity ............................................. 5
Mortgage ............................................. 5
Notice of Default..................................... 5
Officers' Certificate................................. 5
Opinion of Counsel.................................... 5
Original Issue Discount Security...................... 6
Outstanding........................................... 6
Paying Agent.......................................... 7
Person ............................................. 7
Place of Payment...................................... 7
Predecessor Security.................................. 7
Principal Domestic Manufacturing Property............. 7
Redemption Date....................................... 7
Redemption Price...................................... 7
Regular Record Date................................... 8
Responsible Officer................................... 8
Securities............................................ 8
Securities Act........................................ 8
Security Register" and "Security Registrar............ 8
Special Record Date................................... 8
Stated Maturity....................................... 8
Subsidiary............................................ 8
Trust Indenture Act................................... 8
Trustee ............................................. 8
U.S. Government Obligation............................ 8
Vice President........................................ 8
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.................. 9
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE................ 9
SECTION 104. ACTS OF HOLDERS; RECORD DATES......................... 10
SECTION 105. NOTICES, ETC., TO TRUSTEE, COMPANY AND GUARANTOR...... 12
SECTION 106. NOTICE TO HOLDERS; WAIVER............................. 12
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT..................... 13
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.............. 13
SECTION 109. SUCCESSORS AND ASSIGNS................................ 13
SECTION 110. SEPARABILITY CLAUSE................................... 13
SECTION 111. BENEFITS OF INDENTURE................................. 13
SECTION 112. GOVERNING LAW......................................... 13
SECTION 113. LEGAL HOLIDAYS........................................ 13
SECTION 114. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT
FOR SERVICE OF PROCESS................................ 14
ii
PAGE
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ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY....................................... 15
SECTION 202. FORM OF FACE OF SECURITY.............................. 16
SECTION 203. FORM OF REVERSE OF SECURITY........................... 18
SECTION 204. FORM OF LEGEND FOR GLOBAL SECURITIES.................. 22
SECTION 205. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION....... 22
SECTION 206. FORM OF GUARANTEE..................................... 22
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.................. 24
SECTION 302. DENOMINATIONS......................................... 27
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING........ 27
SECTION 304. TEMPORARY SECURITIES.................................. 29
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE... 29
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES...... 31
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED........ 32
SECTION 308. PERSONS DEEMED OWNERS................................. 34
SECTION 309. CANCELLATION.......................................... 34
SECTION 310. COMPUTATION OF INTEREST............................... 34
SECTION 311. CUSIP NUMBERS......................................... 34
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE............... 35
SECTION 402. APPLICATION OF TRUST MONEY............................ 36
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT..................................... 36
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.... 37
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE........................................... 39
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM...................... 39
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES........................................... 40
SECTION 506. APPLICATION OF MONEY COLLECTED........................ 40
iii
PAGE
SECTION 507. LIMITATION ON SUITS................................... 40
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST AND TO CONVERT................... 41
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.................... 41
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE........................ 41
SECTION 511. DELAY OR OMISSION NOT WAIVER.......................... 42
SECTION 512. CONTROL BY HOLDERS.................................... 42
SECTION 513. WAIVER OF PAST DEFAULTS............................... 42
SECTION 514. UNDERTAKING FOR COSTS................................. 43
SECTION 515. WAIVER OF USURY, STAY OR EXTENSION LAWS............... 43
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES................... 43
SECTION 602. NOTICE OF DEFAULTS.................................... 44
SECTION 603. CERTAIN RIGHTS OF TRUSTEE............................. 44
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES .......................................... 45
SECTION 605. MAY HOLD SECURITIES................................... 45
SECTION 606. MONEY HELD IN TRUST................................... 45
SECTION 607. COMPENSATION AND REIMBURSEMENT........................ 45
SECTION 608. CONFLICTING INTERESTS................................. 46
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY............... 46
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR..... 47
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR................ 48
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS............................................. 49
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY..... 49
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT................... 50
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY AND GUARANTOR TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF HOLDERS ............................... 51
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS.............................................. 52
SECTION 703. REPORTS BY TRUSTEE.................................... 52
SECTION 704. REPORTS BY COMPANY AND GUARANTOR...................... 52
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY OR GUARANTOR MAY CONSOLIDATE, ETC.,
ONLY ON CERTAIN TERMS................................. 53
SECTION 802. SUCCESSOR SUBSTITUTED................................. 54
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.... 54
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS....... 56
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.................. 57
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES..................... 57
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT................... 57
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.... 57
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST............ 58
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY....................... 58
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST..... 59
SECTION 1004. STATEMENT BY OFFICERS AS TO DEFAULT................... 60
SECTION 1005. EXISTENCE............................................. 60
SECTION 1006. MAINTENANCE OF PRINCIPAL DOMESTIC MANUFACTURING
PROPERTIES............................................ 61
SECTION 1007. PAYMENT OF TAXES AND OTHER CLAIMS...................... 61
SECTION 1008. LIMITATION ON LIENS.................................... 61
SECTION 1009. LIMITATION ON SALES AND LEASEBACKS..................... 63
SECTION 1010. WAIVER OF CERTAIN COVENANTS............................ 63
SECTION 1011. ADDITIONAL AMOUNTS..................................... 64
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE............................... 65
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.................. 65
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED...... 66
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SECTION 1104. NOTICE OF REDEMPTION................................... 67
SECTION 1105. DEPOSIT OF REDEMPTION PRICE............................ 67
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.................. 68
SECTION 1107. SECURITIES REDEEMED IN PART............................ 68
SECTION 1108. OPTIONAL REDEMPTION DUE TO CHANGES IN TAX TREATMENT.... 68
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE............................... 70
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.. 70
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.............. 70
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE............................................ 71
SECTION 1302. DEFEASANCE AND DISCHARGE............................... 71
SECTION 1303. COVENANT DEFEASANCE.................................... 72
SECTION 1304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE........ 72
SECTION 1305. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; MISCELLANEOUS PROVISIONS............... 74
SECTION 1306. REINSTATEMENT.......................................... 74
ARTICLE FOURTEEN
GUARANTEE OF SECURITIES
SECTION 1401. GUARANTEE .............................................. 75
SECTION 1402. EXECUTION OF GUARANTEE.................................... 76
TESTIMONIUM ....................................................... 79
SIGNATURES AND SEALS..................................................... 79
ACKNOWLEDGEMENTS......................................................... 80
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